STATE OF NEW JERSEY VS. LLEWELYN JAMES (02-08-2875, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0236-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LLEWELYN JAMES, a/k/a
LOUIS JAMES and LOU JAMES,

Defendant-Appellant.
______________________________

Submitted October 18, 2018 – Decided November 1, 2018

Before Judges Simonelli and O'Connor.

On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 02-08-2875.

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 (Kevin J. Hein, Assistant
Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Llewelyn James appeals from the July 28, 2017 Law Division

order, which denied his petition for post-conviction relief (PCR) without an

evidentiary hearing. On appeal, defendant raises the following contentions:

POINT I - THIS MATTER MUST BE
REMANDED FOR AN EVIDENTIARY
HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S
INEFFECTIVENESS FOR FAILING
TO INVESTIGATE AND TO PROVIDE
DISCOVERY TO DEFENDANT; IN
THE ALTERNATIVE, THIS MATTER
MUST BE REMANDED FOR THE PCR
COURT TO ADDRESS THESE
CLAIMS. (Partially Raised Below).

POINT II - THIS MATTER MUST BE
REMANDED FOR A NEW PCR
HEARING FOR COUNSEL TO
ADVANCE DEFENDANT'S CLAIMS
OF TRIAL COUNSELS'
INEFFECTIVENESS FOR FAILING
TO INVESTIGATE AND PROVIDE
DISCOVERY TO HIM. (Not Raised
Below).

Defendant raises the following contention in his pro se supplemental brief:

Point I:

RESPONDENT'S BRIEF SUPPORTS APPELLANT'S
CLAIM THAT A FULL EVIDENTIARY HEARING
SHOULD HAVE BEEN GRANTED.

A-0236-17T4
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We reject these contentions and affirm.

Following a jury trial, defendant was convicted on six counts of first-

degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); four counts of first-degree

felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree attempted murder, N.J.S.A.

2C:11-3(a); two counts of third-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b); and two counts of second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a). On January 25, 2008, the trial

court sentenced defendant to an aggregate 315-year term of imprisonment with

an eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction and sentence. We affirmed. State v.

James, No. A-4153-08 (App. Div. Sept. 7, 2012) (slip op. at 33). We incorporate

by reference the facts leading to defendant's conviction, as described in our

opinion. Id. at 1-10. We note that defendant confessed to the murders in a

consensual intercept conversation with his cousin and during a custodial

interrogation, and there was other evidence inculpating him in those crimes. Id.

at 5-10. The Supreme Court denied defendant's petition for certification. State

v. James, 213 N.J. 389 (2013).

A-0236-17T4
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 On April 29, 2013, defendant filed a PCR petition pro se, raising six

grounds for relief, including trial counsels' failure to call defendant's mother,

Fern Ferguson, and cousin, Alvin Bethune, as witnesses at trial.

Defendant's assigned PCR counsel filed a brief addressing the grounds for

relief defendant asserted in his pro se petition, and adding that the petition was

not time-barred under Rule 3:22-12(a)(1) and trial counsel failed to provide the

State's discovery to defendant and secure the services of an investigator.

Defendant later filed a certification, stating that PCR counsel was ineffective for

failing to submit certifications to contest the time bar.

On May 12, 2014, the PCR court denied the petition without an

evidentiary hearing, finding the petition was time-barred, procedurally barred,

and substantively without merit. Defendant appealed.

On April 13, 2015, defendant's PCR appellate counsel filed a motion to

supplement the appellate record with defendant's November 24, 2014 affidavit,

wherein defendant claimed that PCR counsel was ineffective for failing to

submit affidavits from Ferguson and Bethune to the PCR court, and failing to

address trial counsels' failure to call Ferguson and Bethune as witnesses at trial.

PCR appellate counsel filed a brief, arguing the petition was not time

barred; defendant established a prima facie case of ineffective assistance of trial

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counsel; and PCR counsel failed to advance a claim defendant raised in his

petition. Defendant filed a supplemental brief, adding that direct appellate

counsel submitted a certification, stating she did not advise defendant of the

five-year time bar for a PCR petition. Defendant also argued that PCR counsel

failed to obtain an affidavit from direct appellate counsel to contest the time bar,

interview and obtain affidavits or certifications from Ferguson and Bethune, and

review the discovery with defendant.1

We remanded for the appointment of new PCR counsel and a new hearing.

State v. James, No. A-5248-13 (App. Div. Dec. 13, 2016) (slip op. at 14).2 We

concluded as follows:

based on [State v.] Hicks[, 411 N.J. Super. 370 (App.
Div. 2010)] and Rule 3:22-6(d), a remand is necessary
to enable the PCR court to consider the grounds for
relief defendant articulated in [PCR appellate]
counsel's merits brief and defendant's supplement brief,
as well as defendant's November 24, 2014 affidavit and
direct appellate counsel's certification.

Defendant contends he expressly asked PCR
counsel to obtain affidavits from Ferguson and Bethune
and submit them to the court, but counsel's brief before
the PCR court was silent on this issue. Even if PCR
counsel believed trial counsel had not been ineffective

1
Defendant raised other arguments that are not pertinent to this appeal.
2
We affirmed the PCR court's denial of PCR on defendant's sentencing issues.
Ibid.
A-0236-17T4
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for not calling these two witnesses at trial, he was not
free to ignore this claim. See R. 3:22-6(d). He should
have certified "no further argument or elaboration" was
necessary or, if he did not agree with defendant's claim,
should have at least referenced such claim in his brief.
Hicks, 411 N.J. Super. at 377.

In addition, there is no indication PCR counsel
reviewed the State's discovery. Counsel had a duty to
investigate the merits of defendant's claim trial
counsels' failure to share this discovery with him or to
conduct an investigation fatally altered the outcome of
the trial.

We recognize defendant has not come forward
with evidence indicating how the outcome of the trial
would have been different had the subject witnesses
been called, the subject discovery shared with him, and
an investigation conducted. However, it is unclear
whether defendant has seen the discovery or has had
contact with the two witnesses.

On the question whether the petition was timely
filed, defendant contends he alerted PCR counsel of the
certification direct appellate counsel was willing to
execute. That certification and the impact of Rule 3:22-
3 must be addressed by PCR counsel in accordance with
Hicks and Rule 3:22-6(d).

Finally, we express no opinion on the merits of
defendant's application against either trial or PCR
counsel. None of the comments or observations made
in this opinion are to be interpreted as an indication of
how the PCR court should decide this matter on
remand.

[Id. at 13-14.]

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 On remand, the PCR court appointed new PCR counsel and afforded

counsel time to obtain discovery, provide it to defendant, and prepare for the

hearing. Second PCR counsel obtained the discovery and provided it to

defendant; defendant reviewed the discovery; and counsel spoke with defendant.

Second PCR counsel did not obtain affidavits or certifications from Ferguson or

Bethune, deciding instead to rely on their sworn testimony at defendant's

Miranda3 hearing. Second PCR counsel noted that defendant had asked trial

counsel "to go out and get these witnesses for trial, thinking that he needed to

get them interviewed, but they had already been interviewed and [gave]

statements."

Regarding the discovery, second PCR counsel argued that had trial

counsel provided it to defendant prior to trial, defendant could have provided

trial counsel with methods to challenge the testimony of a State witness who

testified that defendant told him he had had killed six people and, if released,

would kill his cousin for snitching on him for money.

The PCR court found defendant demonstrated excusable neglect to relax

the five-year time bar, but concluded the petition was substantively without

merit to warrant an evidentiary hearing. The PCR court determined that second

3
Miranda v. Arizona, 384 U.S. 436 (1966).
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PCR counsel obtained the discovery, provided it to defendant, spoke to

defendant, and defendant failed to show how the outcome of the trial or the first

PCR petition would have been different had trial counsel reviewed the discovery

with him before trial.

The PCR court found that even if trial counsel had called Ferguson or

Bethune to testify at trial, defendant failed to show how the outcome would have

been different. The PCR court also found that defendant did not indicate the

facts to which Ferguson and Bethune would have testified. As to defendant's

remaining arguments, the court found defendant failed to demonstrate a prima

facie case of ineffective assistance of trial or first PCR counsel.

On appeal, defendant argues this matter must be remanded because the

PCR court and second PCR counsel failed to address his claims as to trial

counsels' failure to call Ferguson and Bethune to testify at trial and review

discovery with him. We disagree.

We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.

387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)).

However, where no evidentiary hearing was conducted, we "may review the

factual inferences the court has drawn from the documentary record de novo."

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State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). We also review de

novo the trial court's conclusions of law. Ibid.

We have considered defendant's argument in light of the record and

applicable legal principles and conclude it is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). The PCR court and second

PCR counsel addressed defendant's claims as to trial counsel's failure to call

Ferguson and Bethune to testify at trial. The PCR court concluded that

defendant failed to show the outcome would have been different had they

testified. While the PCR court did not directly address trial counsels' failure to

review discovery with defendant, the court determined that defendant had

reviewed the discovery with second PCR counsel and failed to show how the

outcome would have been different.

Affirmed.

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