On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-12-1664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 20, 2010 -- Decided: Before Judges Grall and C.L. Miniman.
Defendant Andrew T. Wyble appeals from the denial of his petition for post-conviction relief (PCR) in connection with his August 4, 2006, convictions for two first-degree armed robberies to which he pled guilty and is serving two concurrent eleven-year terms subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He raises only one issue on appeal:
THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT ANEVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE[U.S. CONST.] AMENDS. VI, XIV; [N.J. CONST.]ART. I, PAR. 10.
We conclude that the PCR judge did not err in denying defendant's PCR petition without an evidentiary hearing. In granting or denying an evidentiary hearing, "courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Preciose, 129 N.J. 451, 462-63 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Id. at 462. However, "[i]f the [trial] court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
To establish a prima facie claim of ineffective assistance of counsel, the defendant must meet the standard promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in New Jersey under State v. Fritz, 105 N.J. 42, 57-58 (1987). Whether the defendant's constitutional right to counsel has been abridged is "measured by applying a 'simple, two-part test.'" State v. O'Neal, 190 N.J. 601, 629 (2007) (Rivera-Soto, J., concurring) (quoting Fritz, supra, 105 N.J. at52).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
To meet the first prong of the Strickland/Fritz test, a convicted defendant must identify acts or omissions by the trial counsel that were not "the result of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). A court analyzing a defendant's argument under this first prong "must give great deference to counsel's performance and must strongly presume that the attorney's conduct constituted reasonable professional assistance." Petrozelli, supra, 351 N.J. Super. at 21-22 (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. Petrozelli, supra, 351 N.J. Super. at 22.
If the court finds that counsel's errors were significant enough to meet the first prong of Strickland/Fritz, the defendant must then demonstrate that the error was "prejudicial to the defense." Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The burden of proof rests "squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). Finally,
In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.]
We begin with the second prong to determine whether defendant has suffered prejudice as a result of the deficiencies he has alleged. Before we can do so, we must briefly summarize the identification evidence in this case because defendant's claims hinge on that evidence.
In the early morning hours of August 26, 2005, two armed robberies were committed in Wanaque. The first took place at 2:30 a.m. at a local bakery. Two men entered the bakery, one of whom had a gun. There were several employees in the bakery at the time, including Jan Orlicki and Alegandro Ornelas, the victims. Orlicki described the man "with the gun as wearing a checkered handkerchief covering his face below his eyes and [having] light[-]colored hair." The gun was black and about nine inches long. In his typed statement prepared that day at 2:10 p.m., Orlicki stated that the gunman was shorter than Orlicki, although the police record does not disclose Orlicki's height. The gunman was skinny and young, and he had "[d]ark hair, definitely not light hair," contradicting his earlier statement.
Ornelas said the gunman had a scarf over his face and was American, tall, and white. Ornelas apparently did not give a typed statement to the police. Neither Orlicki nor Ornelas reported the crime to the police until their boss did so at 12:30 p.m.
Based on Ornelas's description of the other robber, the police were able to identify him as T.L., a juvenile. On the date of the robbery, they brought him to the police station, and he gave a statement at 8:59 p.m. He admitted participating in a robbery at the bakery earlier that day and said that his accomplice was named "Wack," whom he had initially met at the "clock tower." He did not know his full name or where he lived. He said Wack was as tall as one of the police officers, had "brownish hair a little lighter, [and was] white[ and] skinny." Wack was wearing a dark hoodie, dark pants, black sneakers, and a red flag over his face. Wack had a black BB gun that looked like an automatic weapon. T.L., Wack and others were at the home of Ethan Dahl before the robbery. T.L. described the robbery and said that, when it was over, they "ran down the street to the [G]olden [A]ge [W]oods and burned the bandana and ...