On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-08-1091.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges Grall and Alvarez.
A jury found defendant William Pittman guilty of escape, N.J.S.A. 2C:29-5, and the trial court sentenced him to a four-year term of imprisonment. On direct appeal we affirmed his conviction, and the Supreme Court denied his petition for certification. State v. Pittman, No. A-6598-04 (App. Div. May 15, 2007), certif. denied, 192 N.J. 480 (2007). Defendant now appeals from the denial of his petition for post-conviction relief.
Defendant's conviction was based on the testimony of officers who were assigned to transport him from the Edison Police Station to the Middlesex County Adult Correction Center where he was to be held until posting of bail. Although defendant was handcuffed during the trip, he managed to get his back against the rear door and move its handle. The officer who was driving stopped the car, and as defendant was about to step out of the car, the officers managed to restrain him. With one pushing and the other pulling, the officers got defendant back into the car and transported him to the Correction Center.
Faced with the officers' account of the incident, defense counsel urged the jury to conclude that the police concocted the charges on which defendant was being held and the story about his escape. At the close of the State's case, the judge advised defendant that if he elected to testify, the State would not be permitted to cross-examine about his prior convictions but could cross-examine him about his testimony. The trial judge also explained that although defense counsel had advised him not to testify, the ultimate decision was up to him. Acknowledging that he understood, defendant advised the judge that he did not want additional time to speak to his attorney and said "[he] did not wish to take the stand." The judge asked, "You wish not to take the stand?" Defendant replied "Yes, ma'am."
On direct appeal, we found no merit to defendant's claim that the admission of evidence suggesting defendant's commission of prior crimes deprived him of a fair trial. We also concluded that defendant's right to a fair trial was not implicated by any error in the jury instruction on the defense of "legal irregularity" because there was no factual foundation for a charge on that defense.
On appeal from the denial of his petition for post-conviction relief, defendant's attorney presents the following issues:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.
[A.] THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S DECISION TO PRESENT THE DEFENSE OF LEGAL IRREGULARITY AT TRIAL WHICH NECESSARILY PRECLUDED ANY CHANCE THE DEFENDANT WOULD BE EXONERATED.
[B.] THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF HIS FAILURE TO COMPREHENSIVELY DISCUSS ALL RELEVANT RAMIFICATIONS OF TESTIFYING WITH HIM, WHICH ULTIMATELY RESULTED IN THE DEFENDANT FAILING TO TESTIFY AND PRESENT CRUCIAL INFORMATION TO THE JURY.
The governing legal standards are clear. In order to obtain relief
from a conviction based upon ineffective assistance of counsel, a
defendant must "identify specific acts or omissions that are outside
the 'wide range of reasonable professional assistance' and . . . show
prejudice by demonstrating 'a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different.'" State v. Jack, 144 N.J. 240, 249 (1996)
(quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104
S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)).
Stated differently, "a defendant must prove an objectively deficient
performance by defense counsel, and that such deficient performance so
inured to the defendant's prejudice that it is reasonably probable
that the result would" have been different but for counsel's error.
State v. Allegro, 193 N.J. 352, 366 (2008). In recognition of the wide
range of competent trial strategies, courts are directed to apply a
heavy measure of deference in determining whether a defendant received
adequate representation. Strickland, supra, 466 U.S. at 691,
104 S. Ct. at 2066, 80 L. Ed. 2d at 695; State v. Chew, 179 N.J. 186,
Judge Nieves did not preside at defendant's trial, but before he addressed defendant's petition he conducted an evidentiary hearing to address questions of fact that could not be resolved without additional testimony. ...