On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 03-05-0652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Chambers.
Defendant appeals from an October 25, 2007 order denying his petition for post-conviction relief (PCR). On appeal, defendant raises three points for our consideration:
TRIAL COUNSEL WAS INEFFECTIVE FOR ADVISING DEFENDANT TO ENTER A PLEA WITHOUT FIRST CHALLENGING THE STATE'S BURDEN TO PROVE THE REQUIRED ELEMENTS OF ROBBERY IN THE FIRST DEGREE.
DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE ENTITLING HIM TO AN EVIDENTIARY HEARING.
DEFENDANT'S MOTION FOR POST CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED FROM CONSIDERATION ON THE MERITS.
We conclude that defendant's arguments are without merit and affirm substantially for the reasons expressed by Judge Citta.
Defendant's PCR petition is primarily couched in terms 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). "'[T]he right to counsel is the right to the effective assistance of counsel.'" Id. at 686, 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, 25 L.Ed. 2d 763, 773 (1970)). New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 52 (1987).
To establish a prima facie case of ineffective assistance of counsel, a defendant must demonstrate that defense counsel's performance was indeed deficient and that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. ...