July 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC BULLA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-03-0260.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2009
Before Judges Axelrad and Messano.
Defendant Eric Bulla appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following issues for our consideration:
[DEFENDANT] IS ENTITLED TO RELIEF OR A HEARING ON HIS CLAIM THAT HIS TRIAL AND APPELLATE ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
THE CLAIMS IN [DEFENDANT'S] PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a)(2); first-degree carjacking, N.J.S.A. 2C:15-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and second-degree eluding, N.J.S.A. 2C:29-2(b). Following trial, defendant pled guilty to second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(6)(1), a count that was severed from the indictment pre-trial. He was sentenced to an aggregate prison term of thirty-one years, three months.
We affirmed his conviction on direct appeal, though we remanded the matter to the trial court for reconsideration of defendant's sentence in light of State v. Natale, 184 N.J. 458 (2005). State v. Bulla, A-1224-04 (App. Div. December 19, 2005). On remand, defendant's sentence was modified to reflect an aggregate term of thirty years, including, on the twenty-two year carjacking sentence, an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's petition for certification was denied. State v. Bulla, 186 N.J. 366 (2006).
Defendant filed his pro se petition for PCR on July 27, 2006. It contained no factual basis for the requested relief. After counsel was assigned, defendant filed a certification in support of the petition, dated March 2, 2007. He claimed his trial counsel "never came to visit [him] while [he] was in jail," "did not review the discovery with [him]," and failed to present "a coherent defense plan[.]" He named three people, claiming he supplied their names to trial counsel and they "would have provided a basis for [his] defense." Defendant further alleged trial counsel failed to "challenge or object" when the State acknowledged that a gun seized during law enforcement's chase and apprehension of defendant was "destroyed" before trial. He also claimed appellate counsel provided ineffective assistance because "he did not have sufficient contact with [him] to make use of [his] knowledge of the matter[.]"
Defendant filed another certification on July 6, 2007 in which he claimed the State failed to prove all the elements of illegal possession of a firearm because it never proved he lacked the required permit. On August 30, 2007, defendant filed yet a third certification in which he claimed the State had violated his "constitutional rights" by indicting him for terroristic threats and aggravated assault against one of the victims, Amabel Aquino, without producing any evidence before the grand jury. He claimed trial counsel and appellate counsel provided ineffective assistance by not moving to dismiss the indictment.
In addition to the brief filed by designated counsel, defendant filed a pro se brief in which he alleged prosecutorial misconduct in destroying the handgun and in summation, error by the trial judge for failing to instruct the jury on identification, and error in the jury instructions on robbery.
On September 13, 2007, a hearing was held on defendant's PCR petition before Judge Salem V. Ahto, who was also the trial judge. Judge Ahto concluded that the State had failed to produce any proof before the grand jury regarding defendant's alleged assault upon Aquino. He vacated defendant's conviction on that count.*fn1 The judge then addressed each and every claim made by defendant and denied his request for a new trial. On September 14, 2007, Judge Ahto entered the order under review that memorialized his oral decision.
Before us, defendant argues that he presented sufficient facts to warrant an evidentiary hearing on his claim of ineffective assistance of trial and appellate counsel in two respects. First, he claims trial counsel failed to object to the judge's deficient charge regarding the necessary elements of unlawful possession of a weapon, specifically that the State must prove beyond a reasonable doubt that defendant lacked the requisite handgun permit. Second, he claims he presented sufficient proof that trial counsel failed to properly prepare the case, in particular, by not discussing the case with him or interviewing the three witnesses named in his certification. In his second point, in a single sentence and without any legal argument as to alleged error by Judge Ahto, defendant simply reiterates by reference the points raised below.
The analytic framework that controls our review is well known. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2009); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz test. Preciose, supra, 129 N.J. at 463. We apply the same standard to defendant's claims of ineffective assistance of appellate counsel that we do to the claims asserted against trial counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987)), certif. denied, 194 N.J. 444 (2008).
Regarding defendant's claims that trial counsel was ineffective for not objecting to the allegedly deficient jury charge, and appellate counsel was ineffective for not raising the issue on direct appeal, Judge Ahto reviewed the actual charge as given. He noted that the jury was told on three separate occasions that the State must prove beyond a reasonable doubt that defendant did not possess a permit for the handgun. Judge Ahto further found that given the evidence, including defendant's admission that he had gotten the gun from a friend, the summations of counsel, and the charge, the jury fully understood the law, and we agree. Since trial counsel was not ineffective for failing to object to the charge, it follows that appellate counsel was not ineffective for failing to raise a losing argument on appeal.
As to the second claim regarding the lack of preparation and the failure to interview witnesses, Judge Ahto noted that defendant "provided" "no specifics." He further observed that defendant "d[id] not . . . tell [him] what those witnesses could say or would say and how, if at all, it would have affected the result in this matter."
We concur with Judge Ahto that defendant failed to present a prima facie case for relief in this regard. His allegations were nothing more than "bald assertions" of trial counsel's deficiencies. Cummings, supra, 321 N.J. Super. at 170-71. He never explained how the three witnesses named would have "provided a basis for [his] defense." Compare State v. Allen, 398 N.J. Super. 247, 258-59 (App. Div. 2008) (where affidavit of witness who did not testify at trial, filed in support of PCR petition alleging newly-discovered evidence, warranted an evidentiary hearing). The judge properly denied defendant's petition without an evidentiary hearing.
Lastly, Judge Ahto addressed all of defendant's other arguments. He found defendant's claim about prosecutorial misconduct in the pre-trial destruction of the handgun was already addressed on direct appellate review and was thus procedurally-barred. See R. 3:22-5 (providing that a "prior adjudication upon the merits of any ground for relief is conclusive"). Regarding defendant's claim of error in failing to charge identification, Judge Ahto correctly noted this issue was procedurally-barred because it could have been raised on direct appeal, but was not. See R. 3:22-4 (providing that "[a]ny ground for relief not raised in . . . any appeal . . . is barred from assertion"). The same was true regarding defendant's claim of prosecutorial misconduct in summation, and the alleged deficiency in the robbery instructions. We concur with all these rulings.
Judge Ahto, nevertheless, considered the merits of defendant's claims and denied all of them. To the extent those issues are raised again before us, we find the arguments to lack sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).