The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3040-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT SMALL,
Defendant-Appellant.
___________________________
Submitted June 5, 2019 – Decided July 3, 2019
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Indictment No. 05-10-
3971.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Nancy Philion Scharff,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Robert Small represented himself during the jury trial that
resulted in his convictions for first-degree attempted murder, N.J.S.A. 2C:5-1
and 2C:11-3(a) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2)
(count three); third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d) (count five). On January 25, 2008, defendant was
sentenced as a persistent offender, N.J.S.A. 2C:44-3(a), to an aggregate thirty-
five year term of imprisonment subject to the No Early Release Act, N.J.S.A.
2C:43-7.2(a).
On November 17, 2017, the Honorable Frederick J. Schuck, J.S.C., denied
defendant's petition for post-conviction relief. Judge Schuck attached to his
order a detailed schedule explaining, as to each of defendant's twenty-five points
of error contained in his pro se submissions, the bar to consideration found in
the rules. Ten points were barred by Rule 3:22-4 ("any ground for relief not
raised . . . in any appeal taken . . . is barred from assertion in a proceeding under
this rule. . . ."). Rule 3:22-5 ("a prior adjudication upon the merits of any ground
for relief is conclusive . . .") barred the remaining fifteen.
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The appeal does not challenge – nor could it with any reasonable
expectation of success – Judge Schuck's decision. Instead, defendant raises two
points he did not argue to Judge Schuck. We affirm.
The brutal assault in this case, in which the victim suffered at least ten
stab wounds, including one which caused his lung to collapse, occurred on May
23, 2005. Defendant's convictions were affirmed on direct appeal. State v.
Robert Small, Docket No. A-3552-07 (App. Div. July 7, 2011). The Supreme
Court denied defendant's petition for certification. State v. Small, 209 N.J. 232
(2012).
Of relevance to this decision is a misstatement by the prosecutor,
concurred with by defense counsel during the argument on defendant's motion
for self-representation. Initially, the court advised defendant that if convicted,
he could be sentenced to seventy-eight years with forty-two and a half years of
parole ineligibility. The prosecutor interrupted and said defendant was not
eligible for extended term sentencing under the persistent offender statute,
because he may have been only nineteen-years-old when one of the predicate
offenses was committed. The judge then changed course, and advised defendant
his exposure was twenty years for the attempted murder, twenty years for armed
robbery, and ten years for aggravated assault, all subject to NERA. Later in the
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hearing, the judge asked defendant to state his sentence potential. Defendant
replied, "[twenty] years for attempted murder, [twenty] years for . . . armed
robbery, [ten] years for . . . aggravated assault, . . . [five] years for . . . possession
of a weapon. . . ." Defendant's motion was granted.
Some six months later, defendant's standby counsel, during a pretrial
proceeding referred to the fact that if found to be a persistent offender, for which
defendant "qualifies technically[,]" he could be sentenced to life, eighty-five
percent of which would be served without parole. A few minutes later, counsel
repeated that defendant could be sentenced to life.
Prior to trial, on several occasions, the judge asked defendant to confirm
that he wished to continue to represent himself. Defendant reiterated his intent
to do so in the strongest of terms. At one point, in pretrial hearings, the judge
said to defendant "[t]he odds are you are going to go to jail for the rest of your
life," to which defendant responded, "[c]orrect." Twice in that same proceeding,
defendant referred to his potential maximum sentence as "a hundred years."
Turning to the PCR petition, PCR counsel filed a brief in which she argued
an evidentiary hearing was necessary because the hearing transcript on
defendant's motion to represent himself could not be located. Without it, no one
could be certain that an adequate colloquy took place. The brief was withdrawn
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because the transcript was located shortly before oral argument on defendant's
PCR petition.
At oral argument, counsel said she was "authorized" by defendant to
withdraw the brief, which had become moot because of the discovery of the
transcript, but that he still wanted the judge to rule on the points raised in his
PCR submission. She also mentioned that defendant had "authorized" her to
make no oral argument in support of his pro se issues. Counsel added, toward
the end of that hearing, that defendant had not asked her to raise any additional
argument.
Now on appeal, defendant contends:
POINT I - DEFENDANT'S CONVICTIONS MUST
BE REVERSED BECAUSE APPELLATE
AND PCR COUNSEL WERE
INEFFECTIVE FOR FAILING TO
RAISE DEFENDANT'S NOT
KNOWINGLY AND INTELLIGENTLY
WAIVING HIS RIGHT TO COUNSEL;
IN THE ALTERNATIVE, THIS
MATTER MUST BE REMANDED FOR
AN EVIDENTIARY HEARING
BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE
OF COUNSELS' INEFFECTIVENESS.
(Not Raised Below).
POINT II - THIS MATTER MUST BE REMANDED
FOR A NEW PCR HEARING FOR
COUNSEL TO ADVANCE
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DEFENDANT'S CLAIMS. (Not Raised
Below).
We find no merit to these arguments. R. 2:11-3(e)(2).
It is well established that in order for a defendant to obtain relief based on
ineffective assistance of counsel, he must demonstrate not only the particular
manner in which counsel's performance was deficient, but also that the
deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466
U.S. 668, 687 (1984). We are persuaded that the alleged deficiencies here
clearly fail to meet either the performance or prejudice prongs of the Strickland
test. Defendant has not demonstrated any deficiency on the part of appellate or
PCR counsel.
Defendant claims his appeal and PCR attorneys were ineffective because
neither argued that his waiver of his right to counsel was not knowing and
intelligent, because he was misinformed as to the length of any potential
sentence. Although we agree that there was a misstatement, as defendant was
extended-term eligible, we do not agree that he did not know the risks of
proceeding pro se. This defendant was fully aware, as documented in the record,
that he could spend the rest of his natural days in prison if convicted. Not only
did the judge say it to him, defendant said it himself. Counsel cannot be faulted
for failing to make arguments that would have failed. See State v. DiFrisco, 174
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N.J. 195, 236 (2002). Defendant knew the length of imprisonment he faced and
was adamant that he wanted to represent himself.
In his second point, defendant contends PCR counsel was ineffective for
failing to argue on defendant's behalf. We note that counsel had no real
alternative but to withdraw her brief when, shortly before the PCR oral argument
date, the transcript of the waiver hearing was discovered. Even a cursory review
of the transcript establishes that defendant made a knowing, intelligent and
voluntary waiver of his right to counsel after a searching inquiry by the trial
judge. After defendant's motion was granted, the judge extended opportunities
to proceed with counsel.
We also note that defendant "authorized" counsel not to argue in support
of the twenty-five points he submitted in his pro se brief. Given that all those
issues were either addressed on appeal, or could have been addressed on appeal,
those arguments would have failed.
Neither point on appeal satisfies the first prong of Strickland. Neither
point satisfies the second. Neither counsel's representation prejudiced
defendant's right to a fair disposition. These arguments lack sufficient merit to
warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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