January 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDDIE WARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 99-06-1003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Cuff and Lisa.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. The jury convicted defendant of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (count one); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count two); second-degree robbery, N.J.S.A. 2C:15-1a(1) (count three); second-degree robbery, N.J.S.A. 2C:15-1a(3) (count four); and third-degree criminal restraint, N.J.S.A. 2C:13-2a (count five). On June 2, 2000, Judge Isman imposed sentence. He merged count two with count one and count four with count three. He sentenced defendant on count one to twenty years imprisonment with an 85% parole disqualifier and five years parole supervision, pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), and community supervision for life. He imposed concurrent terms of ten years and five years imprisonment on counts three and five respectively. In an unreported decision, State v. Ward, No. A-6918-99T4 (App. Div. Dec. 13, 2001), we affirmed defendant's conviction. The Supreme Court denied defendant's petition for certification on March 6, 2002. State v. Ward, 171 N.J. 443 (2002).
On June 23, 2005, five years and twenty-one days after entry of the judgment of conviction, defendant filed his PCR petition. Defendant's PCR counsel filed a letter brief raising the following arguments:
The sentencing of defendant to an extended term was based on facts not found by a jury violating Defendant's Sixth Amendment Rights and State v. Natale.
Defendant was prejudiced when trial counsel failed to move to compel complete DNA testing which may have exonerated Defendant.
Defendant's PCR counsel also filed a supplemental brief raising the following additional arguments:
I. TRIAL COUNSEL WAS INEFFECTIVE ENTITLING DEFENDANT TO A NEW TRIAL OR, ALTERNATIVELY A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL HAS BEEN PRESENTED COMPELLING AN EVIDENTIARY HEARING ON THIS ISSUE.
II. EXTENSIVE TRIAL ERRORS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
III. DEFENDANT'S SENTENCE WAS EXCESSIVE.
IV. THE PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
The PCR petition was heard on September 8, 2006 by Judge Isman, who also presided over defendant's trial. Although the petition was filed more than five years after the judgment of conviction and some of the issues raised in the petition were or could have been raised on direct appeal, the judge declined to deem the petition time-barred, see Rule 3:22-12, or procedurally barred, see Rules 3:22-4 and -5, and he addressed and decided each argument on the merits. After oral argument, the judge denied the petition.
The judge found no basis for relief regarding defendant's sentence.*fn1 He reviewed his findings regarding aggravating and mitigating factors, and concluded that he appropriately found the existence of three aggravating factors and no mitigating factors, thus supporting the upward adjustment from the then-presumptive fifteen years for a first-degree crime to the twenty-year term he imposed. He further found that subsequent to the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005), the result would have been the same with an upward adjustment from the mid-range for first-degree crimes. Thus, the judge did not find the sentence to be excessive. Further, he found that defendant was not entitled to resentencing in light of the Natale holding, because defendant's direct appeal was concluded in 2002, and was therefore not in the pipeline when Natale was decided in 2005.
Defendant alleged an assortment of errors by the trial court and deficiencies by his trial counsel, which he claimed deprived him of a fair trial. He pointed to the following matters presented at trial, some of which were objected to by his counsel and some for which no objection was made: references by the prosecutor during his opening statement to the death of the victim's father on the date of her assault, to a non-existent gun, and to the "three-part victimization" of the victim; photographs of the victim and crime scene; evidence of defendant's resistance to being strip searched; and the prosecutor's summation comment that defendant acted "cowardly." Defendant also asserted that the trial judge should have adjourned the trial to allow time for additional investigation as a result of a discovery violation by the prosecutor. Defendant also alleged that the judge did not properly address an issue with a juror that arose during trial. Finally, defendant criticized his trial attorney for failing to compel DNA testing.
Judge Isman rejected each argument. He found no deficiency by trial counsel on any of the points raised. And, he found that even if trial counsel would have acted in the manner now suggested in the PCR proceeding, the outcome of the trial would not have been different. Accordingly, the judge found that neither prong of the Strickland/Fritz*fn2 test was satisfied. The judge also found that there was no error in any of his evidentiary rulings challenged on PCR. He also found no error in the manner in which he dealt with the juror issue. And, he rejected the DNA argument, because identification was not a significant issue in the case and, indeed, the thrust of the defense was that the sexual conduct between defendant and the victim was consensual.
Accordingly, the judge found no basis to support the PCR petition. He also found no basis or need for conducting an evidentiary hearing.
On appeal, defendant argues:
THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
THE MATTER MUST BE REMANDED FOR REARGUMENT BASED ON INEFFECTIVE ASSISTANCE OF PCR COUNSEL.
We reject these arguments and affirm.
Defendant's appellate arguments essentially mirror those he presented to the trial court in the PCR proceeding. Indeed, most of defendant's appeal arguments merely reference his trial court arguments.
For a defendant to be entitled to relief because of a claim of ineffective assistance of trial counsel, he must satisfy the Strickland/Fritz test by establishing that counsel's performance was deficient and that a reasonable probability exists that but for counsel's unprofessional errors the result of the proceeding would have been different. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984). The deficiency prong is not met where the challenge regards trial counsel's strategic choices made after a thorough investigation of the law and facts as they relate to plausible options. State v. Davis, 116 N.J. 341, 357 (1989). Such strategic choices are "virtually unchallengeable." Ibid. (citations and internal quotations omitted). As long as they are reasonable and well-grounded in light of the overall context of the trial, they are not subject to being second-guessed in a PCR proceeding. See Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed. 2d 502 (1994).
Applying these standards, and based upon our review of the trial record, we find no error in Judge Isman's conclusion that defendant failed to establish ineffective assistance of trial counsel. We are further satisfied that defendant failed to present the required prima facie showing of ineffective assistance to entitle him to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).
With respect to the alleged ineffective assistance of trial counsel and other trial errors, we affirm substantially for the reasons set forth by Judge Isman in his thorough and well-reasoned oral opinion of September 8, 2006.
Finally, defendant argues on appeal that he was denied the effective assistance of PCR counsel. However, he fails to state in what respect his PCR counsel was deficient. We therefore reject the argument, which lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).