On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-08-1748-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Collester and Graves.
Defendant Anthony Gould appeals from an order dated April 20, 2007, denying his petition for post-conviction relief (PCR). Tried to a jury, defendant was convicted of murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. He was sentenced to an aggregate term of sixty-five years of imprisonment with thirty years of parole ineligibility. We affirmed his conviction and sentence on April 11, 2005 (State v. Anthony L. Gould, Docket No. A-4678-02T4). Certification was denied by the Supreme Court on July 18, 2005. State v. Gould, 185 N.J. 38 (2005). On August 26, 2005, defendant filed his PCR petition which alleged ineffective assistance of trial and appellate counsel, prosecutorial misconduct and failure of the trial judge to adequately instruct the jury. Supplementing defendant's pro se brief, PCR counsel further alleged that defendant had set forth at least prima facie proof that he had been deprived of effective assistance of counsel and was thereby entitled to an evidentiary hearing. Oral argument was heard by Judge James E. Isman, who was also the trial judge in the matter, and defendant's PCR petition was denied. This appeal followed.
Defendant argues on appeal the following:
POINT I - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL RELATING TO TRIAL COUNSEL'S FAILURE TO HAVE HIM TESTIFY AT TRIAL, THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.
During his trial defendant never denied killing twenty-year-old Shanine Allen after beating her and stabbing her forty-two times. The defense was that defendant's conduct did not constitute purposeful murder but rather passion/provocation manslaughter. His main argument before us on PCR is that he was entitled to an evidentiary hearing to fully address his claim that his trial attorney was ineffective by not insisting that he testify at his trial about "the repeated acts of physical and verbal abuse [he] suffered at the hands and tongue of Shanine Allen." The argument has no merit.
Defendant was specifically examined by Judge Isman as to his decision whether to testify on his own behalf. Defendant freely, knowingly, and intelligently responded by waiving his right to testify. He cannot now premise an ineffective assistance of counsel claim for PCR on his failure to testify. State v. Ball, 381 N.J. Super. 545, 555-58 (App. Div. 2005). See also State v. Bey, 161 N.J. 233, 275 (1999), cert. denied, 530 U.S. 1245, 120 S.Ct. 2693, 147 L.Ed. 2d 964 (2000).
Moreover, as noted by Judge Isman, if defendant's attorney had prevailed upon him to testify at trial, there was no realistic possibility that the jury's verdict would have been altered in light of the savage and continuous attack upon the victim.