April 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS J. DOMKE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-01-0018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Wefing and Payne.
A jury convicted defendant of one count of aggravated arson, N.J.S.A. 2C:17-1a; three counts of criminal mischief, N.J.S.A. 2C:17-3a(1); and one count of aggravated assault, N.J.S.A. 2C:12-1b(5). The trial court sentenced defendant to six years in prison, subject to the parole ineligibility provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act. Defendant appealed his convictions and sentence, and we affirmed. State v. Domke, No. A-2918-04T4 (App. Div. July 25, 2006). The Supreme Court denied defendant's petition for certification. State v. Domke, 189 N.J. 429 (2007).
Defendant thereafter filed a timely petition for post-conviction relief that the trial court denied after hearing argument. Defendant appeals from the trial court order denying that petition. After reviewing the record in light of the contentions advanced on appeal, we are constrained to reverse and remand for further proceedings.
In our earlier opinion, we set forth the factual background to defendant's convictions.
Following a day-long argument with his girlfriend of nine years and commission of acts of domestic violence on her and property damage to her van, defendant returned to the apartment he shared with the girlfriend and her mother, ran the vehicle he was driving into a van that he owned, smashed various personal possessions in the apartment, and set fire to the mother's box springs and a living room love seat. As the fire swelled, defendant escaped from a window onto a first-floor roof, and after the police approached him, jumped from the roof to the ground, where he was tackled by police who were on the scene as the result of reports of the domestic violence and the auto collision. During the course of defendant's apprehension, a patrol officer received a laceration from a knife in defendant's pocket. [Domke, supra (slip op. at 2).]
Defendant raises the following arguments on appeal:
POINT I THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR POST-CONVICTION RELIEF AS THE CONDUCT OF TRIAL COUNSEL, MICHAEL WICKE, ESQ., WAS INEFFECTIVE POINT II DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATIONS TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL The standards by which we must measure a claim that a defendant has been denied the effective assistance of counsel are well known. We note them briefly.
To maintain a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but a defendant must also establish that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. New Jersey has explicitly adopted this two-prong measure. State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant submitted the following statement of facts in support of his petition that his trial attorney was ineffective. We set forth defendant's statement exactly as he included it in his petition.
1) I still clame my Innocent's of the facks that I Thomas J. Domke was given Ten polygraph Test over a Time Period of six months, and The Lady That had gave me The polygraph Test--told me I have passed All Ten. ANd my Public Defender said Nothing at The Trial.
2) When I was tackled By The Police, I was kicked, hit, and jumped on ANd now I'm Crippled, This my Public Defender Also said Nothing ABout, I Also have witnesses who seen the Police Beating on me, Also the officer Testifyed in a court of Law That I did Nothing To her, AS to the assault charge.
We note first that defendant's concluding statement in support of his pro se petition related to his conviction under Count 6 for aggravated assault upon Officer Kanecke of the South Amboy Police Department. The State concedes in its responding brief that the evidence at trial was insufficient to support this conviction and that defendant's motion at trial to dismiss this count should have been granted. In light of this concession, the trial court, in connection with the remand proceedings, shall enter an amended judgment of conviction vacating defendant's conviction for aggravated assault.
After defendant filed his pro se petition, counsel was assigned to represent defendant. That attorney, however, did not file a brief in support of defendant's contentions. Rather, he advised the court that he had reviewed the file, the trial transcripts and discussed the matter in-depth with defendant and had not uncovered anything "that would add anything, to make a difference in his case." This statement, of course, contrasts with the State's concession with respect to defendant's conviction for aggravated assault.
The trial court offered him the opportunity to prepare a brief on defendant's behalf, but he declined, saying he was ready "to resolve it today" and did not "have anything to add by way of a brief." Defendant then intervened and complained of his trial attorney's failure to present evidence with respect to the polygraph exams defendant said he took. Defendant's attorney did not support his client's position in this regard but rather referred to polygraphs as "very dubious" and "not admitted into [e]vidence."
We are constrained to conclude that the attorney assigned to represent defendant ran afoul of the precepts of State v. Rue, 175 N.J. 1, 19 (2002), in which the Court noted:
In some cases, the record will give PCR counsel a wealth of grist for his or her mill, in some cases, not. At the very least, where communication and investigation have yielded little or nothing, counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument. In no event however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition. That kind of conduct contravenes our PCR rule.
Here, defendant's attorney filed no brief on his behalf and made no attempt to advance his client's position before the court. We may not affirm the trial court's order simply because, on first blush, it may appear that defendant's chances of prevailing are unlikely. Defendant is entitled to have his attorney advocate on his behalf.
Reversed and remanded for further proceedings.
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