October 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEBORAH PHILLIPS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-04-0517.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Rodríguez and Reisner.
Defendant Deborah Phillips appeals from a trial court order dated February 25, 2008 denying her petition for post-conviction relief (PCR). We affirm.
The facts are set forth at length in Judge Almeida's thorough written opinion dated February 25, 2008, and need not be repeated here. In brief, defendant went out with three other women for a social evening. On the way home, despite the pleas of her friends, defendant insisted on driving while extremely intoxicated. She lost control of the car, which hit a utility pole, killing two of her companions and injuring a third woman. Defendant gave a statement to the police in which she admitted drinking but claimed she did not remember driving on the night of the accident. However, at the trial, the surviving passenger testified that defendant was the driver. The State also produced expert testimony establishing that defendant had been driving at the time of the accident.
Defendant was convicted of two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5a, and third-degree assault by auto, N.J.S.A. 2C:12-1c(2). She was sentenced to two consecutive ten-year terms subject to the No Early Release Act, and a consecutive eighteen-month sentence. We affirmed her conviction and sentence on direct appeal. State v. Phillips, No. A-0668-03 (App. Div. Feb. 8, 2005), certif. denied, 183 N.J. 585 (2005).
In a detailed twenty-four page written opinion, Judge Almeida rejected defendant's PCR petition. He determined that the majority of defendant's claims were barred, because they had been raised and rejected on her direct appeal or because they could have been raised on direct appeal. R. 3:22-4; R. 3:22-5. The judge further concluded that defendant's former trial counsel was not ineffective for failing to present expert witnesses. The attorney had submitted a certification attesting that he consulted an accident reconstruction expert, but the expert advised him that he could not give a favorable opinion for the defense. The attorney also consulted a DNA/hair analysis expert, who likewise was unable to provide an opinion favorable to the defense.
The judge rejected defendant's claim that her counsel failed to relay the State's plea offers. Based on her former attorney's certification, and his own recollection of the case, Judge Almeida found that defendant adamantly refused to consider accepting a plea offer. He also found no ineffective assistance in counsel's failure to file an array of pre-trial motions which the judge concluded would have been baseless. Judge Almeida concluded that a proposed witness, Mindy Garcia, would not have helped defendant's case, since Garcia saw defendant lying next to the driver's side door. He also rejected defendant's challenge to her sentence based on State v. Natale, 184 N.J. 458 (2005).
On this appeal, defendant raises the following points for our consideration:
POINT I: THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON [HER] CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: DEFENDANT WAS DEPRIVED OF [HER]
RIGHT TO COUNSEL WHEN [HER] POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT [HER].
In a supplemental pro se brief, defendant raises the following additional points:
POINT I: TRIAL COURT ABUSED ITS DISCRETION DURING THE POST-CONVICTION HEARING; DEFENDANT'S CLAIMS SHOULD NOT BE BARRED ON PROCEDURAL GROUNDS.
POINT II: DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL COULD NOT HAVE BEEN RAISED PREVIOUSLY AND AS A RESULT SHOULD NOT BE BARRED AND WARRANTS AN EVIDENTIARY HEARING.
A. Trial Counsel Was Ineffective Due To His Failure To Engage An Expert Witness In The Field Of Accident Reconstruction/Kinematics.
B. Trial Counsel Was Ineffective Due To His Failure To Engage An Expert Witness In The Field Of Forensics To Rebut State's Witness.
C. Trial Counsel Was Ineffective Due To His Failure To Have The Skin Analyzed Or Compared To The Other Three Occupants Of The Vehicle.
POINT III: ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE. DEFENDANT'S SENTENCE WAS BASED ON THE PRESUMPTIVE. COUNSEL WAS  CONSTITUTIONALLY [IN]EFFECTIVE DURING THE SENTENCING.
POINT IV: THE CUMULATIVE ERRORS OF COUNSEL CAUSED PREJUDICE TO THE DEFENDANT DENYING HER THE EFFECTIVE ASSISTANCE OF COUNSEL, AND A MEANINGFUL AND VIABLE DEFENSE DURING PETITION FOR POST-CONVICTION RELIEF.
Having reviewed the record, we conclude that all of defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated in Judge Almeida's cogent written opinion. We add the following comments.
To prevail on a claim of ineffective assistance of counsel, defendant must show that her counsel's performance was deficient and that those deficiencies materially contributed to her conviction. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Even viewing the facts in a light most favorable to defendant, she did not present a prima facie case of ineffective assistance of counsel and was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We also find no evidence in this record that defendant's trial-level PCR counsel provided ineffective assistance.
Finally, defendant's direct appeals were concluded before Natale was decided. As the Supreme Court indicated, Natale only has pipeline retroactivity. Natale, supra, 184 N.J. at 494. Therefore, Natale's sentencing principles cannot be invoked in defendant's PCR petition.
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