July 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HOWARD HAMILTON, A/K/A ANTOINE HAMILTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-03-0609.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2008
Before Judges Cuff and Simonelli.
Defendant Howard Hamilton appeals from the order of September 12, 2006, denying his petition for post-conviction relief (PCR) without an evidentiary hearing.
On appeal, defendant raises the following contentions:
POINT I THE PCR COURT REVERSIBLY ERRED IN FAILING TO GRANT HAMILTON'S POST-CONVICTION RELIEF BASED UPON THE CLAIMS THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE (1) IN FAILING TO BRING A MOTION TO SUPPRESS AS EVIDENCE THE DRUGS ALLEGEDLY SEIZED FROM HIS PERSON; (2) IN FAILING TO DISCOVER AND SUBPOENA FOR TRIAL THE VIDEO TAPE OF HAMILTON'S BOOKING AT THE POLICE DEPARTMENT;
(3) IN FAILING TO INVESTIGATE ANY STATEMENTS AS TO THE RESULTS OF ANY SEARCH BY THE POLICE OFFICER WHO ACTUALLY SEARCHED HIM; AND (4) IN PROVIDING HAMILTON WITH FALSE INFORMATION TO COERCE HIM TO EXECUTE THE PLEA AGREEMENT.
POINT II THE PCR COURT REVERSIBLY ERRED IN REJECTING HAMILTON'S PETITION FOR POST CONVICTION RELIEF BECAUSE THE CUMULATIVE EFFECT OF HAMILTON'S GROUNDS FOR POST-CONVICTION RELIEF WARRANTED SUCH RELIEF.
POINT III HAMILTON WAS RENDERED INEFFECTIVE ASSISTANCE OF PCR COUNSEL WHO FAILED TO BRIEF AND ARGUE HAMILTON'S CONTENTION THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO FILE AND ARGUE A MOTION TO SUPPRESS THE DRUGS ASSERTEDLY SEIZED FROM HIM BY THE POLICE.
POINT IV AT A MINIMUM, THE PCR COURT REVERSIBLY ERRED IN REJECTING HAMILTON'S REQUEST FOR AN EVIDENTIARY HEARING ON THE ABOVE ISSUES BECAUSE HAMILTON DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF HIS TRIAL COUNSEL AND HIS PCR COUNSEL ON THOSE GROUNDS AS DISCRETE ITEMS AND IN THEIR CUMULATIVE EFFECT.
POINT V THE PCR COURT REVERSIBLY ERRED IN REJECTING HAMILTON'S REQUEST TO ATTEND THE PCR HEARING.
We reject these contentions and affirm.
Defendant was charged with third degree possession of a controlled dangerous substance (CDS) (heroin), contrary to N.J.S.A. 2C:35-10a(1) (count one); possession of CDS (heroin) with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); and third degree distribution of CDS (heroin), contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count three). While awaiting trial on these charges, defendant was charged with possession of heroin, and possession of heroin with intent to distribute.
Defendant proceeded to trial, and a jury was empanelled. Prior to the presentation of the State's case, defendant entered into an unconditional plea agreement which required him to plead guilty to the three counts and the new charges. In exchange, the State agreed that if it applied for an extended sentence*fn1 on the three counts, defendant's sentence would not exceed ten years with a five-year period of parole ineligibility,*fn2 and that on the new charges, it would recommend a concurrent six-year term of imprisonment with a three-year period of parole ineligibility.
Defendant pled guilty pursuant to the plea agreement. He acknowledged, under oath, that he read and voluntarily signed the plea form and supplemental plea form for drug offenses; he discussed the forms with counsel; he understood he could proceed to trial; he had no questions about the plea; and he was satisfied with his attorney's services. Defendant also admitted possessing heroin and transferring it to another person.
Before sentencing, defendant wrote to Judge Connor complaining about his attorney and requesting withdrawal of his plea. After reviewing the videotape of the plea hearing, the judge rejected defendant's request, finding as follows:
Mr. Hamilton was placed under oath. Mr. Hamilton set forth his understanding of the terms of that particular plea agreement. Mr. Hamilton, under oath, gave a factual basis for the guilty plea. Mr. Hamilton, under oath, indicated his satisfaction with his attorney's services among other things.
And then, last but not least, in the bail proceeding, which was referred to, the Prosecutor moved to revoke bail. Mr. Hamilton wished to address the Court with respect to the bail issue and obviously was afforded the opportunity to do that. And in Mr. Hamilton's allocution to the Court at the time of that bail proceeding, other revealing details totally inconsistent with this application here today. So by reason of what occurred on the record at the time of the plea, I deny Mr. Hamilton's application to retract his guilty plea at that point in time.
The judge merged counts one and two into count three and sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility. The judge also imposed the appropriate penalties, fees, and assessments, and suspended defendant's driver's license for two years, beginning December 13, 2002. Defendant also received the concurrent sentence contemplated in the plea agreement.
Defendant appealed his sentence. The appeal was heard on our Excessive Sentence Oral Calendar. See R. 2:9-11. We affirmed. Defendant then filed the PCR petition, contending he was denied effective assistance of counsel. The trial judge denied the petition without an evidentiary hearing.
In this appeal, defendant first contends trial counsel was ineffective because he failed to file a motion to suppress the drugs allegedly seized from him;*fn3 failed to investigate whether there was any videotape of defendant's booking which would have proved he did not possess heroin; failed to investigate, interview, or subpoena for trial, the police officers who searched defendant and the person who allegedly purchased heroin from him (who died before trial); and provided false information to coerce him to execute the plea agreement.*fn4 Defendant also contends PCR counsel was ineffective for failing to address trial counsel's deficiencies in PCR counsel's supplemental brief.*fn5
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (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). The defendant is required to show: (1) "'that counsel's performance was deficient[,]'" and (2) "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
Adequate assistance of counsel should be measured by a standard of "reasonable competence." Id. at 60. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). Thus, the defendant "must show that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). "Reasonable probability" means "'a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
"[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). When claiming trial counsel inadequately investigated his or her case, the petitioner "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." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial.
Based upon our review of the record, we agree with Judge Connor that defendant failed to establish a prima facie case of ineffective assistance of counsel. Except for his self-serving statements, defendant provided no evidence justifying a suppression motion; he failed to provide certifications to demonstrate that there was discoverable evidence prior to trial, including the existence of a videotape, that had the likelihood of successfully rebutting the State's evidence; and he failed to provide any evidence that his plea was the result of his attorney's coercion and misinformation.
Defendant also contends that Judge Connor erred in rejecting his request to attend the PCR hearing. This contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments.
Rule 3:22-10 only requires a defendant's presence in court "when oral testimony is adduced on a material issue of fact within the defendant's personal knowledge." No testimony was adduced in this proceeding. Defendant was not entitled to an evidentiary hearing because he did not establish a prima facie case of ineffective assistance of counsel.