On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-06-2224.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 17, 2010
Before Judges Axelrad and Espinosa.
Defendant William Beam appeals from the February 20, 2008 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. He alleged, in part, ineffective assistance of trial counsel in performing inadequate pretrial investigation; failing to file a motion for a Wade*fn1 hearing; failing to object to the jury charge on unlawful purpose; and failing to argue mitigating factors at sentencing; and ineffective assistance of appellate counsel for failing to raise these issues on appeal. We affirm.
After a juvenile waiver proceeding, defendant was charged with and convicted by a jury of second-degree conspiracy to commit murder and robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3a(1) and (2), and N.J.S.A. 2C:15-1 (count one); first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). On May 15, 1998, the trial judge merged count one with count four and count three with count two, and sentenced defendant to an aggregate term of fifty years imprisonment with a thirty year parole disqualifier.
Defendant filed a direct appeal, challenging his confession, the jury charge and verdict sheet, and his sentence. We affirmed defendant's conviction but remanded for merger of count six with count two and clarification of the sentence on count two. State v. Beam, No. A-1985-98T4 (App. Div. October 18, 2000). The Supreme Court denied defendant's petition for certification on February 15, 2001. State v. Beam, 167 N.J. 630 (2001). On May 25, 2001, the trial judge merged the convictions and re-sentenced defendant to an aggregate term of fifty years incarceration with a thirty-year parole disqualifier.
On October 22, 2003, defendant filed a notice of appeal challenging the amended sentence, which we affirmed by order. State v. Beam, No. A-1177-03T4 (App. Div. September 23, 2004). The Supreme Court denied defendant's petition for certification on January 26, 2005. State v. Beam, 182 N.J. 430 (2005).
This PCR petition ensued and was denied by Judge Michael Casale on February 8, 2008, following oral argument. In a pro se submission and that of PCR counsel, defendant claimed ineffective assistance of trial and appellate counsel and a variety of generalized cumulative trial errors and errors of trial counsel that he claimed denied him a fair trial. In a lengthy written opinion of February 20, 2008, the court addressed and rejected defendant's arguments. Judge Casale explained that defendant's petition was time-barred under Rule 3:22-12 as filed, without excusable neglect, more than five years after the rendition of the judgment or sentence that he sought to attack, and procedurally barred as either involving issues that could have been raised on direct appeal, R. 3:22-4, or that were raised and rejected on appeal.
Nevertheless, the judge addressed and rejected each of the allegations of trial error and ineffective assistance of trial and appellate counsel as without substantive merit and provided a detailed explanation as to why none of the issues were sufficient to warrant relief under the applicable law and two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (To establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). This appeal ensued.
Defendant essentially raises the same arguments on appeal, asserting:
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE ...