On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 98-02-0108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Cuff and Lihotz.
Defendant Jason S. Wilkins appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of trial and appellate counsel, as well as other State misconduct and that his sentence was illegal. On appeal, he also argues PCR counsel was ineffective. We find no error or abuse of discretion in the review and denial of the PCR petition by Judge Thomas S. Smith, Jr. Further, we reject the contention that PCR counsel was ineffective. Accordingly, we affirm.
Defendant and two others engaged in a home invasion-armed robbery at the White family's residence, during which one resident was pistol-whipped and shot in the leg. Following two mistrials, the third jury found defendant guilty on all thirteen counts charged in the indictment. The trial judge imposed an aggregate sentence of twenty years imprisonment with an eighty-five-percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction on appeal.
After considering the arguments presented in defendant's PCR application, Judge Smith issued a six-page written decision, in which he found no deficient conduct by appellate counsel, a failure to meet both prongs of the Strickland/Fritz*fn1 test as to trial counsel, and that the other claims raised were barred by Rule 3:22-4 and Rule 3:22-5. Judge Smith denied the PCR petition on June 15, 2006.
In one general point heading presented to this court, defendant asserts the PCR judge erred in denying defendant's petition. Within the body of this general argument, defendant raises numerous instances whereby he asserts trial and appellate counsel were ineffective.
The arguments are essentially those presented to the Law Division. First, defendant maintains appellate counsel did not argue that the State failed to establish all elements of the offenses charged, inasmuch as the State did not prove defendant "possessed the specific handgun rather than just general testimony that would have applied to a general handgun." Second, trial counsel failed to object to the out-of-court identification of defendant by Michael White, a brother of one of the victims, as conveyed in the testimony of Georgette and Pauline White. In this regard, PCR counsel also did not advance defendant's position, but instead made a statement that "was tantamount to conceding guilt." Third, trial counsel was ineffective for failing to produce witnesses Maiesha Harris and Frederick Warthen. Then, PCR counsel was diffident in his presentation of the issue and "conceded the State's case." Fourth, trial counsel did not attack the credibility of Pauline White when she uttered an inconsistent statement between the second and third trial. Fifth, the State did not release to defendant the written statement of Michael White, who identified a person other than defendant as the one who shot a victim. Sixth, when sentencing defendant, the trial judge used aggravating factors to increase the sentence above the former presumptive term warranting resentencing. Seventh, the aggregate of all errors warrant reversal of the conviction.
To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test. First, he must demonstrate that his attorney's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (internal citation omitted).]
We have reviewed defendant's arguments and considered the submissions of both parties in light of the record and applicable law and we find the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In denying defendant's PCR application, Judge Smith thoroughly reviewed each claim presented. The record fully supports these findings and conclusions. Nothing contained in the present submission modifies Judge Smith's conclusions expressed in his comprehensive written opinion dated June 15, 2006.
We also reject defendant's newly advanced arguments that PCR counsel was ineffective. PCR counsel fully and clearly articulated the issues for consideration. Following our review, we are satisfied the defendant ...