April 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN GENTRY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-08-1611.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Sapp-Peterson and Messano.
During a four-month period in 2000, the Atlantic County grand jury returned three indictments against defendant Shawn Gentry. In Indictment #06-1138, defendant was charged with third-degree absconding from parole, N.J.S.A. 2C:29-5(b). In Indictment #08-1611, he was charged with the second-degree robbery of Joan Scozzafava, N.J.S.A. 2C:15-1(a)(1). And, lastly, in Indictment #09-1959, defendant was charged with the second-degree robbery of Michael Martelli, N.J.S.A. 2C:15-1(a)(1).
Tried before a jury on Indictment #08-1611, defendant was convicted of second-degree robbery. We recount the evidence at trial by reference to our prior opinion in which we affirmed defendant's conviction and sentence on direct appeal.
On the evening of May 23, 2000, defendant was in Bally's Park Place Casino in Atlantic City. A surveillance officer noticed defendant seemed nervous. He suspiciously, and repeatedly, removed his jacket, draped it over his arm and then put it back on. Scozzafava was also in the casino, playing a slot machine. Defendant sat down at an adjacent machine to the left of Scozzafava. she had just won $250 that was paid in cash and which she placed in her left pants pocket. Defendant reached over to Scozzafava with his arm and hand covered by his jacket. He reached into her left pants pocket. She told him to remove his hand and she pulled away from defendant, ripping her pants in the process. As she pulled away, defendant's hand, holding $250, came out of her pants . . . . In the ensuing scuffle, defendant dropped the $250 and broke Scozzafava's finger. Defendant attempted to retrieve the money from the floor, but was fended off by Scozzafava's brother-in-law. These events were videotaped by casino security and the tape was played for the jury. [State v. Shawn Gentry, A-4109-00 slip op. 2-3 (June 20, 2002)].
Before sentencing, defendant entered guilty pleas to an amended charge of fourth-degree hindering apprehension, N.J.S.A. 2C:29-3, on Indictment #06-1138, and second-degree robbery on Indictment #09-1959. Pursuant to the negotiated plea bargain, defendant was to receive a maximum sentence of eighteen months on the hindering charge, no particular sentence on the robbery charge, although the State agreed that no period of parole disqualification would attach, and both sentences would be served concurrently to the sentence on the earlier robbery conviction.
The trial judge sentenced defendant to an extended term of imprisonment of fifteen years, seven of which were to be served without parole, on the robbery verdict, and concurrent sentences in accordance with the plea bargain on the other two guilty pleas.
After his conviction and sentence were affirmed on direct appeal, defendant filed a petition for post-conviction relief (PCR).*fn1 In an oral opinion, the PCR judge denied defendant's request for an evidentiary hearing on the petition, and also denied the petition, entering an order to that effect on December 9, 2005. This appeal ensued.
Defendant raises the following points for our consideration:
[DEFENDANT] SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING ON THE ISSUE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO NOTIONS OF FUNDAMENTAL FAIRNESS.
[DEFENDANT'S] PLEA WAS NOT VOLUNTARY, WILLING AND ADEQUATELY COUNSELED.
 DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
THE SENTENCE WAS MANIFESTLY EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
At the PCR hearing, defendant argued he was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel. In particular, he argued that his assigned public defender, Karen Andrews, was sick on the first day of trial when the jury was selected, and the judge, over defendant's own objection, denied a continuance and compelled the first assistant public defender from the same office, Raymond Lee, to commence jury selection. Defendant argued that Lee did not know him, nor was he familiar with the facts of the case. Thus, defendant argued, his ability to exercise peremptory challenges was compromised.*fn2 The PCR judge determined defendant had failed to establish a prima facie claim of ineffective assistance of counsel, and, thus, denied both the request for an evidentiary hearing and the petition itself.
We have noted that "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." Ibid. (citing State v. Preciose, 129 N.J. 451, 462 (1992)).
Here, there were no facts presented by defendant that were outside the trial record and therefore there was no need to conduct an evidentiary hearing. Essentially, defendant argued that because Lee, who selected the jury, was substituting for Andrews, he received, as a matter of law, the ineffective assistance of counsel. We find no merit to this claim.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
Here, defendant has produced no evidence to establish either prong of the Strickland/Fritz test. He has made no specific allegation that Lee performed in a deficient way; in fact, in his PCR brief, defendant specifically noted that he "d[id] not challenge the abilities and trial experience of  Lee." Nor, has defendant made any allegation that the results of his trial, or for that matter, the results of jury selection, would have been different. Defendant cites no authority for the proposition that having been furnished with ostensibly competent counsel to select the jury, he was nonetheless denied effective assistance of counsel, as contemplated by the Sixth Amendment, simply because Lee was not the attorney previously assigned to defendant's case.
Defendant's second point is equally unavailing. As best we can discern, defendant argues his guilty pleas to the other two indictments were "neither voluntary, intelligent nor (sic) knowing." He also asserts that "trial counsel was ineffective in advising [him] to plead guilty . . . without any discussion of trial strategy."*fn3
If defendant's contention is that his guilty plea was not "made voluntarily," as required by Rule 3:9-2, that claim is procedurally barred by Rule 3:22-4 because it could have been raised on direct appeal and was not. Moreover, if the claim is that defendant was furnished ineffective assistance of counsel before pleading guilty, defendant never raised this issue in his PCR petition and brief, and, as far as we can tell from the available record, the issue was never argued before the PCR judge. We therefore refuse to consider it. See State v. Arthur, 184 N.J. 307, 327 (2005) (holding appellate review is appropriately confined to those issues of ineffective assistance of counsel asserted by the defendant's PCR petition).
Defendant next claims his appellate counsel provided ineffective assistance. In particular, he claims that counsel failed to assert the "issue of [his] constitutional rights being violated by having a different, substitute lawyer pick his jury." He also claims appellate counsel "missed all of [the] points raised in [defendant's] PCR brief." He contends, at the least, he was entitled to an evidentiary hearing on the issue.
Once again, defendant failed to raise any factual issues that required resolution through testimony. See State v. Moore, 273 N.J. Super. 118, 127 (App. Div.) (noting an evidentiary hearing is not required where "[t]he only possible reason for a hearing . . . would [be] for original appellate counsel to explain why she did not raise the issues defendant now finds so persuasive as grounds for reversal"), certif. denied, 137 N.J. 311 (1994). No evidentiary hearing was required.
Appellate counsel presented two arguments on direct appeal. First, she argued that the trial judge erred in denying defendant's motion for acquittal because the State had failed to meet its burden of proof on the robbery charge. Second, she argued that defendant's sentence was excessive. In a pro-se filing, defendant also argued that the trial judge erred in failing to instruct the jury as to a lesser-included offense, and that the prosecutor had committed misconduct.
In his PCR brief, defendant raised three arguments. The first was that trial counsel was ineffective, and in support of this contention defendant cited eight specific allegations. Defendant also argued that the judge should have granted a mistrial because the prosecutor inadvertently commented that defendant was "awaiting trial on other matters." Lastly, defendant's PCR brief argued that his sentence violated the holding in State v. Natale, 184 N.J. 458 (2005).
We apply the same standard to defendant's claims of ineffective assistance of appellate counsel that we do to claims of ineffective assistance of trial counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987)). We have also held, however, that the "mandate" "which requires PCR 'counsel [to] advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit[,]' . . . does not apply to appellate counsel." Gaither, supra, 396 N.J. Super. at 515 (quoting R. 3:22-6(d) (citing Jones v. Barnes, 463 U.S. 745, 753-54, 103 S.Ct. 3308, 3314, 77 L.Ed. 2d 987, 996 (1983)).
The PCR judge considered each and every claim defendant made regarding the ineffective assistance of trial counsel, as well as defendant's claim that he was denied the effective assistance of counsel because of Lee's substitution. The PCR judge found none of them to be meritorious, and noted that appellate counsel was not "ineffective because [she had] failed to present every conceivable issue." Our own review of the allegations raised in defendant's PCR brief results in the conclusion that none of the issues, had they been raised on appeal, would have altered the result and caused us to reverse defendant's conviction. Morrison, supra, 215 N.J. Super. at 546. We find no merit to defendant's claim of ineffective assistance of appellate counsel.
Lastly, defendant's claim that his sentence was manifestly excessive lacks sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2). On direct appeal, we considered and denied defendant's general claim that his sentence was excessive. To the extent that the issue has been raised again, it is procedurally barred by Rule 3:22-5. As to defendant's claim that he is entitled to re-sentencing under the holding in Natale, he is not entitled to the "pipeline retroactivity" accorded to that decision since his direct appeal rights had already been exhausted when the Supreme Court decided the case. Natale, supra, 184 N.J. at 494.