March 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOE BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-03-0501.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Cuff and Simonelli.
Defendant Joe Brown appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant pled guilty to first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a).
In accordance with the plea agreement, the judge sentenced defendant on the attempted murder charge to a thirteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent five-year term of imprisonment on the aggravated assault charge. The judge also imposed the appropriate penalty and assessments.
Defendant did not file a direct appeal. Instead, he filed a PCR petition contending, in part, that trial counsel was ineffective in failing to: (1) afford him the opportunity to testify before the grand jury to corroborate his alibi; (2) investigate and present a second alibi witness; and (3) seek dismissal of the indictment, which was allegedly based on hearsay and inaccurate and misleading information about the time the alleged incident took place and defendant's alibi.
Defendant also sought to withdraw his guilty plea contending he was forced to plead guilty because of counsel's deficiencies at the indictment stage. He also contended his sentence was excessive because the trial judge gave inappropriate weight to aggravating factors N.J.S.A. 2C:44-1a(3), (6), (8) and (9) and failed to apply mitigating factors N.J.S.A. 2C:44-1b (8) and (9). Defendant further claimed trial counsel was ineffective in failing to request all applicable mitigating factors.
In a written opinion, Judge Ronald Lee Reisner addressed each of defendant's arguments and denied the petition without an evidentiary hearing. The judge concluded defendant's unconditional guilty plea bars his challenge to trial counsel's failure to seek dismissal of the indictment. Addressing the merits, the judge concluded defendant would not have prevailed on a motion to dismiss the indictment because a grand jury may return an indictment based on hearsay evidence.
As to the alibi evidence, Judge Reisner concluded defendant suffered no prejudice because the State presented an alibi statement from his wife, which established defendant's whereabouts at the time of the crime. Thus, defendant's and the second alibi witness's testimony would not have introduced new alibi information.
Addressing defendant's challenge to his sentence, Judge Reisner found that defense counsel requested mitigating factors N.J.S.A. 2C:44-1b(9) and (11), and the record supported the trial judge's findings of aggravating factors 3, 6 and 9. The judge also found, and the State agreed, that the trial judge improperly double counted aggravating factor 8 because it already constituted an element of the offense. The judge concluded the trial judge failed to properly weigh the aggravating and mitigating factors. However, because defendant's sentence on both charges was within the permissible statutory ranges, the judge concluded the sentence was legal.
Finally, Judge Reisner concluded defendant failed to establish manifest injustice or that counsel's alleged deficiencies warranted withdrawal of his plea. This appeal followed.
On appeal, defendant raises the following arguments:
COUNSEL'S PERFORMANCE DURING THE INDICTMENT STAGE OF THE PROCEEDINGS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF
DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY PLEA BECAUSE IT WAS NOT MADE KNOWINGLY OR VOLUNTARILY
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE INDICTMENT IN ITS ENTIRETY
DEFENDANT RECEIVED AN ILLEGAL SENTENCE DUE TO IMPROPER WEIGHING OF AGGRAVATING AND MITIGATING FACTORS
REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF
Claims of ineffective assistance of counsel are well suited for post-conviction review. State v. Preciose, 129 N.J. 451, 460 (1992), see also R. 3:22-4(a)(2). 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 462. 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, a 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." 466 U.S. 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 694-95.
Adequate assistance of counsel must be measured by a standard of "'reasonable competence.'" Fritz, supra, 105 N.J. at 53 (citation omitted); see also 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).
Our review of the record satisfies us that defendant has not established either prong of the Strickland/Fritz test. Defendant provided no affidavit or certification from the second alibi witness, making it is impossible to discern whether that witness would have corroborated defendant's alibi. Also, the record reveals that counsel advised defendant of his right to testify before the grand jury and left the decision to him. Even if counsel usurped that decision, there was no prejudice to defendant because alibi evidence was presented to the grand jury.
Further, defendant's request to withdraw his guilty plea is based on his dissatisfaction with counsel's investigation of the second alibi witness; however, defendant did not establish a prima facie case that the second alibi witness would have provided evidence that would have altered the outcome of the grand jury proceeding or had the capacity to do so. Defendant's unsworn and unsupported assertions are insufficient to establish a colorable claim of innocence in light of his admission of guilt in open court. See State v. Mustaro, 411 N.J. Super. 91, 105 (App. Div. 2009).
Finally, defendant's sentence is not illegal because it does not exceed the maximum permitted by statute and was imposed pursuant to the law. State v. Acevedo, 205 N.J. 40, 45 (2011). Defendant's challenge based on excessiveness is not cognizable on PCR. See id. at 47; see also State v. Ellis, 346 N.J. Super. 583, 596 (App. Div.), aff'd, 174 N.J. 535 (2002). His challenge based on ineffective assistance of counsel lacks merit because the record amply supports the trial judge's findings and weighing of aggravating and mitigating factors.
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