March 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RANDY WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-03-0410, 00-04-0786, 01-01-0129.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Defendant Randy Williams appeals from an order entered on October 13, 2006 denying his petition for post-conviction relief (PCR). We affirm.
Defendant was tried on Indictment 00-03-0410. After the jury found him guilty of two counts of first degree robbery, N.J.S.A. 2C:15-1; two counts of third degree criminal restraint, N.J.S.A. 2C:13-2; second degree possession of firearms for an unlawful purpose, N.J.S.A. 2C:39-4a; and second degree conspiracy, N.J.S.A. 2C:5-2, he was sentenced to consecutive eighteen-year terms on each of the robbery counts and concurrent five-year terms on each of the criminal restraint counts. The remaining counts were merged into the robbery counts. He was subject to 85% parole ineligibility on one of the robbery counts, resulting in an aggregate term of thirty-six years subject to 15.3 years parole ineligibility.
On October 23, 2001, defendant pled guilty to two counts of first degree armed robbery in Indictment 00-04-0786, and one count of third degree witness tampering in Indictment No. 01-01-0129. He was sentenced pursuant to a plea agreement covering these two indictments to two concurrent twenty-year terms on the robbery counts and a five-year term on the witness tampering count. These sentences were imposed concurrent to the sentence on Indictment 00-03-0410.
On December 15, 2003, we affirmed on direct appeal, and on May 4, 2004, the Supreme Court denied his petition for certification. 180 N.J. 355 (2004).
On April 24, 2006, defendant filed a PCR petition on all three indictments, claiming ineffective assistance of trial counsel for failure to (1) assert a timely alibi defense; (2) move for a Wade hearing; (3) advise defendant of his right to testify at trial; (4) prepare an adequate defense for the Miranda*fn1 hearing; (5) request an individual voir dire of jurors as to whether the 9/11 terrorist attack would prejudice them against him; and (6) appellate counsel failed to raise ineffective assistance of trial counsel on direct appeal.
The charges against defendant arose out of a string of armed robberies of Atlantic County motels in 1999. Some of the robberies were captured on surveillance videos and ultimately the police arrived during the robbery at the Fairfield Inn in Absecon. While defendant ran out the back door and escaped, his co-perpetrator was killed in a gun fight with police. The police received an anonymous tip about defendant, who initially denied participation in the robberies. After he was arrested and read his Miranda rights, however, he gave a taped statement admitting his role in the robberies.
In this appeal, defendant argues:
TRIAL COUNSEL WAS INEFFECTIVE DUE TO INADEQUATE TRIAL PREPARATION AND INADEQUATE TRIAL REPRESENTATION ENTITLING DEFENDANT TO POST CONVICTION RELIEF
DEFENDANT HAS DEMONSTRATED PRIMA FACIE EVIDENCE ENTITLING HIM TO REMAND FOR AN EVIDENTIARY HEARING
Defendant contends that the court erred in denying his petition for PCR because his Sixth Amendment right of assistance of counsel was violated. Here, defendant alleges that trial counsel was ineffective for (1) failing to investigate a potential alibi witness; (2) "affirmatively misinforming" him about "the penal consequences of going to trial" as opposed to accepting the plea offer; and (3) failing to move for adjournment after September 11, 2001.
Pursuant to R. 3:22-1 and -2, a person convicted of a crime is permitted to file a PCR petition based on a number of grounds, one of which is the "substantial denial" of defendant's rights under the United States Constitution, the New Jersey Constitution or state laws. A petitioner must establish a PCR claim by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). Claims of ineffective assistance of counsel are well suited for "post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460.
To establish ineffective assistance of counsel, a defendant must satisfy the two-prong test defined in Strickland v. Washington, 466 U.S. 668, 687-98, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 53-58 (1987). Under the Strickland test, a defendant must demonstrate that (1) trial counsel's representation was deficient; and (2) a reasonable probability exists "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694; State v. Bey, 161 N.J. 233, 298 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).
To satisfy the first prong, the petitioner must show that counsel's acts or omissions, considered in light of all the circumstances of the case, fell "'outside the wide range of professionally competent assistance.'" State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690)). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 688-89. In satisfying the second prong, the petitioner must show that the error committed is so serious that it undermines the court's confidence in the jury's verdict or result reached. Strickland, supra, 466 U.S. at 694; State v. Chew, 179 N.J. 186, 204-05 (2004). Defendant first contends that trial counsel "failed to call [his] mother as an alibi witness." In order to establish a prima facie claim of ineffective assistance of counsel, "a petitioner must do more than make bald assertions that he was denied effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[W]hen 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." Ibid.
In Cummings, the petitioner maintained that if he had testified he would have stated that he had an alibi and was not present during the crime. 321 N.J. Super. at 170. We concluded that petitioner's "bare assertion of an alibi at this late date, without more, is insufficient to support a prima facie case of ineffectiveness." Id. at 170-71. We noted that the petitioner did not submit an affidavit or certification of the witness that would support petitioner's alibi. Id. at 171.
Here, defendant has merely made a bald assertion that his mother would testify to his physical presence with her when the crime was committed. As with the petitioner in Cummings, defendant did not proffer any competent proof, such as an affidavit or certification by his mother, to support his alibi. Indeed, the trial court noted that defendant's mother had testified during the sentencing hearing that defendant was at fault. Even if defendant's mother had testified, the trial court noted that it would have had little effect, given the overwhelming evidence against defendant, including DNA evidence, eyewitness identification, and defendant's own tape-recorded admission of guilt.
Defendant next argues that his trial counsel provided ineffective assistance by affirmatively misinforming him "of the penal consequences of going to trial," as opposed to accepting the State's plea offer. Defendant contends he went to trial because counsel led him to believe he faced a maximum term of twenty years in prison if convicted, rather than the two consecutive eighteen-year terms imposed on him after trial. A defendant who relies on trial counsel's gross misadvice as to the potential sentence to be imposed after trial and, consequently, rejects a favorable plea offer from the State, may be entitled to a new trial based upon ineffective assistance of counsel when the facts support such a claim. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002).
After considering the papers submitted in support of and in opposition to a PCR application, the trial court "has the discretion to evaluate an issue as lacking adequate factual or legal merit." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). Here, the trial court recalled the pretrial conference in which the court made defendant fully aware of his sentencing exposure if he opted for a trial and was convicted. At the pre-trial conference in which defendant acknowledged that he was aware of the consequences of going to trial, defendant signed a pre-trial memorandum memorializing his rejection of the State's plea offer. See R. 3:9-1(e)(2). The court found that defendant freely, voluntarily and knowingly elected to go to trial. Even if trial counsel had misinformed defendant, the court clarified the risks of going to trial. Defendant cannot now claim he was prejudiced by counsel's alleged "misadvice."
Finally, defendant maintains that trial counsel was ineffective for failing to move for a postponement or adjournment or alternatively, to move for a mistrial, after the national emergency of September 11, 2001. The State responds by arguing that defendant's claim "is disqualified as a basis for post-conviction relief by R. 3:22-5" because this court had previously adjudicated the issue in defendant's direct appeal. The State is correct. On direct appeal, we rejected this same argument. "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." R. 3:22-5.
Accordingly, we find no merit in any of defendant's ineffective assistance of counsel arguments.
Defendant further argues that he was entitled to a full evidentiary hearing on his ineffective assistance of counsel claims. "Although R. 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, R. 3:22-10 recognizes judicial discretion to conduct such hearings." Cummings, supra, 321 N.J. Super. at 170. If a defendant has presented a prima facie claim supporting post-conviction relief and the facts supporting the claim are outside the trial record, trial courts should ordinarily grant evidentiary hearings to address ineffective assistance of counsel claims. Ibid. (citing Preciose, supra, 129 N.J. at 462)). To establish a prima facie claim of ineffective assistance of counsel, a defendant must allege facts with specificity and show a reasonable likelihood of success under the Strickland test. Preciose, supra, 129 N.J. at 463.
Here, defendant failed to establish a prima facie claim. He has not proffered competent proof that trial counsel's performance was deficient on any of the points he has raised. The trial court properly exercised its discretion in denying defendant an evidentiary hearing.