On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-06-0887.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lihotz.
Defendant Kimsi Vaughn appeals from an August 19, 2009 order denying his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing. On appeal, defendant presents a single point, arguing:
THE POST-CONVICTION RELIEF COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THAT AN EVIDENTIARY HEARING WAS NOT REQUIRED TO DETERMINE WHETHER THE VOIR DIRE CONDUCTED BY THE TRIAL COURT DEPRIVED DEFENDANT-APPELLANT OF HIS CONSTITUTIONALLY PROTECTED RIGHT TO A FAIR TRIAL BY A JURY OF HIS PEERS AND WHETHER HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL.
A jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS) and second-degree possession of a CDS with intent to distribute. After determining defendant was extended term eligible, N.J.S.A. 2C:43-6(f), the court merged the lesser charge and imposed the maximum sentence of twenty years imprisonment subject to a ten year period of parole ineligibility, along with applicable fines and assessments.
In an unpublished opinion, we affirmed defendant's conviction and sentence on direct appeal and certification was denied. State v. Vaughn, No. A-4985-06 (App. Div. August 27, 2008) (slip op. at 15), certif. denied, 197 N.J. 14 (2008). Defendant filed a pro se petition for PCR alleging ineffective assistance of counsel. Counsel was assigned and the PCR submission was supplemented. Defendant generally asserted counsel was negligent in not advancing legal challenges such as not filing an interlocutory appeal of voir dire lapses and alleged Miranda*fn1 violations. Additionally, counsel's ineffectiveness resulted in the denial of his motions for mistrial and judgment of acquittal.
Following oral argument, Judge James Den Uyl issued a bench opinion denying defendant's petition, without an evidentiary hearing, finding the claimed errors were raised and denied on direct appeal. R. 3:22-5.*fn2 This appeal followed.
The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693); State v. Allah, 170 N.J. 269, 283 (2002). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
Counsel's efforts are measured by a standard of "reasonable competence." Id. at 53. Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Fritz, supra, 105 N.J. at 52. In our review, we must evaluate the conduct from the attorney's perspective at the time of trial, being careful to eliminate the distorting effects of hindsight. State v. Buonadonna, 122 N.J. 22, 42 (1991). Additionally, counsel may not be considered ineffective merely because the trial strategy failed. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).
In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); Allah, supra, 170 N.J. at 283. Defendant must prove to "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial[,]" undermining confidence in defendant's conviction. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. ...