June 12, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ISHMON L. STALLWORTH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 92-10-01224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2008
Before Judges Lintner and Graves.
Defendant Ishmon Stallworth appeals from a decision by the trial court denying his petition for post-conviction relief. On appeal, defendant presents the following arguments:
THE TRIAL COURT'S DETERMINATION THAT MR. STALLWORTH'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS WITHOUT MERIT AND THAT A HEARING WAS NOT [WARRANTED] SHOULD BE [REVIEWED] DE NOVO AND REVERSED BECAUSE THE COURT INCORRECTLY INTERPRETED THE LAW ON INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
MR. STALLWORTH'S CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WAS NOT PROCEDURALLY BARRED.
After considering these contentions in light of the record, the applicable law, and the trial court's findings and conclusions, we are satisfied defendant's arguments do not warrant extended discussion. R. 2:11-3(e)(2). We agree with the trial court's evaluation of defendant's petition, and we affirm substantially for the reasons stated by Judge Wertheimer in his written decision dated December 22, 2005, with only the following comments.
On October 27, 1993, a jury found defendant guilty of first-degree armed robbery (count one of Union Indictment No. 92-10-01224); third-degree unlawful possession of a handgun without a permit (count two); second-degree possession of a handgun for unlawful purposes (count three); and fourth-degree aggravated assault (count four). Following the verdict, the court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). At sentencing on February 10, 1994, Judge Wertheimer merged counts two and three into count one and sentenced defendant to life with a twenty-five-year period of parole ineligibility. On count four, the court imposed an eighteen-month term, with a nine-month period of parole ineligibility, to be served consecutively to the term imposed on count one.
Defendant appealed and, in an unpublished opinion, we affirmed defendant's judgment of conviction. In doing so, we specifically rejected the following arguments: (1) the court should have appointed an expert witness to evaluate defendant's withdrawal from his drug habit; (2) defendant was denied the effective assistance of counsel; and (3) defendant's sentence was excessive. State v. Stallworth, No. A-4564-93 (App. Div. March 6, 1995). Certification was denied by the New Jersey Supreme Court on May 25, 1995. State v. Stallworth, 141 N.J. 100 (1995).
Defendant elected not to testify at his trial, and he did not present any evidence or witnesses in his defense. In our prior opinion, we summarized the facts of the case as follows: "The evidence of defendant's guilt was overwhelming. After robbing a store at gunpoint, he was caught by the police in flight. Not only was he positively identified by the victims, but also the police found him in possession of the revolver and proceeds of his crime."
To successfully argue trial counsel did not provide the level of assistance required under the Sixth Amendment, a "defendant must show that counsel's performance was deficient" and "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). These standards for assessing ineffective assistance of counsel claims were adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). When applying the Strickland/Fritz standards "to assess a claim of ineffective assistance of appellate counsel, defendant must show not only that his attorney's representation fell below an objective standard, but also that he was prejudiced, i.e., but for counsel's unprofessional errors, the result would have been different." State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987).
In the present matter, Judge Wertheimer, who presided over defendant's trial, concluded that the performance of defendant's appellate counsel was not deficient. Additionally, he found that the outcome of defendant's trial "would have been the same" even if it was assumed that appellate counsel's conduct was deficient. Thus, Judge Wertheimer concluded defendant failed to satisfy the Strickland/Fritz test and that determination is fully supported by the record. Because defendant failed to substantiate that the performance of his appellate counsel was constitutionally deficient, and that he was prejudiced by the allegedly defective performance of counsel, no evidentiary hearing was necessary. See State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998) (noting evidentiary hearing need not be held unless "post-conviction relief application involves material issues of disputed fact which cannot be resolved by reference to the existing record"), certif. denied, 158 N.J. 72 (1999).
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