Date: 04-22-2016

Case Style: STATE OF NEW JERSEY v. JOHN C. BLANN, a/k/a JOHN C. BLAND

Case Number: A-2554-14T2

Judge: Karen L. Suter

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: John J. Santoliquido, James P. McClain

Defendant's Attorney: Robert Carter Pierce

Description: Following a bench trial, defendant John C. Blann was
convicted of two counts of first-degree robbery, N.J.S.A. 2C:15
1 and one count of second-degree robbery, N.J.S.A. 2C:15-1. The
trial judge denied the State's motion for an extended term, and
following appropriate mergers, sentenced defendant to eighteen
years in State prison, subject to the periods of parole
ineligibility and supervision required by the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2.
We reversed defendant's conviction on direct appeal based
on the lack of an effective jury waiver, State v. Blann, 429
N.J. Super. 220, 233 (App. Div. 2013), with one member of the
panel dissenting. Our dissenting colleague expressed the view
that the trial record was inadequate to support defendant's
claim he was deprived of his constitutional right to trial by
jury, and that the appropriate remedy was affirmance without
prejudice to defendant's right to seek further review in a
proceeding for post-conviction relief (PCR). Id. at 245-46
(Lisa, J.A.D., retired and temporarily assigned on recall,
dissenting). The Supreme Court reversed on the basis of the
dissent, reinstating defendant's conviction and allowing him to
pursue his jury-waiver argument in a PCR proceeding. State v.
Blann, 217 N.J. 517, 518 (2014).
Defendant now appeals from the denial of his PCR petition
alleging ineffective assistance of trial and appellate counsel,
raising the following issues:
A-3403-14T1 3
POINT I
THE TRIAL COURT ERRED BY DENYING MR. BLANN AN EVIDENTIARY HEARING BECAUSE MR. BLANN ESTABLISHED A PRIMA FACIE CASE THAT DEFENSE COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO INVESTIGATE MR. BLANN'S DEFENSE; PRESENT DEFENSE WITNESS []; PROPERLY ADVISE MR. BLANN OF THE EVIDENCE AGAINST HIM AT THE PLEA BARGAINING STATE; PROPERLY OBJECT TO INADMISSIBLE HEARSAY TESTIMONY; AND PROPERLY ADVISE MR. BLANN OF HIS RIGHT TO A JURY TRIAL.
POINT II
MR. BLANN WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO COUNSEL'S FAILURE TO RAISE THE ISSUE THAT THE TRIAL COURT ERRED BY ALLOWING THE HEARSAY TESTIMONY OF OFFICER LOSASSO AS TO WHAT THE VICTIM TOLD HIM OCCURRED. THIS DEPRIVED MR. BLANN OF HIS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES.
Because we conclude that defendant presented a prima facie
case of ineffective assistance of counsel on two of the issues
he raised, warranting an evidentiary hearing, we affirm in part,
reverse in part, and remand for such a hearing. State v.
Preciose, 129 N.J. 451, 462-64 (1992).
The facts are set out at length in our opinion on
defendant's direct appeal and need not be repeated here. See
Blann, supra, 429 N.J. Super. at 224-25. Suffice it to say that
Blann approached a man in a car asking him for money. The man
claimed Blann appeared to have a gun and threatened to shoot him
with it if the man did not give him some money. Blann contended
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he did not have a gun, never made out as if he did and did not
threaten the man. Blann admitted he asked the man for money and
cursed at him when he refused. He claimed, however, he was
doing nothing more than engaging in some aggressive panhandling.
The sole witness to the encounter between the two men told
a defense investigator that he knew Blann to be a "panhandler."
He claimed to have seen Blann talking loudly to the man in the
car but did not hear Blann threaten him or gesture as if he had
a weapon.
Defendant called the witness in his case, eliciting only
the information that Blann regularly panhandled in the area and
was in the area at the time the victim claimed Blann accosted
him. Defense counsel did not attempt to elicit the information
the witness provided the investigator about not seeing Blann
threaten the victim or gesture as if he had a gun. On cross
examination by the prosecutor, the witness admitted seeing the
man in the car, but denied seeing Blann talking or interacting
with him in any fashion.
After hearing argument on the PCR petition, the judge, who
had also presided over the bench trial, found defendant had
failed to make out a prima facie case of ineffective assistance.
The judge noted that at the time defendant first expressed his
intention to waive a jury, he had already rejected the State's
A-3403-14T1 5
offer of a three-year NERA term. The judge surmised that when
defendant rejected the plea, defense counsel understood that,
because defendant was extended-term eligible, a defense that
only avoided defendant's conviction for first-degree robbery
would not reduce his exposure to a lengthy prison term.
The only real hope of limiting defendant's exposure would
be if defendant were convicted of violating an Atlantic City
ordinance prohibiting "Aggressive Begging," instead of robbery.
The judge found because "no jury was going to hear about
panhandling" or be instructed to consider the ordinance
violation as a lesser-included offense,1 the case had to be tried
to the bench in order to preserve that option for defendant.
The judge deemed defense counsel's strategy "brilliant."
It also explained why defense counsel was content to elicit from
the witness only that defendant was a panhandler who regularly
worked the area, and did not try to elicit the information the
witness earlier provided to the investigator about Blann not
threatening the victim or gesturing as if he had a gun,
1 See N.J.S.A. 2C:1-8d, e; State v. N.A., 355 N.J. Super. 143, 152 (App. Div. 2002) (holding the trial court is not obligated to charge a fourth-degree violation of N.J.S.A. 9:6-3 when the State has elected to prosecute a defendant under the more stringent parallel terms of N.J.S.A. 2C:24-4a), certif. denied, 175 N.J. 434 (2003). See also cf. State v. Muniz, 118 N.J. 319, 332-34 (1990) (holding a jury should not be instructed to consider a lesser offense which is a motor vehicle violation as such offenses are to be decided by the judge and not the jury).
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particularly after the witness testified he had not witnessed
the two interact at all. The judge stated he was "satisfied"
defense counsel, a very experienced certified criminal trial
lawyer, discussed the strategy with defendant and reviewed with
him the pros and cons of waiving a jury before embarking on that
course.
To succeed on a claim of ineffective assistance, defendant
must establish, first, that "counsel's representation fell below
an objective standard of reasonableness" and, second, that
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Strickland v. Washington, 466 U.S. 668, 687
88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698
(1984). A defendant must do more than demonstrate that an
alleged error might have "had some conceivable effect on the
outcome of the trial," instead, he must prove that the error is
so serious as to undermine the court's confidence in the
verdict. State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.)
(citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied,
169 N.J. 609 (2001).
Measured by that standard, we agree that defendant has not
established that he received ineffective assistance as a result
of his trial counsel's failure to investigate defenses, advise
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him of the evidence against him at the plea bargaining stage or
properly object to the inadmissible hearsay testimony of the
police officers regarding the victim's statements to them.
Defendant's trial counsel had obviously investigated the facts
of Blann's encounter with the man in the car, sending out an
investigator to interview the only witness and reviewing that
witness's subsequent sworn statement to the prosecutor's office.
Defense counsel's cross-examination of the victim, and the
police officers to whom the victim went for help, amply
demonstrated his knowledge of those facts. Defendant's claims
of inadequate investigation are without support in the record.
See State v. Arthur, 184 N.J. 307, 325 (2005).
The record similarly does not support defendant's charge
that counsel failed to object to inadmissible hearsay testimony
by the police officers. The transcript reveals defense counsel
objected repeatedly to the police officers testifying to what
the victim told them. The record also shows that the judge,
although initially sustaining those objections, ultimately
allowed the testimony for the limited purpose of showing what
the police did in response to the victim's report and why they
did it.
Given the substantial deference due a trial court's
evidentiary rulings, see State v. Morton, 155 N.J. 383, 453
A-3403-14T1 8
(1998), we cannot find appellate counsel was ineffective for
failing to raise the issue on appeal. See State v. Taimanglo,
403 N.J. Super. 112, 124 (App. Div. 2008) ("Suffice it to say,
as there is no basis for reversing the conviction on the grounds
asserted, there is no basis for finding that defendant was
denied effective assistance of counsel."), certif. denied, 197
N.J. 477 (2009).
Defendant's argument that he would have accepted the
State's offer and pleaded guilty to second-degree robbery had he
known his counsel did not intend to elicit testimony from the
witness about defendant not threatening the victim or gesturing
as if he had a gun, is barred by State v. Taccetta, 200 N.J.
183, 185-86 (2009) (holding "a PCR court, engaging in a
hindsight review, cannot hold that a plea would have been
acceptable had a defendant lied under oath" because a defendant
may not plead guilty to an offense while maintaining his
innocence).
Our only issue with the PCR court's findings has to do with
the jury-trial waiver and its place in defense counsel's trial
strategy. In reversing our decision on direct appeal, the
Supreme Court adopted Judge Lisa's view that the trial record
did not establish defendant's contention he lacked sufficient
understanding of his right to a trial by jury to effectively
A-3403-14T1 9
waive it. See Blann, supra, 429 N.J. Super. at 245, rev'd on
dissent, 217 N.J. at 518. Because the facts necessary to
support defendant's assertion lay outside the trial record, both
Judge Lisa and the Supreme Court deemed a PCR proceeding the
appropriate forum for consideration of defendant's jury-waiver
claim. Ibid.
In support of his petition, defendant submitted a detailed
certification claiming his trial counsel never advised him that:
(1) a jury is composed of twelve members of the community; (2)
he could participate in the selection of jurors; (3) all twelve
jurors must vote unanimously to convict in order for the State
to secure a conviction; and (4) if he waived a jury trial, the
judge alone would decide his guilt or innocence. Defendant also
certified defense counsel never discussed with him the
advantages and disadvantages of a jury trial.
Trial counsel submitted a certification claiming he
discussed defendant's right to a jury trial with him on several
occasions prior to the start of trial, and on each occasion "Mr.
Blann was adamant that he did not want a jury trial." Counsel
claimed he advised Blann that he did not generally recommend
that a defendant waive his right to a jury trial. He stated he
explained that a guilty verdict had to be unanimous and that if
even one juror had a reasonable doubt, the judge would have to
A-3403-14T1 10
declare a mistrial. Counsel further certified that he explained
in accord with his standard practice
that if there was a mistrial due to a hung jury, the Prosecutor would have the option of seeking another trial, or offering a better plea agreement, or even in rare circumstances dismissing a case. I contrasted that with a bench trial, in which there is no possibility of a hung jury, as only one person — the judge — decides between a verdict of guilty vs. not guilty. Mr. Blann continued to insist on a bench trial.
The Supreme Court has held on numerous occasions that when
a PCR petition "involves material issues of disputed facts that
cannot be resolved by reference to the trial record, an
evidentiary hearing must be held." State v. Porter, 216 N.J.
343, 347 (2013); see also State v. Jones, 219 N.J. 298, 312
(2014). The conflicting certifications of defendant and his
counsel in this case as to whether counsel provided defendant
with the information necessary to make an informed decision to
waive a jury presented a material issue of disputed fact
requiring resolution at an evidentiary hearing. The judge was
not free to resolve the dispute based on the conflicting
affidavits, see State v. Pyatt, 316 N.J. Super. 46, 50-51 (App.
Div. 1998), certif. denied, 158 N.J. 72 (1999), notwithstanding
that he was the judge who presided over the bench trial at which
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defendant was convicted. See State v. Russo, 333 N.J. Super.
119, 140 (App. Div. 2000).
Although defense counsel's decisions as to trial strategy
are "virtually unchallengeable" if made following reasonable
investigation, State v. Savage, 120 N.J. 594, 617 (1990)
(quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at
2065-66, 80 L. Ed. 2d at 695), and defendant has provided us no
basis upon which to question counsel's investigation, we
nevertheless likewise remand the issue of counsel's failure to
elicit from the witness at trial the information he earlier
provided to the investigator about Blann not threatening the
victim or gesturing as if he had a gun for an evidentiary
hearing.
The trial judge found counsel's handling of the witness was
not ineffective based on counsel's strategy to have the judge
consider the lesser-included ordinance violation, which could
only be accomplished at a bench trial. Although that certainly
may have been true, counsel did not address it in his
certification, and there is nothing else in the record from
which we could conclude that this was counsel's chosen strategy.
Accordingly, because counsel's approach to the witness appeared
to the trial judge very bound up with counsel's strategic choice
A-3403-14T1 12
to advise defendant to waive a jury, we remand this issue for an
evidentiary hearing as well.
Finally, we do not suggest by our discussion that defendant
has proved he was prejudiced by the representation he received.
Defendant's counsel may well have been pursuing a consciously
chosen strategy that could have resulted in defendant being
convicted of only an ordinance violation of aggressive begging
on the facts presented at trial. Defendant has only established
the right to explore at an evidentiary hearing whether that was
indeed the case and to have a court consider the merits of his
claims that he lacked a sufficient understanding of his right to
trial by jury to effectively waive it and that counsel's failure
to elicit the testimony from the witness constituted ineffective
assistance of counsel.
We reject defendant's remaining arguments as without
sufficient merit to warrant discussion in a written opinion.

Outcome: Affirmed in part, reversed in part, and remanded for
further proceedings not inconsistent with this opinion. We do
not retain jurisdiction.

Plaintiff's Experts:

Defendant's Experts:

Comments: