August 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BARRY SCALES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 00-06-0974 and 00-08-1372.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2008
Before Judges A. A. Rodríguez and C. S. Fisher.
Defendant Barry Scales appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
In 2001, following a jury trial, defendant was convicted of the charges set forth in Indictment 00-08-1372, i.e. third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count 1); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5b(3) (count 2); and third-degree possession with intent to distribute CDS within a school zone, N.J.S.A. 2C:35-7 (count 3). At a simultaneous bench trial, defendant was convicted of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. The judge merged the three indictable convictions and imposed a five-year term with a thirty-month parole disqualifier; and a six-month term on the disorderly persons conviction.
After another jury trial, on unrelated charges listed in Indictment 00-06-0974, defendant was convicted of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count 1); possession with intent to distribute CDS, N.J.S.A. 2C:35-5b(3) (count 2); and possession with intent to distribute CDS within a school zone, N.J.S.A. 2C:35-7 (count 3). At a simultaneous bench trial, the judge convicted defendant of the disorderly persons offenses of resisting arrest, N.J.S.A. 2C:29-2a; and possession of marijuana under fifty-grams, N.J.S.A. 2C:35-10a(4). The judge merged the three indictable convictions and imposed an extended ten-year term with a five-year parole disqualifier to run consecutively to the sentence imposed on the convictions following the first trial; and two concurrent six-month terms on the two disorderly persons convictions. On direct appeal, we affirmed all convictions and sentences. No. A-996-01T4 (App. Div. February 23, 2004), certif. denied, 179 N.J. 374 (2004) and 180 N.J. 356 (2004).
Defendant filed pro se a verified PCR petition as to all convictions. David Sachs, Esq., represented defendant at the hearing. Defendant raised the following arguments in the petition: (1) ineffective assistance of trial counsel; (2) police misconduct; (3) prosecutorial misconduct; and (4) judicial misconduct. One allegation of ineffective assistance is based on counsel's failure to call two witnesses to the suppression hearing, Tyrone Matthew and Keven Graham. No supporting certification nor affidavit from these witnesses was provided. Defendant simply certified that: "they were in court the day the trial began. They would have testified that I was not selling any drugs."
The other allegation of ineffective assistance of counsel is related to the sequence of the two trials. According to defendant, the charges set forth in Indictment 00-08-1372 were to be tried first. However, the judge decided that the charges set forth in the other indictment would be tried first.
Defendant claims that trial counsel failed to request a postponement and that the sequence of trial was the product of judicial misconduct.
The trial judge denied the PCR petition. The judge concluded that the ineffective assistance of counsel claims were waived because they were not raised on direct appeal.
Defendant appeals contending:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. The PCR Court Erred In Finding That Defendant Had Waived The Ineffective Assistance of Counsel Argument By Failing To Raise It On Direct Appeal.
B. Defendant Established A Prima Facie Case Of Trial Counsel's Ineffective Representation.
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR [PCR].
THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.
We agree with defendant that the judge was incorrect in finding that defendant had waived the ineffective assistance claim by failing to raise it on direct appeal. However, we disagree that defendant established a prima facie case, or that there was an accumulation of error warranting a reversal.
It is well settled that when issues of defective performance of trial counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is not a direct appeal, but rather a PCR application attended by a hearing, if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992). Here, the allegations involved facts outside the record. Counsel's failure to call the two witnesses could have been a matter of trial strategy or the exercise of professional judgment. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-65, 80 L.Ed. 2d 674, 693-94 (1984).
Therefore, these claims could be raised on PCR.
However, our review of this record persuades us that, on its face, it does not support the ineffective assistance claim. With respect to the failure to call witnesses, defendant has failed to provide any supporting proof. This is fatal to the petition. When arguing that counsel failed to conduct a pretrial investigation or interview witnesses 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). Defendant must assert 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." Ibid. See also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness).
As to the claim that counsel failed to request a postponement of the first trial, defendant has not demonstrated how he was prejudiced. We note that the trial judge had previously advised which of the two cases would start first. Moreover, counsel had no control over the calendar. The judge did. It is patently obvious that even if counsel had sought a postponement, the judge could have denied it.
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