January 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE GILLISPIE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-08-0732.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2006
Before Judges Parker and Yannotti.
Defendant Dwayne Gillispie was charged under a Passaic County indictment with first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (Counts 1 and 2); second degree sexual assault, N.J.S.A. 2C:14-2b (Count 3); third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts 4 and 5); fourth degree criminal sexual conduct, N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(1) (Count 6); first degree robbery, N.J.S.A. 2C:15-1 (Count 7); third degree terroristic threats, N.J.S.A. 2C:12-3a (Count 8); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count 9).
Defendant was found guilty on Counts 2, 7 and 8 and not guilty on Counts 1 and 9. The remaining counts were dismissed. The trial judge granted the State's motion for imposition of an extended term and sentenced defendant on Count 2 to a fifty-year custodial sentence, with an eighteen-year period of parole ineligibility. Count 7 was merged into Count 2 and on Count 8 the judge imposed a concurrent five-year term, with a two-year period of parole disqualification. Defendant's convictions and sentences were affirmed on direct appeal, State v. Gillispie, A-5060-98T4, (decided August 11, 2000), and the Supreme Court denied certification. 167 N.J. 86 (2001). Defendant filed a petition for post conviction relief (PCR) in October 2004, which was denied in an order entered on March 4, 2005. This appeal followed.
In this appeal, defendant argues:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL In a supplemental brief submitted by defendant pro se, he argues:
DEFENDANT DID NOT RECEIVE THE REPRESENTATION GUARANTEED BY POST CONVICTION RULE REQUIRING ASSIGNED COUNSEL TO ADVOCATE A DEFENDANTS CLAIMS. POST-CONVICTION COUNSEL FAILED TO ADEQUATELY ADDRESS THE ISSUE THAT DEFENDANTS WAIVER OF MIRANDA RIGHTS WAS NOIT [SIC] KNOWING AND INTELLIGENT, WHEN THE DEFENDANT WAS NOT INFORMED AT THE TIME HE WAS ARRESTED AND TAKEN IN FOR QUESTIONING THAT NO WARRANT OR COMPLAINT HAD ISSUED BASED ON THE VICTIM STATEMENT
POINT THREE [SIC]
DEFENDANT WAS DENIED THE ASSISTANCE REQUIRED BY POST-CONVICTION COUNSEL AS PER. RULE 3:22-6. COUNSEL FAILED TO URGE THE INEFFECTIVENESS OF COUNSEL AT THE PRETRIAL STAGE AS PRETRIAL COUNSEL FAILED TO URGE THE DEFENDANT'S PRO SE PRETRIAL MOTION TO DISMISS COMPLAINT/WARRANT NO. W-1997-006438-1608. IN VIOLATION OF U.S.C.A. CONST. AMENDS. 4, 6 & 14: N.J.S.A. CONST. ART. 1 PARS. 7, 10 & 1 (1947) AND RULES GOVERNING THE COURTS OF NEW JERSEY, RULES 7:3-1 (b) and 3:4-1
POINT TWO [SIC]
DEFENDANT SHOULD BE GRANTED A NEW POST-CONVICTION HEARING AS POST CONVICTION COUNSEL FAILED TO URGE TRIAL JUDGE'S "PLAIN ERROR" IN FAILING TO ALLOW DEFENSE COUNSEL TO ADDRESS DEFENDANTS PRETRIAL MOTION TO DISMISS INDICTMENT NO. 97-08-0732 ON THE GROUNDS OF A VIOLATION OF DUE PROCESS. SUCH ERROR BY TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL. IN VIOLATION OF U.S.C.A. CONST. AMEND. 6 & 14, N.J.S.A. CONST. ART. 1 PARS. 1 AND 10: NEW JERSEY COURT RULE 3:22-6
DEFENDANT WAS DENIED THE ASSISTANCE REQUIRED BY POST CONVICTION RULE 3:22-6 WHEN COUNSEL FAILED TO URGE THAT THE WARRANT ON THE FACE OF CDR-2 NO. W-1997-006438-1608 WAS ISSUED FALSE AND FRAUDULENT AND WITH RECKLESS DISREGARD FOR THE TRUTH. IN VIOLATION OF U.S.C.A. CONST. AMENDS. 4 AND 14: N.J.S.A. CONST. ART. 1 PARS 1 AND 7 (1947). CODE OF CONDUCT FOR JUDICIAL EMPLOYEES CANON 1(A) AND CANON 1(D)
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficiency affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987). This requires a showing that counsel's errors were so egregious as to deprive defendant of a fair trial. Ibid.
In determining whether counsel was deficient, the PCR judge must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. To rebut that presumption, defendant must prove that he was prejudiced by counsel's deficient performance by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 697-98. "A reasonable probability" was defined by the Court as that which is "sufficient to undermine confidence in the outcome." Ibid.
Ordinarily, a trial court should grant an evidentiary hearing on a PCR petition "if a defendant has presented a prima facie" case of ineffective assistance of counsel. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 319 L.Ed. 2d 88 (1997) (citing State v. Preciose, 129 N.J. 451, 462 (1992)). In order "[t]o establish . . . a prima facie" claim of ineffective assistance of counsel, "defendant must demonstrate a reasonable likelihood that his . . . claim will ultimately succeed on the merits." Id. at 158. Defendant "must do more than make bald assertions that he was denied the effective assistance of counsel; he [or she] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Only then can a judge determine whether a prima facie case has been made.
Our careful review of the record here convinces us that defendant failed to present a prima facie case of ineffective assistance of counsel to warrant a remand for an evidentiary hearing. Moreover, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
While defendant has presented lengthy arguments detailing the alleged errors of trial and PCR counsel, he does not proffer any evidence to support the second prong of Strickland, i.e., that the outcome of the proceedings would have been different but for counsels' deficient performance. He claims, for example, that he was not properly advised of the plea offers. The record, however, reflects that defendant was properly advised but rejected those offers because he maintained his innocence. He claims that the State improperly withheld exculpatory material from the Grand Jury concerning the victim's medical examination. The Grand Jury, however, was provided with the relevant information concerning the victim's injuries. The record further establishes that defense counsel made reasonable efforts to locate Reverend Williams but that Williams' testimony was unlikely to have changed the outcome, particularly in view of the overwhelming evidence of defendant's guilt.
The record further reflects that defendant was fully advised by the judge regarding the motion for a mistrial which related to his cousin's damaging testimony. After an extended discussion with the judge on the record, in which the judge explained the consequences of a mistrial, defendant made a knowing and voluntary strategic decision to withdraw the motion.
Moreover, questioning by defense counsel of Kaye Sofer Conrad was part of the trial strategy intended to establish that the victim's allegations of rape were false. The judge properly determined that counsel's actions respecting defendant's statement to the police were in furtherance of trial strategy. Finally, trial counsel acted appropriately when he asked for charges on the lesser included offense because there was a rational basis for those instructions.
Accordingly, we affirm the denial of defendant's PCR petition essentially for the reasons set forth by Judge Ronald Marmo on the record on March 3, 2005.
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