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State v. D.B.


October 23, 2008


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0030.

Per curiam.



Submitted September 24, 2008

Before Judges Lihotz and Messano.

Defendant D.B. appeals from the denial of his petition for post-conviction relief (PCR). He raises the following points for our consideration:



A. PCR Counsel Did Not Investigate the Factual Basis of Defendant's Allegations.

B. PCR Counsel Did Not Adequately Review the Trial Record.

C. PCR Counsel Did Not Evaluate Defendant's Legal Contentions or Make an Effort to Fashion the Most Effective Arguments in Support of Defendant's Petition.

D. This Matter Should Be Remanded to the Law Division for Appointment of New PCR Counsel so that the Post[-] Conviction Review Process May Begin Anew.







We have considered these arguments in light of the record and applicable legal standards. We affirm.

Following a jury trial, defendant was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. He was sentenced to five years in prison with an 85% period of parole ineligibility under the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction on direct appeal. State v. D.B., No. A-1380-02 (App. Div. June 9, 2004). Defendant's petition for certification to the Supreme Court was denied.

Defendant filed a pro se PCR petition with an accompanying memorandum of law on August 17, 2005. In it, he claimed 1) that the indictment failed to include all the necessary elements of the offense of second-degree aggravated assault; 2) that NERA was not charged in the indictment; 3) that the judge failed to provide appropriate pre-trial instructions to the jury on NERA; 4) that NERA was inapplicable to the crime for which he was convicted; and 5) that trial counsel was ineffective by not raising a "meaningful pre-trial defense," and by not "subjecting the State's case to meaningful adversarial scrutiny." On April 10, 2006, newly-appointed PCR counsel filed an amended petition and supplemental brief on defendant's behalf. Defendant filed a certification in further support, contending that his "claims of ineffective assistance lie[] both inside and outside the trial record." In particular, he claimed again that the language of the indictment was deficient, that his trial counsel failed to adequately cross-examine the victim or provide a substantive defense, that trial counsel never reviewed the victim's medical records, and that trial counsel never asked for a hearing as to whether NERA was applicable at the time of sentencing.

Oral argument on the PCR petition was held on August 3, 2006, before Judge Thomas R. Vena, who was also the trial judge in the case. Later that day, Judge Vena filed an order and written decision denying defendant's PCR petition. This appeal ensued.


Defendant first contends that his PCR counsel provided ineffective assistance. In particular he argues that PCR counsel failed to investigate the factual basis for defendant's claims, failed to adequately review the trial record, failed to evaluate defendant's legal contentions and fashion an effective argument, and that an evidentiary hearing should be held on this claim so that PCR counsel may be called as a witness and testify.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the'counsel' guaranteed... by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

We have noted that "[o]nce a defendant has established a prime facia showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether'the result of the proceeding would have been different....'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a 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). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." Ibid. (citing State v. Preciose, 129 N.J. 451, 462 (1992)).

The standard for assessing PCR counsel's performance is further informed by Rule 3:22-6(d), which requires counsel to present the court with all claims advanced by the defendant in his pro se petition, including those that lack merit. See also State v. Rue, 175 N.J. 1, 19 (2002)(holding that PCR "counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them"). PCR counsel must also "communicate with the client... determine whether there are additional claims that should be brought forward[,]... [and] advance all of the legitimate arguments that the record will support." State v. Webster, 187 N.J. 254, 257 (2006). However, when communication and investigation have yielded no support for those claims, counsel is not required to do more than advance defendant's points as enunciated in his pro se brief or petition. Id. at 256-57; Rue, supra, 175 N.J. at 19.

Defendant argues that PCR counsel was ineffective because he failed to investigate the factual and legal basis for defendant's claim that trial counsel was ineffective. He notes that the record of the PCR hearing does not demonstrate whether PCR counsel interviewed a single witness, including trial counsel, or whether he reviewed any document outside the trial record. Defendant further claims that PCR counsel did not assert trial counsel's ineffective assistance in failing to produce any evidence at trial to support a diminished capacity defense. Defendant claims that PCR counsel "did not adequately review the trial record," and points to an exchange between PCR counsel and Judge Vena in which the judge corrected counsel as to what had occurred at trial. Defendant also claims that PCR counsel failed to investigate legal claims asserted in his pro se petition, and that Judge Vena also corrected PCR counsel regarding a mistaken point of law in this regard. Lastly, defendant claims that the PCR record reveals the need for an evidentiary hearing on PCR counsel's performance, and asks that we remand the matter for such a proceeding.

While we recognize neglect of "the necessary investigation and preparation of the case" is sufficient to support a claim of ineffective assistance, Fritz, supra, 105 N.J. at 63, for a variety of reasons we conclude defendant's argument is unavailing, and that no remand is necessary. As to the allegation of deficient investigation regarding defendant's factual allegations, we note that defendant has failed to identify a single fact witness who either trial counsel, or PCR counsel, should have interviewed. Not only must defendant identify these missing witnesses, he must also put forth what testimony was anticipated and how it might have affected the outcome of the proceeding. The only witness defendant specifically names is trial counsel himself. We acknowledge the record is not clear as to whether PCR counsel ever attempted to contact trial counsel, but assuming arguendo he did not, for reasons we discuss more fully below in section II, that failure did not give rise to a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. In other words, even if trial counsel was interviewed and called as a witness at the PCR hearing, it would not have mattered. As we discuss below in section II, the same fate befalls defendant's claim that PCR counsel was ineffective for failing to raise trial counsel's ineffective assistance in not asserting a diminished capacity defense.

PCR counsel has a duty to inspect the trial record. State v. Clark, 260 N.J. Super. 559, 563 (App. Div. 1992). However, defendant's claim that PCR counsel failed to do so in this case is completely speculative. The fact that Judge Vena corrected PCR counsel regarding an event at trial hardly supports the conclusion that the attorney had failed to review the trial record.

Defendant's claim that PCR counsel failed to "evaluate" his legal contentions and "fashion the most effective arguments in support" of his position is without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2). It suffices to say that PCR counsel fully complied with Webster's requirement that he advance defendant's points enunciated in his pro se brief or petition. Webster, supra, 187 N.J. at 256-57. Based upon what we have said, there is no need to remand the matter to the trial court for an evidentiary hearing.


Defendant next argues that his trial counsel provided ineffective assistance because he failed to "present a substantive defense to the charges," in particular a "diminished capacity" defense. He claims trial counsel was not "prepared" or "aggressive." Defendant further alleges that trial counsel never examined the victim's medical records, because, had he done so, he would have challenged application of NERA to the aggravated assault conviction. Lastly, defendant claims his trial counsel failed to consult with him on a daily basis.

Judge Vena considered all these claims at the time of the PCR hearing. He found that defense counsel made various pre-trial motions and challenged the victim's credibility in his closing argument to the jury, that "defense counsel was thorough and zealous in his representation," and that defendant could not point to specific examples of defense counsel's lack of knowledge or experience. Judge Vena determined that defendant's claims regarding application of NERA were both procedurally-barred and without merit; in particular, he noted that the jury was specifically charged regarding the need to find beyond a reasonable doubt that defendant had committed a "violent crime," and that the jury answered an interrogatory in the affirmative on that issue. Judge Vena concluded that defendant was not entitled to an evidentiary hearing because his claims were "vague" and lacked "evidentiary support."

Any inquiry into trial counsel's performance must be fact-specific because his conduct must be evaluated from the attorney's perspective at the time of trial, and not through the prism created by the distorting effects of hindsight. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2066, 80 L.Ed. at 694. Our review of the trial record fully supports Judge Vena's evaluation of trial counsel's performance. Defense counsel frequently made objections during trial and demonstrated the requisite skills expected of counsel. In his opening statement, he drew the jury's attention to the various gradations of aggravated assault and specifically spoke about the injuries the victim allegedly suffered. He cross-examined every witness called by the State. We note that the jury acquitted defendant of the charge of attempted murder, the most serious charge in the indictment.

As to defendant's specific allegation that trial counsel failed to raise the diminished capacity defense, the record demonstrates that defendant's psychiatric records contained references to his regular and sustained abuse of drugs. The victim in the case claimed that the dispute that led to defendant's assault involved his demand for money to buy drugs. It is obvious, therefore, that trial counsel made a strategic decision not to introduce expert testimony regarding some claim of diminished capacity because it might further corroborate the victim's version of the events and inculpate, rather than exculpate, defendant. Such a strategic decision is presumptively valid. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. at 694. Defendant has failed to overcome the presumption, and we therefore find no basis to conclude trial counsel provided ineffective assistance.


Defendant claims the PCR court reached its decision on an inadequate record and should have conducted an evidentiary hearing on his petition. Alternatively, he claims that the points he raised in his pro se petition were sufficient to compel relief. We disagree with both contentions.

While a "claim of ineffective assistance of trial... counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" Preciose, supra, 129 N.J. at 462, it remains within the Court's discretion whether such a hearing is necessary. Ibid. That decision will not be overturned unless a fundamental injustice has taken place. State v. Marshall, 148 N.J. 89, 158 (1997)(citing State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)). More specifically, if a court finds "that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing," a hearing need not be held. Ibid. (citing Preciose, supra, 129 N.J. at 462-64.

An evidentiary hearing should usually be held if defendant presents a prima facie case of ineffective assistance of counsel. State v. Goodwin, 173 N.J. 583, 596 (2002) (citing Preciose, supra, 129 N.J. at 462). However, if the contents of defendant's petition fail to make this showing, an evidentiary hearing is not required. Cummings, supra, 321 N.J. Super. at 170-71 (citing Preciose, supra, 129 N.J. at 462-63).

Virtually every claim defendant made regarding the ineffective assistance of his trial counsel was based upon the trial record itself. The one exception might be defendant's claim that his attorney failed to consult with him on a daily basis. Assuming arguendo this was true, defendant has failed to demonstrate even in cursory fashion how that failure could have affected the outcome of the case. He has failed to point to a single issue that he would have raised with his trial counsel, but was unable to, because his lawyer failed to speak to him on a regular basis.

With the exception of his claim that trial counsel was ineffective, the points in defendant's pro se filing were, in large part, procedurally-barred, as noted by Judge Vena. See R. 3:22-4 (barring consideration of grounds that could have been presented in a prior proceeding, but were not). To the extent that Judge Vena considered the merits of defendant's pro se claims for relief, we agree with his reasoning, and alternatively affirm the order based substantially on the reasons he expressed.



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