October 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENHART BAKKA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-05-0868.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2009
Before Judges Skillman and Gilroy.
A jury found defendant guilty of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4; vehicular homicide, in violation of N.J.S.A. 2C:11-5; and operation of an unlawfully taken motor vehicle in a manner likely to create a risk of injury, in violation of N.J.S.A. 2C:20-10(c). The trial court sentenced defendant to an extended term of life imprisonment, with twenty-five years of parole ineligibility, for aggravated manslaughter, and a concurrent five-year term, with two and one-half years of parole ineligibility, for operation of unlawfully taken motor vehicle in a manner likely to create a risk of injury. The court merged defendant's conviction for vehicular homicide with his conviction for aggravated manslaughter.
On appeal, we reversed defendant's convictions in a reported opinion on the ground that the trial court committed reversible error in allowing the State to introduce evidence that he was driving on the revoked list at the time of the motor vehicle accident upon which his convictions were based. State v. Bakka, 350 N.J. Super. 43, 51-59 (App. Div. 2002).
On appeal from our decision, the Supreme Court reversed and reinstated defendant's conviction on the ground that the admission of evidence defendant was driving on the revoked list at the time of the fatal accident was harmless error. State v. Bakka, 176 N.J. 533, 547-51 (2003). The Court remanded the case to us to determine whether the trial court improperly imposed an extended term sentence or whether defendant's sentence was excessive. Id. at 551.
On that remand, we concluded in an unreported opinion that the trial court abused its discretion in imposing an extended term sentence and remanded the case for imposition of an ordinary term of imprisonment. State v. Bakka, No. A-4146-99 (Nov. 26, 2003).
The trial court subsequently resentenced defendant to a thirty-year term of imprisonment, with fifteen years of parole ineligibility, for aggravated manslaughter, and a concurrent five-year term, with two and one-half years of parole ineligibility, for operation of an unlawfully taken motor vehicle in a manner likely to create a risk of injury. On defendant's appeal from this sentence, we again remanded for resentencing, this time for the imposition of sentence in conformity with State v. Natale, 184 N.J. 458 (2005). State v. Bakka, A-6399-03 (Feb. 8, 2006). On this further remand, the trial court reimposed the same sentence as on the initial remand for resentencing. We affirmed this sentence in an appeal heard on an excess sentence calendar. State v. Bakka, A-6399-03 (Aug. 2, 2006).
On or about October 26, 2006, defendant filed a petition for post-conviction relief, which was based primarily on allegations of ineffective assistance of trial counsel. The trial court denied the petition for the reasons set forth in an oral opinion delivered on September 28, 2007.
On the appeal from the denial of his petition, defendant presents the following arguments:
BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL, THE MATTER SHOULD BE REMANDED.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT'S PETITION SHOULD NOT BE DISMISSED BASED ON THE PROCEDURAL BARS IN R. 3:22-3 AND R. 3:22-4.
We affirm the rejection of defendant's claims of ineffective assistance of his trial counsel substantially for the reasons set forth in Judge Chaiet's September 28, 2007 oral opinion. We agree with Judge Chaiet's conclusion that the decision whether to call defendant's accident reconstruction expert, Dennis Andrews, was a matter of trial strategy regarding which defendant failed to make a showing of ineffective assistance of counsel. Defendant failed to present any evidence that his trial counsel could have obtained another expert to testify that defendant was not the driver of the car involved in the fatal accident or that there was some doubt whether he was the driver. Nor did defendant present any evidence that there was a fact witness available that trial counsel failed to call who could have testified that defendant was not the driver.
Defendant's claims of ineffectiveness of the counsel who represented him on his petition for post-conviction relief are clearly without merit. R. 2:11-3(e)(2). There is no evidence that counsel could have obtained certifications or other evidence to support defendant's allegations regarding the representation provided by his trial counsel.
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