September 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIKE TYSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-09-2720.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 20, 2008
Before Judges A. A. Rodríguez and C. L. Miniman.
Defendant Mike Tyson appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
In 2003, following a jury trial, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)1. The judge imposed an extended twenty-year term with a ten-year parole disqualifier to be served consecutively to a life term without parole previously imposed upon defendant on an unrelated indictment. We affirmed on direct appeal. State v. Tyson, No. A-4891-02T4 (App. Div. July 13, 2004), certif. denied, 182 N.J. 143 (2004).
Defendant filed pro se a first PCR petition, arguing that the imposition of an extended term violated defendant's constitutional rights to trial by jury and due process of law. Assigned counsel filed an amended petition, raising the following issues: (a) trial counsel was ineffective for having failed to object to statements made by the prosecutor that "exceeded his expertise on matters not in evidence;" and for having failed to object to inflammatory statements made by the prosecutor; (b) the prosecutor committed misconduct by commenting on matters that "were beyond his expertise and which were not in evidence;" and (c) "appellate counsel was ineffective for having failed to brief the superior court on meritorious issues." The judge denied the petition without holding an evidentiary hearing. The judge found that the prosecutorial misconduct issue was previously raised on direct appeal. Thus, it was procedurally barred. The judge also found that defendant did not establish a prima facie case with respect to the issues of ineffective assistance of trial counsel or appellate counsel.
On appeal, defendant contends:
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED UNDER RULES 3:22-4 AND 3:22-5 BECAUSE THE DEFENDANT ESTABLISHED CERTAIN CRITERIA WHICH ALLOWED FOR A RELAXATION OF THESE RULES.
Contentions that were raised on appeal and decided cannot be raised again on PCR. R. 3:22-5. Issues that could have been, but were not, raised on direct appeal are also barred from consideration on PCR. R. 3:22-4. Therefore, we will not address defendant's contention that:
THE COMMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT THEREBY DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.  U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, § 9-10. Defendant also contends that:
THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR [PCR] SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND [PCR] COUNSEL.
A. The Defendant Was Denied The Effective Assistance of Trial Counsel As Trial Counsel Failed To Object To Improper Comments Made By The Prosecutor In Summation.
B. The Defendant Was Denied The Effective Assistance of Appellate Counsel When He Failed To Raise The Issue Of Ineffective Assistance Of Trial Counsel On Appeal.
C. The Defendant Was Denied The Right To Effective Assistance Of Counsel When His [PCR] Attorney Failed To Argue That Ineffective Assistance Of Counsel Claims Based Upon Allegations and Evidence Outside The Record Cannot Be Disposed Of Without A Hearing.
We are not persuaded.
A charge of ineffective assistance of counsel must be evaluated in light of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987). Pursuant to Strickland, a defendant seeking to vacate a conviction on the grounds of ineffective assistance of counsel has the heavy burden of proving both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.
We note that the issue of the prosecutor's remarks were raised on direct appeal as grounds for reversal. We rejected that contention stating, "we conclude that although the Assistant Prosecutor's remarks were improper, they did not deprive defendant of a fair trial." Therefore, in addition to being procedurally barred from raising the issue, R. 3:22-4, defendant has failed to show any prejudice from trial counsel's failure to object to the remarks. Therefore, the contention regarding ineffective assistance of trial and appellate counsel fails for defendant's inability to show any prejudice.
Here, we do not find that counsel's performance was deficient. However, assuming that trial counsel's performance was deficient, defendant does not make any showing that but for counsel's performance the outcome would have been different. Because defendant is unable to establish the prejudice prong of the Strickland/Fritz standard, his petition was properly denied.
It is well settled that when issues of defective performance of trial counsel are raised involving disputed facts outside the record, the appropriate procedure for their resolution is not a direct appeal. Rather, the appropriate procedure involves an application for post-conviction relief accompanied by a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992).
Our review of this record here persuades us that, on its face, the petition did not implicate disputed facts outside the record. Therefore, there was no need for an evidentiary hearing. For that reason, we reject the contention that PCR counsel was ineffective.
Moreover, for the same reason, we reject the final contention:
NOTWITHSTANDING THE MERITS OF DEFENDANT'S ARGUMENTS, THE PETITION FOR [PCR] SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
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