May 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PHILLIP GRANT A/K/A PHILLIP W. GRANT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-06-0611.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Lisa, Lihotz and Simonelli.
Defendant Phillip Grant appeals from the order of March 10, 2006, denying his petition for post conviction relief (PCR). A jury convicted defendant of first degree robbery and second degree conspiracy to commit robbery. Defendant is serving an extended term of forty years imprisonment with a seventeen-year period of parole ineligibility.
Defendant appealed his conviction and sentence, contending, in part, that trial counsel was ineffective in failing to advise him on whether to testify, and in failing to consult with him on trial strategy. We affirmed. State v. Grant, No. A-1271-99T4 (App. Div. June 22, 2001), certif. denied, 171 N.J. 338 (2002).
Defendant filed a PCR petition, which Judge Marilyn Clark denied without an evidentiary hearing. On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED BY THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS.
C. PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY BEING FORCED TO GO TO TRIAL WITH HIS ASSIGNED ATTORNEY.
D. PETITIONER HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
E. PETITIONER HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
In a supplemental brief, defendant raises the following argument:
APPELLANT DID NOT HAVE THE COMPETENT LEGAL ASSISTANCE ENVISIONED BY CONTROLLING PRINCIPLES OF POST-CONVICTION RELIEF DURING THE PCR-TRIAL PROCEEDING BELOW.
We affirm with respect to the argument in Point One that defendant was denied effective assistance of trial counsel because counsel failed to advise him of his right to testify, and failed to consult with him on trial strategy. Defendant previously raised this argument in his direct appeal and it was conclusively adjudicated on the merits. State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-5). Thus, we only consider defendant's arguments relating to his remaining ineffective assistance of trial counsel claim, and his claim that appellate and PCR counsel were deficient.
Defendant contends he was deprived of the effective assistance of counsel and that we should remand for an evidentiary hearing. We reject this contention and affirm.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462 (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).
To establish a prima facie case of ineffective assistance of counsel, "a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would be altered." State v. Allegro, 193 N.J. 352, 366 (2008); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Loftin, 191 N.J. 172, 197-98 (2007).
To satisfy the first prong, the defendant must show "'that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). Under this prong, "'there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [and that, t]o rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy.'" Ibid.
The strong presumption that counsel has exercised sound trial strategy is grounded in "the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial[.]" State v. Arthur, 184 N.J. 307, 319 (2005). Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975) (citing United States v. Cariola, 211 F. Supp. 423, 427 (D.N.J. 1962), aff'd, 323 F.2d 180 (3d. Cir. 1963)). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116 N.J. 341, 357 (1989)), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).
To satisfy the second prong, a defendant must show that the error committed was "'so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 315). It is against these standards we review defendant's contention that the performance of trial, appellate, and PCR counsel was deficient.
Defendant was assigned four different attorneys from the time of his arrest to his sentencing, and he did not get along with any of them.*fn1 Defendant first contends that trial counsel was ineffective in (1) withholding vital evidence that could have exculpated him; (2) failing to raise at the Miranda*fn2 hearing that his statement to the police was not voluntary because he was under the influence of heroin at the time he gave the statement, and that he had a mental disability and could not read or write English; (3) failing to file a motion for a new trial; and (4) failing to use a video tape or an inmate property receipt to show that defendant wore a black coat instead of an orange coat on the day of the robbery. These contentions lack merit. Defendant fails to explain what evidence counsel allegedly withheld or how it was exculpatory. At the Miranda hearing defendant testified that he was under the influence at the time he gave the statement, and his ability to read and understand English was thoroughly examined. Defendant provided no evidence of a mental disability. Defendant's fourth attorney filed a motion for a new trial, which Judge Clark denied.*fn3 The color of defendant's coat was irrelevant because defendant's own statement put him at the scene of the crime when it occurred, two witnesses identified him as the robber, and he was caught at the scene.
Defendant next contends appellate counsel was ineffective in failing to meet or confer with him regarding issues to be raised on appeal, and in failing to fully address and present all of the issues defendant wanted raised. This contention also lacks merit. Defendant fails to explain what arguments he wished to present in addition to those raised by appellate counsel, or how those arguments would have changed the outcome of his appeal.
Finally, we reject defendant's newly advanced argument that PCR counsel was ineffective. PCR counsel fully and clearly articulated the issues for consideration. Following our review of the record, we are satisfied defendant received competent representation at the PCR proceeding.
Based upon our careful review of the record, we conclude that, having failed to present a prima facie case supporting his PCR petition, defendant was not entitled to an evidentiary hearing.