On appeal from Superior Court of New Jersey, Law Division, Salem County, Accusation No. 04-04-00028.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Defendant Steven Gregory appeals from the January 15, 2010 order denying his petition for post-conviction relief (PCR) without a hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On June 8, 2004, defendant killed the victim by hitting him on the head "recklessly" with a flashlight. Defendant voluntarily waived the right to an indictment and entered a plea of guilty to Salem County Accusation No. 04-04-00028, charging him with one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. In exchange for the guilty plea, as he was a first offender, the State agreed to dismiss charges of first-degree murder, N.J.S.A. 2C:11-3a(1), first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3, third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and recommend a sentence of no more than twelve years in prison with an eighty-five percent period of parole ineligibility as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the guilty plea hearing, defense counsel noted that although defendant entered a guilty plea prior to indictment, he was "provided with a large volume of information" by the State, which he "poured over" with defendant "in great detail[.]" At the sentencing hearing on June 8, 2004, the victim's family spoke, indicating that they believed the plea agreement was too lenient. Defense counsel presented a letter from defendant's sister, whom he referred to as occupying "the epicenter of what has taken place in this tragic situation . . . ." Defense counsel told the court that defendant had assumed the position of "patriarch" of his family and was defending his sister's "honor" in this incident. Defendant's sister had apparently been insulted by the victim two weeks before the killing. In the pre-sentence report, defendant was quoted as saying that the victim "threw his sister on the ground and began calling her names. He related [the victim] told his sister he was going to kill her and him."
The trial court found aggravating factor nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(9). The court also found mitigating factors five, seven, eight, nine and ten. N.J.S.A. 2C:44-1b(5), (7), (8), (9) and (10). The court indicated that it found factor five, the "victim of defendant's conduct induced or facilitated its commission," only to a "slight" degree. As agreed to by the State, defendant received the sentence of twelve years with an eighty-five-percent period of parole ineligibility, three years less than the midpoint of the thirty-year maximum term, along with the required penalties.
We affirmed the sentence on appeal. State v. Gregory, No. A-7009-03 (App. Div. May 5, 2005). Defendant filed a timely PCR, arguing that his trial counsel was ineffective by not providing him with all of the discovery, which prevented defendant from providing counsel with evidence of mitigating factor five, that the victim had insulted defendant's sister, so that the court would have accorded that factor greater than "slight" weight. The trial court denied the PCR application without an evidentiary hearing, deciding that even if the sentencing court had given mitigating factor five great weight, "the sentence would have gone no lower and the sentence was appropriate based on the factors shown in the Presentence Report, the case law, as well as the negotiated plea."
On appeal, defendant raises the following issue:
THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J.
CONST. ART. I, PAR. 10 Defendant argues generally that defense counsel did not "adequately prepare himself" for sentencing argument and did not "adequately" present defendant with "all the discovery in this case." Defendant contends that the trial court should have conducted an evidentiary hearing based on these claims. The legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled and well-known. To prevail on 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 the defendant must also prove 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. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing generally the requirements for effective counsel).
A defendant claiming that his attorney was ineffective in his representation of the defendant must demonstrate first, that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. 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 2064, 80 L. Ed. 2d at 698. This two-pronged standard has been expressly adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987); State v. Cooper, 410 N.J. Super. 43, 58 (App. Div. 2009). A defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
An evidentiary hearing is not necessary in every PCR matter where a defendant alleges ineffective assistance of counsel. R. 3:22-1. Rather, Rule 3:22-1 grants trial courts discretion as to whether or not to hold one. "Trial courts ordinarily should grant evidentiary hearings to resolve ineffective assistance claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. In determining ...