NOT FOR PUBLICATION WITHOUT THE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-4600-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TELIK K. PITTMAN a/k/a CARL T.
PITTMAN, TELIK C. PITTMAN, KARL
T. PITTMAN, and KARL PITTMAN,
Defendant-Appellant.
__________________________________________
Submitted September 13, 2018 – Decided September 21, 2018
Before Judges Fuentes and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 08-10-
1678.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Telik K. Pittman appeals from a May 4, 2017 order denying his
post-conviction relief (PCR) petition without an evidentiary hearing. We affirm
because the PCR court correctly determined defendant failed to establish a prima
facie claim of ineffective assistance of counsel and therefore was not entitled to
an evidentiary hearing.
I.
We described the facts underlying the criminal charges against defendant
and his co-defendant Travis Myers in our opinion on defendant's direct appeal,
State v. Telik K. Pittman, No. A-1141-12 (App. Div. July 29, 2015) (slip op. at
2-7), and briefly summarize the pertinent facts here. Defendant and Myers were
charged in an indictment with offenses arising from "the shooting of two victims
during a drug transaction." Id. at 2. More particularly, they were charged with
first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3); first-degree attempted murder N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3(a)(1); first-degree armed robbery, N.J.S.A. 2C:15-1; second-
degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a);
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-
degree possession of a controlled dangerous substance, cocaine, with intent to
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distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); third-degree
possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-
10(a)(1); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:11-3(a)(1) or (2); first-degree conspiracy to commit felony murder,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(3); and second-degree conspiracy to
commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.
Myers pleaded guilty to manslaughter and testified against defendant at
his trial. Pittman, slip op. at 2. Myers admitted shooting the victims, but
asserted he was ordered at gunpoint by defendant to do so. Id. at 6. Defendant
testified he was present with Myers, received cocaine from the murdered victim
just prior to the shooting and intended to sell the cocaine. Id. at 6-7. Defendant
denied he planned to rob the victim who supplied him with the cocaine, id. at 6,
and testified he was not armed, "did not know Myers had a gun and would use
it against the victims" and did not coerce Myers to shoot the victims, id. at 2.
Defendant was acquitted of all charges except two drug offenses he
"admitted in presenting his defense at the trial." Ibid. Defendant was convicted
of second-degree possession of cocaine with intent to distribute and third-degree
possession of cocaine. Ibid. The court subsequently merged defendant's
conviction for the third-degree offense with the second-degree offense.
A-4600-16T1
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At sentencing, the court noted that the jury "was not convinced of"
defendant's guilt on the charges related to the murder and assault of the victims,
and observed that "the circumstances of [the] drug deal . . . suggest a certain
level of depravity that concern[ed] the [c]ourt[,] particularly in light of the fact
that [the] individual from whom [defendant] had just bought drugs [had] been
shot, . . . [and d]efendant fled unconcerned about [the cocaine supplier's]
welfare." The court also stated that defendant did not aid the victims or summon
any help after they were shot, and "left the [cocaine supplier] there to die along
with his girlfriend . . . ."
The court found aggravating factor three, the risk defendant would
continue to violate the law, N.J.S.A. 2C:44-1(a)(3), based on defendant's
"extensive criminal history," and because defendant committed the crimes for
which he was being sentenced while he was a fugitive awaiting sentence on other
charges. The court also found aggravating factor six, the extent of defendant's
prior record and the seriousness of the offense for which he was being sentenced,
N.J.S.A. 2C:44-1(a)(6), based on defendant's prior criminal history and his
present conviction of a second-degree offense. Last, the court found aggravating
factor nine, the need to deter defendant and others from violating the law,
A-4600-16T1
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N.J.S.A. 2C:44-1(a)(9), based on "[d]efendant's significant criminal history and
the nature of the offense of this case."
The court did not find any mitigating factors, see N.J.S.A. 2C:44-1(b)(1)
to (13), and determined there was a preponderance of aggravating factors. The
court imposed an extended term seventeen-year sentence on the second-degree
possession with intent to distribute charge in accordance with N.J.S.A. 2C:43-
6(f), with an eight-and-a-half-year period of parole ineligibility.
We affirmed defendant's conviction and sentence on his direct appeal.
Pittman, slip op. at 17. We rejected defendant's claim his sentence was
unconstitutional because the court engaged in impermissible fact-finding by
relying on his prior convictions to support its imposition of the extended term
sentence under N.J.S.A. 2C:43-6(f). Id. at 12-16. We also rejected defendant's
challenge to the aggregate sentence and parole ineligibility period, finding "no
legal error or abuse of discretion in the sentence imposed . . . ." Id. at 17. The
Supreme Court denied defendant's petition for certification. State v. Pittman,
223 N.J. 556 (2015).
Defendant filed a pro se PCR petition, which did not detail any facts or
arguments explaining the basis for the requested relief. Following the
appointment of counsel, defendant filed an amended verified petition, which
A-4600-16T1
5
incorporated by reference arguments defendant asserted were set forth in a brief
submitted with his initial pro se petition.1 Defendant claimed the sentencing
court could not properly consider the circumstances surrounding the shootings
of the victims and his failure to render aid to the victims because he was not
convicted of any crimes based on those circumstances. He asserted that his trial
counsel was ineffective by failing to object to the sentencing court's reliance on
those circumstances, and his appellate counsel was ineffective by failing to raise
the issue on appeal. 2
The PCR court heard oral argument and denied defendant's petition
without an evidentiary hearing. The PCR court first determined that any claim
defendant's sentence is improper or excessive is barred by Rule 3:22-5 because
the claim was adjudicated on defendant's direct appeal, where it was determined
there was no legal error in the trial court's imposition of sentence.
1
Defendant's amended verified petition refers to a pro se brief submitted in
support of his initial petition. The brief is not included in the record on appeal.
2
Defendant also submitted a certification to the PCR court asserting that he
never had direct communications with his appellate counsel prior to disposition
of his direct appeal. The PCR court rejected defendant's claim his appellate
counsel was ineffective based on the purported failure to communicate, finding
defendant made no showing he suffered any prejudice as a result of the alleged
failure. We do not address the issue because defendant does not argue the PCR
court erred by rejecting the claim.
A-4600-16T1
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The PCR court also rejected defendant's claim his trial counsel and
appellate counsel were ineffective. The PCR court determined defendant failed
to demonstrate counsel were ineffective because although the sentencing court
referred to the circumstances surrounding the shootings and defendant's failure
to provide aid, its finding of the aggravating and mitigating factors supporting
the sentence were based solely on defendant's criminal record. Thus, the PCR
court determined defendant did not establish that either his trial or appellate
counsel were ineffective, or that there is a reasonable probability that but for
their alleged errors the result of either the sentencing proceeding or direct appeal
would have been different. The court entered an order denying the PCR petition
without an evidentiary hearing. This appeal followed.
Defendant presents the following argument for our consideration:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
AND APPELLATE COUNSELS' INEFFECTIVENESS
FOR NOT PURSUING THE COURT'S IMPOSING A
SENTENCE BASED ON THE BELIEF THAT THE
JURY RENDERED UNJUST VERDICTS IN
DEFENDANT'S FAVOR.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
A-4600-16T1
7
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies
to mixed questions of fact and law. Id. at 420. Where, as here, an evidentiary
hearing has not been held, it is within our authority "to conduct a de novo review
of both the factual findings and legal conclusions of the PCR court." Id. at 421.
We apply that standard here.
An evidentiary hearing on a PCR petition is required where a defendant
establishes a prima facie case for PCR under the standard established by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686
(1984), and the existing record is inadequate to resolve defendant's claim, State
v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)); see also State v.
Preciose, 129 N.J. 451, 462-63 (1992). Under Strickland, a defendant first must
show that his or her attorney's handling of the matter "fell below an objective
standard of reasonableness." Strickland, 466 U.S. at 688; see also State v. Fritz,
105 N.J. 42, 58 (1987). A defendant also must show there exists a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694; see also
Fritz, 105 N.J. at 60-61.
Here, defendant claims the PCR court erred because his trial and appellate
counsel were ineffective by failing to challenge the sentencing court's purported
A-4600-16T1
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reliance on the circumstances related to the shootings and defendant's failure to
provide aid to the victims after they were shot. Defendant's argument is belied
by the record.
In the first instance, appellate counsel's brief on the direct appeal included
an assertion that the sentencing court erred by considering the circumstances
related to the murder in its imposition of sentence. More particularly, appellate
counsel argued that "[i]t was improper for the [sentencing] court to consider the
circumstances surrounding the homicide because defendant was acquitted of all
related charges." As noted, we affirmed defendant's sentence and determined it
was not the result of any legal error. Pittman, slip op. at 17.
Defendant's argument is also founded on the false premise that the
sentencing court relied on the circumstances related to the shootings, and
defendant's failure to provide aid to the victims, as the bases for the sentence
imposed. The court's findings of aggravating and mitigating factors , however,
are untethered to those circumstances. The court instead relied solely on
defendant's criminal history in its finding of the aggravating and mitigating
factors supporting the sentence we determined contained no legal error. See
ibid.
A-4600-16T1
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Defendant therefore could not establish his counsel were ineffective by
failing to argue the sentencing court's reliance on the circumstances surrounding
the shootings or defendant's failure to provide aid to the victims was improper.
Any such argument would have been meritless because the sentencing court
simply did not rely on those circumstances in its imposition of sentence. An
attorney is not ineffective by failing to make a meritless legal argument. State
v. Worlock, 117 N.J. 596, 625 (1990). Defendant therefore failed to satisfy the
first prong of the Strickland standard.
Defendant also failed to demonstrate that but for his counsel's alleged
errors there is a reasonable probability the result of either his sentencing
proceeding or his direct appeal would have been different. See Strickland, 466
U.S. at 694. To satisfy his burden of establishing a reasonable probability the
results of the proceedings would have been different, defendant is required to
establish "a probability sufficient to undermine confidence in the outcome."
Ibid. Defendant did not, and could not, satisfy this burden because even if his
trial counsel objected to the court's statements concerning the shootings and his
failure to provide aid, and appellate counsel had failed to raise the issue on
appeal, the result of the proceedings would have been the same. Again, that is
because the sentencing court did not rely on the circumstances surrounding the
A-4600-16T1
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shooting or defendant's failure to provide aid to the victims in its imposition of
sentence.
We are convinced the PCR court correctly determined defendant failed to
sustain his burden under both prongs of the Strickland standard. A failure to
satisfy either prong of the Strickland standard requires the denial of a PCR
petition, Strickland, 466 U.S. at 700, without an evidentiary hearing, Porter, 216
N.J. at 355.
Affirmed.
A-4600-16T1
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STATE OF NEW JERSEY VS. TELIK K. PITTMAN (08-10-1678, MIDDLESEX COUNTY AND STATEWIDE)
Combined Opinion