July 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHEKIA ATKINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 01-09-1716.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2010
Before Judges Lihotz and Ashrafi.
Defendant Chekia Atkins appeals from the dismissal, as procedurally deficient, of her petition for post-conviction relief (PCR). On appeal, defendant argues:
THE POST-CONVICTION RELIEF COURT SHOULD NOT HAVE REJECTED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONSIDERATION OF DEFENDANT'S CLAIMS.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON H[ER] PETITION FOR POST-CONVICTION RELIEF.
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT SHOULD BE GRANTED AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
As a preliminary matter, we note defendant is no longer incarcerated, having been released on October 4, 2008. Neither party reported that development to this court. Our information is derived from an internet posting by the New Jersey Department of Corrections. Nevertheless, we do not regard the arguments presented as moot because defendant remains on parole supervision and, if successful, her conviction would be vacated and she would be granted a new trial.
On June 27, 2002, defendant entered a guilty plea under Indictment No. 01-09-1716 to two counts of aggravated assault, N.J.S.A. 2C:12-1(b). The State agreed to dismiss the remaining weapons offenses charged in the indictment. Defendant was sentenced to two concurrent periods of seven years incarceration subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and three years of parole supervision. No direct appeal was filed.
Defendant filed a pro se petition for PCR alleging ineffective assistance of trial counsel. The court notified defendant's assigned counsel that the petition did not comply with Rule 3:22-8, as it failed to set forth the facts upon which the claim for relief was based. The court allowed an additional thirty days to file a modified PCR petition. When additional pleadings were not submitted, the court dismissed the petition, citing its failure to comply with Rules 3:22-8 and 1:6-2 (governing the form of motions).
On May 13, 2008, defendant filed a verified PCR petition, signed by counsel, which asserted trial counsel should have filed a suppression motion to bar the statements relied upon by police because they were "tainted." The stated support for this position was that the "victim's mother filed [the] police report not the victim herself" and the "victim's uncle," who was alleged to be a municipal police officer, "prepared [the] police report."
The court again sent notice that the PCR petition failed to comply with Rules 3:22-8 and 1:6-2. On November 3, 2008, the petition was dismissed. Defendant filed her appeal on April 27, 2009.*fn1
It is virtually axiomatic that, in order for defendant to obtain relief based on ineffective assistance grounds, she is obliged to show both the particular manner in which counsel's performance was deficient and that the deficiency prejudiced her right to a fair trial or the outcome of the plea process. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 209-10 (1985); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427, 435 (App. Div. 1986).
Substantive defects in a defendant's pleadings defeat any consideration of relief. Rule 3:22-8 requires "[t]he petition shall be verified by defendant and shall set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought." Here, the petition filed by counsel was not verified by defendant. State v. Martini, 144 N.J. 603, 625 (1996). Although the pro se petition was prepared and signed by defendant, it omits the factual basis for the broad assertions made. No certifications or other supporting documentation were forthcoming to provide the facts underpinning defendant's assertions. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (holding that defendant must assert facts that would have been revealed upon investigation, supported by certifications based on personal knowledge), certif. denied, 162 N.J. 199 (1999). Our review of the PCR petition reveals it is nothing more than defendant's "bald assertions that [s]he was denied the effective assistance of counsel." Ibid.
We apply the same Strickland/Fritz analysis to a claim of ineffective assistance of PCR counsel. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). Since defendant has not provided sufficient facts demonstrating legal error that may have affected the outcome of the trial to require review of trial counsel's performance, PCR counsel cannot be said to have been ineffective for the same reasons.
Following our consideration, we discern no abuse in discretion by the dismissal of defendant's PCR petition.