June 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANCISCO ZION RAWLINGS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 99-06-700-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2007
Before Judges Wefing and C.S. Fisher.
A jury convicted defendant of first-degree robbery, and the trial court sentenced him to serve twenty years in jail. The trial court directed that defendant had to serve eighty-five percent of that sentence before he would become eligible to be considered for parole. N.J.S.A. 2C:43-7.2. Defendant appealed.
We affirmed his conviction and sentence in an unpublished opinion, State v. Rawlings, No. A-5124-01 (App. Div. September 30, 2003). The Supreme Court denied defendant's petition for certification. State v. Rawlings, 178 N.J. 375 (2003). Thereafter, defendant filed a petition seeking post-conviction relief. Defendant appeals from the trial court order denying his petition. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The victim of the robbery was Herbert Kravitz, who operated K's Check Cashing in North Brunswick. Kravitz identified defendant. Another witness testified that a short time after the robbery had occurred, defendant purchased a used Jaguar automobile from him and paid cash. According to this witness, defendant had a large roll of bills on his person. Another witness, who was the mother of one of defendant's acquaintances, testified that defendant had told her of his plans to commit this robbery and that she had tried to dissuade him. She also testified that defendant later told her he had committed the robbery. After defendant was arrested and advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), defendant made a statement that was admissible at his trial.
Defendant makes one contention on appeal.
POINT I THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). In State v. Fritz, 105 N.J. 42 (1987), our Supreme Court adopted the Strickland standards.
[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" [Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).]
Thus to establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. Second, defendant must show that this deficient performance materially affected the outcome of his trial. In determining whether defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991).
Not every defendant who alleges that trial counsel was ineffective is entitled to an evidentiary hearing on the issue. Rather, "the defendant must allege specific facts demonstrating the deficient performance." State v. Rountree, 388 N.J. Super. 190, 206 (2006). We explained this principle in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), in the following manner:
[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.
We have carefully scrutinized the petition submitted by defendant and the briefs prepared and filed by his counsel amplifying defendant's arguments. To the extent they contain arguments which either were or should have been presented on defendant's direct appeal, they are not the proper subject of post-conviction relief. State v. Merola, 365 N.J. Super. 203, 216 (Law Div. 2002), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); R. 3:22-3; R. 3:22-4. The remainder of defendant's assertions are not corroborated, either with documentary material or affidavits or certifications of the witnesses defendant alleges would provide exculpatory evidence.
We concur with the trial court that defendant made an insufficient showing to compel the trial court to proceed to conduct a plenary hearing with regard to defendant's allegations.
The order under review is affirmed.
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