August 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWARD J. DAVIS, A/K/A EDWARD DAVIS, EDDIE DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-05-0695.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2010
Before Judges A. A. Rodriguez and LeWinn.
Defendant Edward J. Davis appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In February 2003, following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. After appropriate merger of offenses, Judge Wendell E. Daniels imposed an extended fifty-year term with a NERA*fn1 disqualifier. We affirmed. State v. Davis, No. A-6123-02 (App. Div. July 7, 2004), certif. denied, 182 N.J. 148 (2004).
Shortly after 6:30 p.m. on December 27, 2001, Diego Reyes was working at a donut shop in South Toms River. *fn2 Defendant entered the store armed with a knife and demanded "the money." Defendant fled after Reyes turned over about twenty-five dollars from the register. After Reyes called police, South Toms River Police Officer William Kosh responded and obtained a description of the robber. Kosh also spoke with a salesclerk at a bookstore in the same strip mall, who reported that he had seen an individual matching defendant's description in his store at approximately 6:30 p.m.
Kosh responded to the scene again at 8:25 p.m. because the salesclerk reported that he had seen the same man enter his store. When Kosh arrived, he witnessed defendant attempting to enter the passenger-side door of a vehicle parked in front of the strip mall. A little over an hour after police arrested defendant, Reyes was driven past defendant, who was standing between the two police officers. Reyes said "him, him," indicating a positive identification of defendant as the person who robbed him.
Prior to trial, the judge conducted a Wade*fn3 hearing and denied defendant's motion to suppress Reyes' show-up identification. Defendant did not testify at trial.
Represented by counsel, defendant filed a PCR petition, arguing that: (1) trial counsel's "failure to challenge the veracity of the victim's testimony through cross-examination was ineffective assistance of counsel"; (2) ineffective assistance of appellate counsel; (3) Reyes should have testified at the Wade hearing; (4) the trial judge erred in failing to charge the jury on third-degree theft as a lesser-included offense; and (5) defendant should have been sentenced according to State v. Natale, 184 N.J. 458 (2005).
Judge James Den Uyl denied the petition. The judge noted that defendant made only bald assertions without evidence of prejudice. The judge found no basis to conclude that Reyes' testimony at the Wade hearing was necessary because Kosh, who witnessed the show-up identification, testified. The judge also rejected the claim of ineffective assistance by appellate counsel, finding no showing of prejudice. Lastly, the judge found that the argument regarding Judge Daniels' failure to charge a lesser-included offense was barred by operation of Rule 3:22-4.
On appeal, defendant contends that:
THE PCR COURT ERRED IN DENYING [DEFENDANT] AN EVIDENTIARY HEARING.
1. The PCR Court Should Have Held A Hearing on Compliance With Natale On Defendant's Sentence.
2. The PCR Court Erred In Not Holding A Hearing Regarding Trial Counsel's Failure To Request A Lesser-Included Offense Charge.
3. The PCR Court Erred In Not Holding A Hearing About Whether It Was Error For Reyes To Not Testify At The Wade Hearing.
4. The PCR Court Erred In Not Holding A Hearing Regarding Whether Trial Counsel Knew Of Reyes' Prior Relationship With Defendant.
We find no merit in these contentions.
The standard for assessing an attorney's performance is well-known. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d. 674, 693 (1984). The New Jersey Supreme Court has adopted this standard for deciding claims of ineffective assistance arising under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 51 (1987). The first requirement is that defendant show that counsel's performance was deficient due to "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. Our review of counsel's strategy or technique is "highly deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Here, we conclude that defendant has failed to establish that his counsel made such egregious errors. Indeed, from our careful review of the record, we do not perceive that trial counsel provided ineffective assistance in any way.
With respect to defendant's claim of entitlement to an evidentiary hearing, we are mindful that when making such a decision, "courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Preciose, 129 N.J. 451, 462-63 (1992). If a "defendant has presented a prima facie claim," of ineffective assistance of counsel then a trial judge should typically grant an evidentiary hearing. Id. at 462.
However, "if the [trial] 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." State v. Marshall, 148 N.J. 89, 158 (1997) (internal citations omitted). We conclude that such is the case here. Defendant's allegations are simply too conclusory and speculative to justify an evidentiary hearing.
Finally, the judge found that defendant's trial and appeal had been concluded before Natale was decided and therefore, defendant was not entitled to "pipeline retroactivity." Our review of the record indicates that defendant did not raise a Blakely*fn4 claim on direct appeal or PCR. Therefore, his argument regarding Natale is without merit. Any argument regarding the excessiveness of the sentence is barred by Rule 3:22-5, because this issue was expressly adjudicated on direct appeal.