On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 91-12-1269.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2010
Before Judges R. B. Coleman and J. N. Harris.
Defendant Craig Francis Szemple appeals from a July 27, 2009 order denying his application for post-conviction relief (PCR). We affirm.
In July 1994, defendant was found guilty by jury of first-degree
murder under N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2.*fn1
He was sentenced to life imprisonment and later sentenced to
a consecutive term of life imprisonment pursuant to a Hudson County
indictment for murder. A detailed recitation of the facts in this case
is set forth in our opinion of September 19, 1997. State v. Szemple,
No. A-0696-94 (App. Div. Sep. 19, 1997) (slip op. at 2).
Briefly, in 1975 sixteen-year-old high school student Nicholas Mirov worked part-time at the pharmacy owned and operated by defendant's family. Mirov delivered medical and surgical supplies with the then eighteen-year-old defendant. On July 19, 1975, Mirov disappeared after he was dropped off for work at the pharmacy by his father. Later that summer, defendant admitted to his brother that he shot Mirov because defendant owed him too much money and did not plan to pay him back. Four months later, Mirov's body was found in a wooded area off the highway near Mount Olive. The body remained unidentified until defendant's brother divulged information about the murder when he was questioned in 1991 by police concerning an unrelated homicide in Warren County.
On April 17, 1991, defendant was arrested. He was tried in July 1994, and the process of his direct appeal was completed on November 18, 1997, when the Supreme Court denied certification. State v. Szemple, 152 N.J. 189 (1997). On or about June 2, 1999, defendant filed a pro se petition for PCR. In June 2007, designated counsel for defendant filed an amended petition asserting ineffective assistance of counsel at trial. Following oral arguments on July 27, 2009, defendant's petition for PCR was denied. Defendant appeals that denial and raises the following issue for our consideration:
POINT I: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS DUE TO HIS FAILURE TO RETAIN INVESTIGATORS AND EXPERTS VIA THE PUBLIC DEFENDER'S OFFICE TO ASSESS THE STATE'S EVIDENCE.
In our review of defendant's appeal, we initially note that an evidentiary hearing for a PCR petition is not always required; the PCR court has discretion to conduct such a hearing if the defendant establishes a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). If a defendant makes a prima facie showing of ineffective assistance at trial, then the court at PCR proceedings should allow an evidentiary hearing and make a determination on the merits of the claim. Id. at 463-64. To establish a prima facie case, defendant must demonstrate a reasonable likelihood of success on the merits. State v. Marshall, 148 N.J. 89, 158 (1992). Therefore, in the context of allegations against counsel for failure to investigate a claim, the following considerations pertain:
[T]o establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. . . . [H]e must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification. [State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).]
"If the 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." Marshall, supra, 148 N.J. at 158 (citations omitted). In determining whether a defendant has established a prima facie claim, the court views the facts in the light most favorable to a defendant. Preciose, supra, 129 N.J. at 462-63.
It is well-settled, a prima facie claim of ineffective assistance of counsel requires defendant to show (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. The standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000). "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007).
Defendant argues, in part, that his trial counsel's loss of confidence in his innocence resulted in ineffective assistance of counsel. That argument is procedurally barred pursuant to Rule 3:22-5. The argument has been considered previously on the merits and rejected. See ...