On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-06-0880.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010 - Decided Before Judges Sapp-Peterson and Simonelli.
Defendant appeals the denial of his motion for post-conviction relief (PCR). We affirm.
Defendant's conviction arose out of shooting incidents occurring on October 16, 2000 that caused life-threatening injuries to twin brothers, Dion and Antoin*fn1 Jackson.*fn2 The shootings followed an argument between defendant and Antoin concerning the latter's girlfriend. The argument started in a residence and then continued outside. Defendant retrieved a handgun from his vehicle and shot Dion in the chest and Antoin in the stomach. Both victims were treated for life-threatening injuries at the Jersey Shore Medical Center.
The jury convicted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), and of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The jury also found that defendant used a firearm in both offenses. The court imposed an aggregate thirty-year custodial sentence and a fifteen-year period of parole ineligibility. Defendant appealed but subsequently withdrew, and we entered an order dismissing his appeal.
Defendant filed a pro se PCR petition in 2007. On June 24, 2009, the PCR court conducted oral argument and, by order dated July 14, 2009, denied defendant's petition. However, because the original sentence imposed did not include a period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1(a), the PCR judge resentenced defendant to the same sentence, but included an eighty-five percent NERA period of parole ineligibility.
In denying relief to defendant, the PCR court found that defendant failed to show that trial counsel was deficient or that he was prejudiced as a result of trial counsel's representation. The judge rejected defendant's arguments that trial counsel was ineffective because (1) he failed to present a diminished capacity defense, (2) he presented conflicting theories, and (3) he failed to prepare properly for trial. The present appeal followed.
On appeal, defendant raises the following points:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY APPROPRIATE PRIMA FACIE CRITERIA FOR [RULE] 3:22.
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S DECISION TO PRESENT A SELF-DEFENSE CASE INSTEAD OF THE DEFENSE OF DIMINISHED CAPACITY SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED . . . DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...