December 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY C. BAKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 01-06-0758, 01-06-0759, 01-06-0479 and 01-06-0474.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 27, 2010
Before Judges Cuff and Simonelli.
Defendant Jeffrey C. Baker appeals from the denial of his petition for post-conviction relief (PCR). He is serving a forty-four year term of imprisonment with a twenty-one year period of parole ineligibility following his conviction of robbery, possession of a weapon for an unlawful purpose, unlawful possession of a weapon, aggravated assault, and certain persons not to have a weapon.*fn1
Defendant filed a petition for PCR. Following an evidentiary hearing, Judge Barisonek denied the petition.
On appeal, defendant raises the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT TRIAL AND THE RESULTING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
(A) TRIAL COUNSEL'S FAILURE TO REQUEST ANCILLARY INVESTIGATIVE SERVICES FROM THE PUBLIC DEFENDER SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST.
(B) UNDER THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST, INSTEAD OF APPLYING APPROPRIATE R. 3:22 CRITERIA FOR PREJUDICE, THE COURT APPLIED AN IMPROPER "OUTCOME DETERMINATIVE" STANDARD.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO ANCILLARY SERVICES AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED [IN] HIS PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
In a pro se supplemental brief, defendant raises the following arguments:
THE COURT'S RULING DENYING POST-CONVICTION RELIEF WAS NOT SUPPORTED BY SUFFICIENT AND CREDIBLE EVIDENCE IN THE RECORD WHERE THE DEFENDANT HAD CLEARLY ESTABLISHED THAT HE WAS DEPRIVED OF HIS SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION.
(A) THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION VACATED BECAUSE COUNSEL'S FAILURE TO INVESTIGATE DEFENSE WITNESSES WHO WOULD HAVE DETRACTED FROM STATE'S CASE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PRO SE PETITION FOR POST-CONVICTION AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST CONVICTION RELIEF.
Defendant's petition for PCR is founded on his contention that trial counsel was ineffective because he failed to request ancillary services to investigate witnesses who could have been called in his defense. Defendant asserts that one of these witnesses would have testified that defendant did not take anything by force or violence but simply removed drugs from a table and left the apartment. This contention sharply contrasts with defendant's trial strategy that did not dispute that someone removed drugs from the table at gunpoint, but he was not the person who did so.
Judge Barisonek conducted an evidentiary hearing over two days at which defendant, Shelley Logan, Sharonda Williams, James Friedman, and Thomas Monarque testified. Freidman served as defendant's trial counsel; Monarque is an investigator employed by defendant's PCR counsel. At the conclusion of the hearing, Judge Barisonek rendered an oral opinion.
In his June 4, 2008 opinion, Judge Barisonek addressed each claim of ineffective assistance of counsel, including a claim that defendant could not adequately evaluate a plea offer because trial counsel failed to advise him of the likely admissibility of the testimony of Brian McCloud, who encountered defendant on the street before the incident in the house. As to the admissibility of McCloud's testimony, the judge found that defendant has a "faulty memory." He noted the transcript clearly reveals that defendant was present when the admissibility of McCloud's testimony was discussed. Furthermore, the trial judge "specifically addressed [defendant] and informed him that the plea offer would be available to him for an additional day."
Judge Barisonek also found defendant did not establish that trial counsel's failure to investigate McCloud's testimony fell below the standard expected of competent counsel or caused any prejudice to defendant. He also rejected the claim that appellate counsel was ineffective for failing to pursue these issues on appeal.
Turning to the claim that trial counsel was ineffective for failing to call a person known as Shorty as a witness at trial, Judge Barisonek found that Shorty's testimony contradicted defendant's testimony at the evidentiary hearing and the testimony offered was not credible due to multiple inconsistencies.
Of greater significance, the judge found that defendant never informed trial counsel that he stole the drugs but did not use force or violence to do so. Therefore, defense counsel prepared a defense to a robbery charge and directed an investigation of witnesses to support defendant's claim that he was not the person who pointed a gun and took the drugs. Unfortunately, at the time of trial, these witnesses could not be located. Consistent with this strategy, defense counsel attempted to locate witnesses who would have provided evidence of an alibi for defendant. The judge found it "incredulous" that trial counsel would have commenced such an investigation if defendant had informed him that he was a thief not a robber.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for post-conviction relief:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . .;
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review. Preciose, supra, 129 N.J. at 460. See R. 3:22-4(a). The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).
There is a strong presumption that 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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
Here, the trial judge conducted a thorough evidentiary hearing. With the benefit of the trial record and the testimony of the various witnesses presented at the evidentiary hearing, Judge Barisonek addressed and rejected each claim presented by defendant. We have reviewed this record in its entirety and are satisfied that defendant has not established either prong of the Strickland/Fritz test. We affirm substantially for the reasons expressed by Judge Barisonek in his June 4, 2008 oral opinion.