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State v. Dove

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 4, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROY DOVE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-05-2358.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 19, 2010

Before Judges Rodríguez and Yannotti.

Defendant, Roy Dove, appeals pro se from his second petition for post-conviction relief (PCR). We affirm.

In April 1998, following a jury trial, defendant was convicted of first degree aggravated manslaughter, N.J.S.A. 2C:11-4; first degree felony murder, N.J.S.A. 2C:11-3(a)(3); first degree armed robbery, N.J.S.A. 2C:15-1; fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). The judge denied defendant's motion for a new trial and, after appropriate merger of convictions, imposed an extended term of life imprisonment without parole, pursuant to N.J.S.A. 2C:43-7.1, consecutive to an eighteen-month term. On direct appeal, we affirmed defendant's conviction and sentence, but remanded the matter to amend the judgment of conviction to merge the conviction for unlawful possession of a knife with the conviction for possession of a knife for an unlawful purpose. State v. Roy Dove, No. A-6522-98T4 (App. Div. October 2, 2000), certif. denied, 167 N.J. 88 (2001).

In March 2001, defendant filed pro se his first PCR petition, raising a claim of ineffective assistance of trial counsel. Counsel was assigned to represent defendant on the petition. Judge Thomas R. Vena denied the petition and defendant's request for an evidentiary hearing. We affirmed. State v. Roy Dove, A-0567-04T4 (App. Div. January 30, 2006), certif. denied, 186 N.J. 604 (2006).

Defendant filed a petition for a writ of habeas corpus with the United States District Court for the District of New Jersey.

Judge Faith S. Hochberg denied the petition on August 21, 2007, and ordered that no certificate of appealability will be issued.

In December 2007, more than nine years after the conviction, defendant filed pro se this second PCR petition. The petition alleged trial counsel was ineffective for: (1) "failing to request that the trial judge define the elements of criminal attempt" and (2) "failing to object when the court clerk erroneously asked the jury foreman 'how do you find defendant as to count three attempted robbery while armed.'" Defendant also alleged ineffective assistance of appellate counsel for not raising the jury charge issue. Judge Harold W. Fullilove denied defendant's petition based on the five-year time bar set by Rule 3:22-12 and the procedural bar set by Rule 3:22-4, grounds not raised on direct appeal.

On appeal, defendant contends:

BECAUSE TRIAL [COUNSEL] PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY THE COURT SHOULD GRANT HIS MOTION FOR [PCR]. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING.

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THAT THE TRIAL JUDGE DEFINE THE ELEMENTS OF A CRIMINAL ATTEMPT IN THE COURT'S INSTRUCTION TO THE JURY ON COUNT THREE ARMED-ROBBERY.

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT WHEN THE COURT CLERK ERRONEOUSLY ASKED THE JURY FOREMAN HOW DO YOU FIND THE DEFENDANT "AS TO COUNT THREE ATTEMPT[ED] ROBBERY WHILE ARMED."

APPELLANT COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE TRIAL JUDGE FAILED TO DEFINE THE ELEMENTS OF A CRIMINAL ATTEMPT IN THE COURT'S INSTRUCTION TO THE JURY ON COUNT THREE FOR ARMED-ROBBERY RENDERED THE DEFENDANT'S CONVICTION ILLEGAL BECAUSE THERE WAS NO JURY FINDING ON THE ELEMENTS OF ATTEMPT. [SIC]

We agree with Judge Fullilove that this second PCR petition is barred by operation of Rules 3:22-12 and 3:22-4. Moreover, defendant has not shown either prong of the Strickland v. Washington*fn1 standard for determining ineffective assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz.*fn2

As for the argument that the judge should have granted an evidentiary hearing, we disagree. Defendant has failed to meet the threshold for an evidentiary hearing. When issues of defective performance of counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is to hold a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992). Here, there has been no such showing. Moreover, the alleged disputed performance by counsel can be scrutinized based on the trial record.

We also reject this last contention:

[PCR] COURT ERRED WHEN IT DENIED [PCR] BECAUSE IT WAS THE SECOND PETITION AND [THEN] THE COURT CONCLUDED THERE WAS NO GOOD CAUSE ENTITLING THE ASSIGNMENT OF COUNSEL ON THE APPLICATION. [SIC]

We disagree and affirm because this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The petition is without merit.

Affirmed.


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