February 25, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KATHLEEN JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-06-0726.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 4, 2009
Before Judges Cuff and Baxter.
Defendant Kathleen Jones appeals from the denial of her petition for post-conviction relief (PCR). She is serving a fifteen-year term of imprisonment for first degree robbery subject to a NERA*fn1 85% parole ineligibility term and a concurrent fifteen-year term for use of a juvenile to commit a criminal offense following a guilty plea to two counts of a multi-count indictment.
On appeal, defendant raises the following arguments:
DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL ON HER POST CONVICTION RELIEF PETITION IN THAT ASSIGNED COUNSEL FAILED TO RAISE AND ARGUE ISSUES CONTAINED IN HER PRO SE PETITION AND ACCOMPANYING CERTIFICATION.
DEFENDANT DID NOT RECEIVE A FAIR HEARING AND WAS DENIED DUE PROCESS ON HER PETITION FOR POST CONVICTION [RELIEF] BECAUSE THE JUDGE WAS UNDULY BIASED AGAINST HER (not raised below).
DEFENDANT [SIC] THE COURT BELOW ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, ¶ 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002).
First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
An evidentiary hearing is required only when the facts viewed in the light most favorable to the defendant would entitle the defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). The Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:
If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.
[Ibid. (citations omitted).]
Having reviewed defendant's contentions in light of the record, we are satisfied that the arguments presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
One of defendant's principal arguments is that her trial attorney did not protect her right to allocution. The record belies that contention. At sentencing, defendant made the following statement to the court:
Your Honor, I'd like to take this time to apologize to you, my children, my family, and to the community as a whole, for putting you all in the awkward position of comprehending the absurdity of this crime.
As an adult, and mother, I am responsible for this serious tragedy. And, as such, I should have prevented this from happening instead of taking part in it. . . . Not one day goes by that I am without deep remorse, guilt and shame for the horrendous error in judgment that I made on that fatal day eleven months and eighteen days ago. I thank God that no one, especially my daughters, was physically injured.
In spite of my insidious [sic] behavior, Your Honor, I am asking for a second chance. I'm not a threat to society. If there were any way to go back and change this, I most certainly would. Again, I am truly sorry. I love my children very much and would give anything to take this burden from them. Please forgive me, and please have mercy on me. I think that's about it. Thank you.
In this statement defendant also assumed responsibility for her criminal behavior and indicated no hesitation or remorse about entering a guilty plea and surrendering her right to trial.
Furthermore, defendant does not identify the collateral consequences her counsel should have explained to her or what she would have done differently if she received more information prior to her plea. This deficiency forecloses establishing a prima facie case of ineffective assistance of counsel and the need for an evidentiary hearing.
Finally, the record does not suggest that the judge's expressed frustration with PCR practice precluded a fair and balanced review of the merits of defendant's petition.