On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 92-04-1422-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Wefing and Yannotti.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
In 1993 a jury convicted defendant of conspiracy, N.J.S.A. 2C:5-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1); and one count of receiving stolen property, N.J.S.A. 2C:20-7. Defendant was sentenced to an aggregate sentence of thirty years in prison, with a fifteen-year period of parole ineligibility. We affirmed defendant's convictions and sentence. State v. Starks, No. A-4431-92 (App. Div. Feb. 28, 1995). The Supreme Court denied certification. State v. Starks, 141 N.J. 94 (1995).
Defendant filed a petition for PCR. Unfortunately, for reasons which cannot be determined from the record before us, it was not acted upon for a significant period of time. In 2005, the trial judge issued a written opinion and order denying the petition. Defendant appealed, and we reversed and remanded the matter because defendant had not been afforded the opportunity for oral argument on his petition. State v. Starks, No. A-6247-04 (App. Div. Dec. 29, 2006). After oral argument, the trial judge again denied defendant's petition. Defendant has again appealed and raises the following issues for our consideration.
THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.
A defendant who alleges that he did not receive the effective assistance of counsel must overcome a presumption that his attorney's "conduct falls within the wide range of reasonable professional assistance . . . ." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984). He must also establish that the attorney's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S.Ct. 2039, 2043-46, 80 L.Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel).
A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "The defendant must show that there is 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. New Jersey has expressly adopted this two-prong standard. State v. Fritz, 105 N.J. 42, 58 (1987).
Although there is a presumption that a defendant who files a petition alleging ineffective assistance of counsel is entitled to oral argument, State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001), there is not a similar presumption that a defendant is entitled to an evidentiary hearing. Rather, defendant must make a prima facie showing that his attorney was ineffective within the meaning of the Strickland/Fritz ...