July 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHNNIE A. DAVENPORT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. 97-09-1619 and No. 98-12-2264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2008
Before Judges Wefing and Parker.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was tried before a jury on two separate indictments. Indictment 97-09-1619 contained twenty-five counts, and defendant was named in nineteen of them. He was charged with a variety of drugs and weapons offenses, including the first-degree crime of leading a narcotics trafficking network, N.J.S.A. 2C:35-3. Indictment 98-12-2264 contained one count and charged defendant with the third-degree crime of tampering with a witness, N.J.S.A. 2C:28-5. The jury found defendant guilty on nine counts of Indictment 97-09-1619, including leading a narcotics network, and acquitted him of the remainder. It also found him guilty of witness tampering. The trial court granted the State's motion to impose an extended term and sentenced defendant to life in prison, with a thirty-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Davenport, No. A-6102-98T4 (App. Div. Dec. 20, 2001). The Supreme Court granted defendant's petition for certification and affirmed his convictions and sentence. State v. Davenport, 177 N.J. 288 (2003).
Thereafter, defendant filed a timely petition for post- conviction relief, and counsel was assigned to represent defendant in connection with that petition. After hearing oral argument, the trial court denied the petition, and defendant has appealed.
Defendant raises the following arguments on appeal:
THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S REQUEST MADE SEVEN MONTHS BEFORE HIS TRIAL BEGAN TO HAVE HIS STANDBY COUNSEL UNDERTAKE HIS DEFENSE.
THE DEFENDANT'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE, PARTICULARLY WHERE APPELLATE COUNSEL FAILED TO ADDRESS THE DEFENDANT'S COMPLAINT THAT HE WAS DENIED ACCESS TO INVESTIGATIVE SUPPORT SERVICES BECAUSE HE REPRESENTED HIMSELF AS WELL AS THE TRIAL COURT'S REFERENCE TO THE DEFENDANT AS "MR. AIRHEAD."
AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.
While we agree with the State that defendant's first point on appeal is procedurally barred because defendant did not raise it on his direct appeal, Rule 3:22-4, we also are satisfied that it lacks merit and does not comport with the record.
Defendant appeared before the trial court on March 9, 1998, dissatisfied with the attorney who had been assigned to represent him, and he informed the court that he wished to represent himself in connection with these charges. The trial court queried him about his understanding of the charges he faced and their potential consequences for him if he were convicted. It also queried defendant about his understanding of the State's offer if he were to plead guilty: thirty years with a fifteen-year period of parole ineligibility. Defendant was not interested in pursuing plea negotiations but wanted to proceed to trial. After satisfying itself of defendant's understanding, the trial court granted defendant's request but said it would contact the Office of the Public Defender to appoint stand-by counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975).
Defendant appeared before the trial court on August 18, 1998, accompanied by stand-by counsel. During the course of the proceedings that day, the trial court handled a number of motions. At the end of the day, defendant asked the trial court to appoint an investigator to aid in his defense. The trial court noted that it had previously told defendant that it could not direct the public defender's office to appoint an investigator for defendant and that if defendant felt he required the assistance of an investigator, he had to make application to the public defender's office. Defendant then asked for his stand-by counsel to "be put back in charge" of his defense. The trial court instructed defendant that if he wished that, he again had to make application to the public defender's office. The trial court told defendant that if the public defender's office granted that request, there was no assurance that it would name stand-by counsel to take over the defense. Defendant never followed through with an application to the public defender's office, however. Defendant cannot burden the trial court with the consequences of his own inaction.
We also see no merit in defendant's second argument. A defendant is as entitled to the effective assistance of appellate counsel as he is to the effective assistance of trial counsel. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed. 2d 821 (1985). To prevail on a claim that appellate counsel was ineffective, a defendant must establish two elements: that "counsel unreasonably failed to discover non-frivolous issues," and the existence of "a reasonable probability that, but for his counsel's unreasonable failure . . . he would have prevailed on his appeal." Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764, 145 L.Ed. 2d 756, 780 (2000).
As we have indicated, the record does not bear out the complaint that the trial court denied him access to investigative services. Accordingly, his appellate counsel cannot be considered ineffective for not raising the issue on direct appeal.
His second complaint with respect to his appellate attorney requires a further explication of the record. The transcript of February 9, 1999, contains the following statement by the trial court addressed to defendant, "Well, Mr. Air Head, you took it out?" Defendant contends that his appellate attorney was ineffective for not arguing on his direct appeal that this statement, made outside the presence of the jury, indicated the trial court was biased against him.
We agree with the trial court that the record, taken as a whole, does not support defendant's position. It is clear that the colloquy on February 9, 1999, was a continuation of the hearing of February 4, 1999, when there was a discussion of what redactions, if any, should be made to certain letters by defendant before they could be used before the jury. Seen in its proper context, it is clear that the trial court was asking defendant whether he had deleted the phrase, "Mr. Air Head," and was not using that term with reference to defendant.
Defendant raises two additional items with respect to his appellate attorney, that he did not raise on appeal, the trial court's denial of his motion to disclose the identity of confidential informants, nor did he raise the fact that the assignment judge, who handled defendant's motion for release of the grand jury minutes and voting record did so without defendant being present. We note that when defendant raised this issue before the trial court, he did so in the context of arguing ineffective assistance of trial counsel (although defendant was proceeding pro se) and not in the context of ineffective assistance of appellate counsel. In any event, we are satisfied that defendant is unable to satisfy the second prong of the test for ineffective assistance of counsel, a reasonable probability he would have prevailed on appeal.
Finally, the trial court correctly decided defendant's petition without conducting a plenary hearing. There were no disputed questions of material fact which would warrant such a hearing.
The order under review is affirmed.
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