On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-11-3372.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2010
Before Judges Axelrad and Sapp-Peterson.
In this appeal from a denial of post-conviction relief (PCR), defendant argues that the PCR judge erred in failing to conduct an evidentiary hearing to explore his claims of ineffective assistance of counsel and prosecutorial misconduct.
He also claims that his Natale*fn1 re-sentence was excessive. None of these claims have any merit and we therefore affirm.
Defendant was indicted for second-degree burglary, N.J.S.A. 2C:18-2 (Count One), and first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Two). At trial the State presented the following evidence. The victim observed defendant in her vehicle as she drove past in another vehicle. When she jumped out of the other car to apparently confront defendant she saw him attempting to crawl out of the back window with a bag of her belongings. She chased after him and when she caught up with him, the two of them engaged in a tussle, later joined by her boyfriend with whom the victim had been traveling in the other car. Together they restrained defendant until police arrived.
The jury convicted defendant of the burglary charge and the lesser-included offense of second-degree robbery. Defendant was sentenced to an aggregate fifteen-year custodial sentence along with an eighty-five percent No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, period of parole ineligibility. We affirmed his conviction and sentence. State v. Scott, No. A.-3924-02T4 (App. Div. May 6, 2004) (slip op. at 8-9), certif. denied, 190 N.J. 395 (2007).
On May 25, 2007, defendant filed a pro se PCR petition. Thereafter, the court appointed counsel to represent him, who in turn filed a brief on defendant's behalf. The court conducted oral argument on the petition on February 20, 2008 and denied relief to defendant. The court found that there was no basis in the record to support defendant's claim of ineffective assistance of counsel. Specifically, the court noted that there was no documented evidence in the record that defendant suffered from Tourette's Syndrome, which may have explained his conduct during jury selection.*fn2 The court also noted that while arguably a trespassing charge could have been given, the fact that the jury convicted defendant of burglary and second-degree robbery meant that the jury did not have to consider the lesser-included offense of trespassing. Further, the court rejected the claim of ineffective assistance of counsel for not raising judicial error in admitting an out-of-court statement defendant purportedly made to one of the arresting officers that he had only been sleeping in the victim's car. The court noted that trial counsel unsuccessfully raised that issue and that therefore an ineffectiveness claim could only be attributed to appellate counsel. The court surmised that its ruling would have been upheld on appeal and therefore the failure of appellate counsel to raise this issue was also not a basis for PCR.
On May 9, 2008, the court conducted a re-evaluation of defendant's sentence pursuant to State v. Natale, 184 N.J. 458 (2005) and State v. Pierce, 188 N.J. 155 (2006) and concluded that the original sentence imposed should not be changed. The present appeal followed.
On appeal, defendant contends that we should reverse the denial of his PCR petition and remand for an evidentiary hearing. We disagree.
To establish a deprivation of the right to the effective assistance of counsel under the Sixth Amendment, a defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). When reviewing ineffective assistance claims, we apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
In State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), we held that "bald assertions" are not a sufficient basis to establish ineffective assistance of counsel. A defendant must do more:
He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the ...