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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...