On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-12-1533.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
Defendant, Brian J. Williams, waived a trial by jury and, following a bench trial, was convicted of second-degree robbery, N.J.S.A. 2C:15-1(a)(1). He was sentenced, as a third-degree offender, to a four-year custodial term with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, we affirmed defendant's conviction and sentence in an unpublished opinion. State v. Williams, No. A-0018-05T4 (App. Div. November 20, 2006).
Defendant filed a petition for post-conviction relief and counsel was assigned to represent him. In seeking post- conviction relief, defendant argued that his trial counsel was ineffective because he advised him to waive a jury trial, failed to negotiate a better plea, failed to advise him that he was subject to NERA, and failed to object when a witness testified that at the time of the robbery, defendant appeared to be under the influence of drugs. Defendant requested that he be re- sentenced or, alternatively, that an evidentiary hearing be conducted on the issues raised in his petition.
The court heard oral argument on the petition and, in a written opinion issued March 4, 2008, denied defendant's petition. In denying the petition, the court stated:
Despite Petitioner's claims, this Court finds that Petitioner has failed to demonstrate that he received ineffective assistance of counsel under the Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 8 L.Ed. 2d 674, 693 (1984)] test. In addition to showing objectively deficient performance, Petitioner must also demonstrate that counsel's performance resulted in prejudice, which requires a showing that, but for counsel's errors, the result would have been different. Prior to the bench trial, the trial judge specifically advised Petitioner of his right to a jury trial to which Petitioner indicated that he had freely and voluntarily decided to pursue a bench trial. . . . Petitioner further indicated to the Court prior to trial that his counsel had answered all of his questions with respect to his rights as they related to the crime charged and the applicable judicial proceedings. Moreover, after additional and careful explanation from the Court regarding Petitioner's rights and the potential legal consequences if he were to be convicted, Petitioner indicated to the Court that he understood that if he were found guilty of the second[-]degree robbery count charged, he could be sentenced to between five and ten years incarceration, to which the No Early Release Act would apply. . . . As such, this Court finds that Petitioner was advised of his rights and the potential legal consequences associated with his decision to decline the plea bargain and proceed to a bench trial, and also finds that Petitioner understood these rights and consequences--as he indicated to the Court-- prior to proceeding freely and voluntarily to trial. Petitioner's trial was presided over by a trial judge who took pains to advise Petitioner of his legal rights and to conduct a fair trial.
Alternatively, even assuming Petitioner's trial counsel were able to negotiate a plea agreement of 180 days incarceration with time served if Petitioner pled guilty to [fourth-]degree aggravated assault, Petitioner has failed to demonstrate that he received ineffective assistance of counsel under Strickland[,] [supra]. Petitioner submits that he rejected such an offer because its wording-- "aggravated assault"--disturbed him, as he felt that he had been the party mistreated in this incident rather than the aggressor.
However, trial counsel's performance would have resulted in a plea bargain to aggravated assault, a lesser-included offense of second[-]degree robbery, thereby significantly decreasing Petitioner's criminal exposure. This hardly can be seen to be "ineffective assistance of counsel."
Petitioner also fails to demonstrate how his trial counsel's failure to object to [the security officer's] testimony that Petitioner looked like he was on drugs at the time of the offense prejudiced him or affected the ultimate result at trial. The Court clearly weighed the evidence presented at trial and made detailed findings of fact and conclusions of law that fail to demonstrate any such prejudice occurred. Altogether, Petitioner has not shown that he was prejudiced by counsel's performance during the plea, trial, and sentencing phases of this criminal action.
On appeal, defendant advances one point, namely, "this matter must be remanded for an evidentiary hearing because a prima facie case of ineffective assistance of counsel was established." We disagree and affirm the denial of defendant's petition without an evidentiary hearing for the reasons set forth in Judge John Harper's March 4, 2008 written opinion. We do, however, briefly comment upon defendant's claim that his counsel was ineffective because he advised defendant that since he is "a person of color," he "shouldn't take a trial in [Morris] County."
The question of whether such advice constituted ineffective assistance of counsel is certainly an appropriate issue for post-conviction relief and is not barred under Rule 3:22-4. Whether, as defendant claims on appeal, he was entitled to an evidentiary hearing, requires a determination of whether he established the requisite prima facie case for post-conviction relief. See State v. Marshall, 148 N.J. 89, 158 (Marshall III), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997) (citing State v. Preciose, 129 N.J. 451, 462 (1992)). We agree with the PCR judge that defendant failed to establish the requisite prima facie case.
A defendant seeking post-conviction relief based upon ineffective assistance of counsel must satisfy the two-pronged test articulated under Strickland, supra, 455 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and made applicable to New Jersey pursuant State v. Fritz, 105 N.J. 42, 58 (1987). Specifically, a defendant must first show that an act or omission by counsel was deficient, i.e., counsel performed with errors so serious as to deprive defendant of the right to counsel protected by the Sixth Amendment of the Constitution. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). In other words, counsel's representation ...