On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-1367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Wefing.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a; second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2); and third-degree maintaining a fortified structure, N.J.S.A. 2C:35-4.1. On the day of trial, he entered an "open" plea of guilty to second-degree possession of cocaine with intent to distribute. As part of the plea proceedings, he was informed that the State intended to seek a mandatory extended-term sentence, N.J.S.A. 2C:43-6f. The trial court sentenced defendant to eighteen years in prison, with a nine-year period of parole ineligibility. Defendant appealed his conviction and sentence. We affirmed his conviction but remanded for re-sentencing in light of State v. Thomas, 188 N.J. 137 (2006).*fn1
State v. Ukawabutu, No. A-2799-04T4 (App. Div. Oct. 27, 2006). The Supreme Court denied defendant's petition for certification. 189 N.J. 650 (2007). Defendant thereafter filed his petition seeking post-conviction relief. He raises one issue on appeal:
THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.
We reject this contention and affirm.
Defendant was arrested in Atlantic City in connection with the execution of a no-knock search warrant that had been obtained upon the basis of information supplied by several confidential informants. The warrant was executed by seventeen members of the Atlantic City Police Department; defendant was on the premises at the time the warrant was executed. A substantial quantity of narcotics and related paraphernalia was recovered. During the search of the premises, the police came upon two alligators in the apartment, one approximately four and one-half feet in length. The police had to summon help to recover the alligators so they could proceed safely. Defendant filed a motion to suppress, which the trial court denied after conducting a hearing.
The basis for defendant's post-conviction relief petition is his assertion that his trial attorney was ineffective for not pursuing discovery with respect to the individual officers who were involved in executing the search warrant. He notes that only one report was prepared following the search and that the author of that report must have received information from other officers with respect to details of the search. He does not contend that the State failed to produce reports in its possession but that further exploration could have led to discrepancies which might have affected the outcome.
We note briefly the standard which governs our analysis of this claim. To prevail upon a claim of ineffective assistance of counsel, a defendant must establish two elements: that the representation he received fell below the norm of criminal practice, and that this ineffectiveness prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). The mere filing of a petition for post-conviction relief does not warrant a trial court conducting a plenary hearing on the issue; defendant must establish a prima facie case before such a hearing is appropriate.
Here, defendant's claims rest upon speculation and hypothesis, not supported by any relevant facts. We affirm the order denying defendant's petition for post-conviction relief substantially for the reasons stated by ...