On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 99-02-0065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2007
Before Judges Wefing, Parker and Lyons.
Defendant Deon Davis appeals from an order entered on June 16, 2006 denying his petition for post-conviction relief (PCR). We affirm.
On February 23, 2000, a jury found defendant guilty of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count 1); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count 2); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count 3); third degree terroristic threats, N.J.S.A. 2C:12-3b (Counts 4 and 5); and first degree attempted murder, N.J.S.A. 2C:11-3 (Count 6). On April 25, 2000, after the appropriate mergers, he was sentenced to an aggregate term of twenty-five years subject to 85% parole ineligibility.
The facts giving rise to the charges against defendant are as follows. On September 25, 1998, defendant went to the Rite-Aid where his former girlfriend worked and began stabbing her with a screwdriver. He repeatedly told her that he would kill her. A security guard intervened and wrestled with defendant to get the screwdriver and protect the victim. When the police arrived on the scene, they ordered defendant to drop the weapon and placed him under arrest. As defendant was taken to the police station, he repeatedly said that he "tried to kill the bitch," "Did I kill the bitch?" and "I hope she's dead."
On December 17, 2001, we affirmed the convictions and sentence on direct appeal and on April 25, 2002, the Supreme Court denied certification. 172 N.J. 179 (2002).
Defendant filed a PCR petition and on January 23, 2003, the petition was granted in part, amending the sentence on attempted murder to twenty-five years with seventeen years parole ineligibility. The remaining points in defendant's petition were denied.
Defendant appealed and we affirmed in part and reversed in part, remanding the matter "because the trial court applied erroneous standards in denying the requested relief."
The remand hearing was conducted on May 26, 2006. After hearing argument, the trial court rendered a written opinion, in addition to remarks on the record, on May 26, 2006.
On the record, the court indicated that the evidence against defendant was overwhelming and found that some of the issues raised by defendant were time barred, some were addressed by the Appellate Division and "in light of the overwhelming existence of proofs of his guilt, there's nothing that would trigger an ineffective assistance claim." In its written opinion, the court addressed the issues raised by defendant pro se and concluded that neither the issues raised by defendant or by defense counsel satisfied the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), because they did not show that the outcome of the trial would have differed if trial counsel had acted in accordance with defendant's claims.
In this appeal, defendant argues in counsel's brief filed on January 18, 2007:
THE COURT BELOW FAILED TO CONSIDER AND ANALYZE ALL OF THE ISSUES RAISED BY DEFENDANT IN HIS PETITION FOR POST-CONVICTION RELIEF AS DIRECTED BY THE APPELLATE DIVISION IN ITS REMAND
AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD IN ORDER TO DETERMINE WHETHER DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO THE UNITED STATES AND THE NEW JERSEY CONSTITUTION
AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER DEFENDANT'S ATTORNEY, AN ASSISTANT DEPUTY PUBLIC DEFENDER, HAD A CONFLICT OF INTEREST WHEN HE REPLACED ANOTHER ASSISTANT DEPUTY PUBLIC DEFENDER AS DEFENDANT'S ATTORNEY WHO HAD A CONFLICT OF INTEREST INVOLVING ONE OF THE STATE'S WITNESSES
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL BECAUSE COUNSEL FAILED TO INCLUDE AS PART OF HIS BRIEF OR ORAL ARGUMENT ALL OF THE ISSUES RAISED BY THE DEFENDANT PRO SE. (NOT RAISED BELOW)
Defendant also filed a pro se brief on March 14, 2007, in which he argues:
THE DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. THEREFORE, POST-CONVICTION RELIEF COURT SHOULD HAVE GRANTED HIS PETITION BASED ON SUCH CLAIMS
A. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISED [SIC] ARGUMENTS THAT THE TRIAL ATTORNEY WAS INEFFECTIVE BY HIS FAILURE TO RAISE AN OBJECTION TO THE COURT'S ERRONEOUS AND MISLEADING INSTRUCTIONS ON THE ATTEMPTED MURDER CHARGE
B. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISED [SIC] ARGUMENTS THAT THE TRIAL COURT ERRED IN NOT PERMITTING DEFENSE COUNSEL TO CROSS-EXAMINE SECURITY OFFICER DAVID BARR AS TO HIS CRIMINAL RECORD PURSUANT TO COURT RULE 404(b)
C. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISE ARGUMENTS THAT JURY CONVICTED DEFENDANT OF SECOND-DEGREE AGGRAVATED ASSAULT AGAINST N.J.S.A. ...