PER CURIAM.
Defendant Clayon Godfrey appeals from the November 9, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
On June 30, 1999, a Somerset County grand jury indicted Godfrey for first-degree attempted murder,
Godfrey was tried before a jury from April 4, 2000 to April 6, 2000. He absconded on the penultimate day of trial and was consequently indicted for third-degree bail jumping,
On January 5, 2001, Godfrey was sentenced on both charges. The sentencing court imposed a fifteen-year prison term subject to the No Early Release Act (NERA),
We affirmed the convictions and sentence,
On March 13, 2006, Godfrey filed a pro se petition for PCR, which was later followed by the assignment of counsel and the submission of both the pro se's and PCR counsel's briefs to the Law Division. Following an unexplained withdrawal of the petition and its subsequent reinstatement, a hearing was conducted by the Law Division on November 8, 2010. Although several claims of ineffective assistance of counsel were presented, PCR counsel indicated that
On November 9, 2010, Judge John H. Pursel issued a fourteen-page written opinion explaining why Godfrey had "not made a prima facie showing that he [was] entitled to an evidentiary hearing on his illegal sentence claim or his ineffective assistance of counsel claim," and denied relief. This appeal followed.
Godfrey reprises his ineffective assistance of counsel claims as follows:
Our review of the record convinces us that Judge Pursel properly denied PCR.
At trial, the State's proofs demonstrated the following. On the evening of June 6, 1999, Godfrey and the victim had an argument outside of the Edgemere Apartment complex in Franklin Township. At some point the argument became physical, and the men began grabbing at each other. Godfrey left the scene but came back later and the argument ensued anew. Godfrey then fired a gun at his cousin, and a bullet hit him in the chest, after which Rachiem ran away.
April Tibbs witnessed the argument between Rachiem and Godfrey. According to Tibbs, she was sitting on her steps with Godfrey's mother, Myra Godfrey, when she overheard Rachiem and Godfrey arguing. Subsequently, Godfrey came up to Tibbs and Myra and said "if [Rachiem] kept bothering him... he might have to go get his gun." Tibbs then went inside her apartment and later overheard more arguing between the cousins. She then heard three gunshots and testified that Godfrey ran into her home and said that he had shot Rachiem. She further observed Godfrey throw a gun under her sofa.
Lateisha Wilson also witnessed the incident. She claimed that the men were arguing about money. She observed Godfrey run inside, come back downstairs, shoot Rachiem, then run inside Tibbs's apartment. Like Tibbs, she claims she heard three gunshots.
After the jury verdict and subsequent guilty plea to bail jumping, Godfrey was sentenced. Judge Edward M. Coleman heard argument from the State and defense counsel. Defense counsel contended that Godfrey's criminal record consisted of mostly juvenile and disorderly persons offenses, with only one indictable offense. He noted that Godfrey maintained his innocence, thus the fact that he was not remorseful should not be used against him. He described the events — "[i]f as the jury found, this did happen" — as a "very unfortunate offense, very unfortunate set of circumstances, [where] we find one cousin shooting another at point blank range, there must have been some strong forces at work." He advocated for a lenient sentence due to Godfrey's young age and claimed that his client only fled during the trial due fear of being unjustly convicted.
At the conclusion of the argument, Judge Coleman complimented defense counsel for his strong advocacy. The judge then reviewed the aggravating and mitigating factors of
Godfrey claims that his trial counsel was ineffective for failing to present all mitigating evidence to the sentencing court and failing to object to the sentencing court's "double counting" of certain aggravating factors. Godfrey further contends that his appellate attorney was ineffective for not arguing on direct appeal that defense counsel was thusly ineffective. We disagree with both contentions.
We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in
First, Godfrey must demonstrate that counsel's performance was deficient.
Additionally, the Court has counseled that
The specific mitigating factors Godfrey claims his trial counsel failed to argue were: "(3) The defendant acted under strong provocation; (4) [t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense; [and] (5) [t]he victim of the defendant's conduct induced or facilitated its commission."
A sentencing court should consider all valid mitigating factors.
Here, the record indicates Godfrey's trial counsel was a zealous advocate at all stages of trial, including sentencing. He was placed in a difficult situation due to the State's strong evidence, Godfrey's flight, and his client's lack of remorse. Although trial counsel did not specifically mention mitigating factors three through five, he did state "there must have been some strong forces at work" to cause Godfrey to shoot his cousin. The sentencing judge had presided over the trial and was very familiar with the facts, including the nature of the cousins' argument and Godfrey's conduct on the day in question. There was no justification for Godfrey shooting Rachiem under the circumstances presented. Even if tempers had flared, he had time to cool off when they first separated. Instead, he contemplated getting his gun, went inside and retrieved the firearm, and then went back outside and purposely used it against Rachiem.
This is not a situation like
Godfrey also claims that trial counsel was ineffective for failing to object to Judge Coleman's "double counting" of aggravating factors by relying on a juvenile record for the basis of finding aggravating factors three, six, and nine.
It is also worth noting that Godfrey argued on direct appeal that Judge Coleman improperly failed to consider mitigating factors and improperly applied the aggravating factors.
Godfrey further contends that the PCR court should not have dismissed his petition without allowing an opportunity to provide further support for his claims at an evidentiary hearing. "An evidentiary hearing... is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero,
To the extent we have not discussed any issue raised in this appeal, we are satisfied that it lacks sufficient merit to warrant discussion in a written opinion.
Affirmed.