On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 03-06-2278.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 12, 2011
Before Judges Axelrad and J. N. Harris.
Defendant Johnnie Parker appeals from the October 15, 2008 order of the Law Division denying his first petition for post-conviction relief (PCR) without oral argument or an evidentiary hearing. He alleged ineffective assistance of trial counsel in pretrial investigation and representation and at sentencing. We affirm.
In December 2002, defendant, then seventeen years of age, was charged with the murder of Demetreas Fletcher. By order of March 24, 2003, the court granted the State's waiver motion and transferred the matter to the Law Division for prosecution as an adult. N.J.S.A. 2A:4A-26. The Camden County Grand Jury charged defendant and his co-defendant, Tremain Paige, in June 2003 under Indictment No. 03-06-2278 with committing the following offenses: murder, conspiracy to commit murder, two weapons offenses, hindering apprehension or prosecution, tampering with or fabricating physical evidence, and endangering an injured victim. Pursuant to a negotiated agreement, defendant pled guilty on October 6, 2003, to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), downgraded from murder.
On November 21, 2003, the court sentenced defendant pursuant to the plea arrangement to twenty-five years imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant did not file a direct appeal.
In October 2007, defendant filed this PCR petition, which was denied by the Law Division judge on the papers in an October 15, 2008 written opinion and order of that date. In a pro se submission and that of PCR counsel, defendant asserted ineffective assistance of trial counsel in failing to: (1) raise duress as an affirmative defense; (2) argue at sentencing mitigating factors twelve (cooperation) and thirteen (influence of an older person), N.J.S.A. 2C:44-1b(12), (13); and (3) adequately investigate his case. Defendant sought an evidentiary hearing.
The PCR judge addressed and rejected each of defendant's ineffective assistance of trial counsel allegations as without substantive merit, and provided a detailed explanation as to why none of the issues were sufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced the defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). See also State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey); State v. Preciose, l29 N.J. 451, 462-63 (l992) (To establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).
More specifically, the judge found defendant failed to set forth a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. He found defendant, for the most part, relied "on nothing more than naked averments" to support his claims. The judge further found defendant presented nothing to show that raising a duress defense would have affected the outcome of his case given that defendant pled guilty to aggravated manslaughter as amended from murder as part of his negotiated agreement. Thus, a successful duress defense would have achieved the same result as defendant's plea. See N.J.S.A. 2C:2-9b (stating that "[i]n a prosecution for murder, the [duress] defense is only available to reduce the degree of the crime to manslaughter"). Additionally, the judge found defendant failed to satisfy the prejudice prong as to sentencing, concluding defendant provided no evidence tending to prove that the court would have imposed a lesser sentence than negotiated if either or both the newly-asserted mitigating factors were presented. This appeal ensued.
Defendant essentially raises the same arguments on appeal through counsel, asserting:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT DENIED THE DEFENDANT HIS RIGHT TO A RUE "HEARING"
BY NOT AFFORDING PCR COUNSEL THE OPPORTUNITY FOR ORAL ARGUMENT WITHOUT SECURING FROM PCR COUNSEL A ...