April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE STARKS, A/K/A DWAYNE COHEN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 test before the matter will proceed to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).
Within his brief, defendant contends that his trial attorney was ineffective in two respects--not calling two alibi witnesses and not effectively communicating the benefits of accepting the plea offer which had been extended. As to the first, defendant explicitly withdrew that contention at the oral argument before the trial judge. We thus decline to consider it on appeal. We are compelled to note, however, that the transcripts of the trial proceedings are replete with references to the difficulties defendant's attorney encountered in attempting to secure witnesses to present an alibi defense.
As to the second, the record contains two letters from defendant's trial attorney outlining the plea offers that had been extended. The first letter, dated July 6, 1992, referred to a plea offer of fifteen years, with a five-year period of parole ineligibility but indicated it was subject to further negotiation. The second letter to defendant, dated September 26, 1992, conveyed an offer in which the period of parole ineligibility would be reduced to three years if defendant would agree to testify against his co-defendants.
In addition, the trial transcripts also reflect that defendant's attorney communicated plea offers to defendant. We note, for instance, the transcript of December 10, 1992, during which defense counsel, in defendant's presence, referred to "each and every time [she had] posited the State's generous offer" to defendant.
Defendant did not dispute or contradict this statement in any manner. We consider this omission significant because the transcripts also indicate that defendant did not hesitate on other occasions to complain of his attorney or to disagree with her. We are confident that if this statement by the attorney was inaccurate in any respect, defendant would not have hesitated to intervene and say so.
Additionally, the trial judge retrieved his trial notes in preparation for the PCR. The trial judge stated that his notes indicated that defendant had rejected a plea offer which involved only three years of parole ineligibility if he testified against his co-defendant.
Defendant also complains that the attorney who represented him in connection with his PCR petition was ineffective. His essential complaint with respect to the performance of his PCR attorney is that she failed to establish that defendant's trial attorney was ineffective. An attorney is not ineffective, however, because the result achieved is not what the client desired.
The trial judge held oral argument on two occasions on defendant's PCR petition. After the first, the trial judge scheduled a second date to permit defendant's trial attorney to be subpoenaed. Defendant's PCR attorney cannot be considered ineffective because the files of the trial attorney contained extensive notes with respect to the efforts made to locate alibi witnesses.
The order denying defendant's petition is affirmed.
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