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State of New Jersey v. Malvern Lewis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 6, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MALVERN LEWIS, A/K/A MALVERN L. LEWIS, RODERICK LEWIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-04-0404.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 2011

Before Judges Axelrad and R. B. Coleman.

Appellant filed a pro se supplemental brief.

Defendant Malvern Lewis, who was tried before a jury in 2003 and found guilty of the murder of his former paramour's new boyfriend, aggravated assault upon the paramour and various weapons offenses, appeals from a May 19, 2009 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

On defendant's direct appeal, we affirmed his conviction of murder, but we reversed his aggravated assault and related weapons convictions. State v. Lewis, 389 N.J. Super. 409 (App. Div.), certif. denied, 190 N.J. 393 (2007). We also noted at that time that defendant had asserted ineffective assistance of counsel claims, which were best left to post-conviction review. Id. at 415-16. Defendant filed a pro se petition for PCR and an application for public defender assistance. Counsel was assigned and a supplemental petition for PCR was submitted in April 2008. Subsequently, by letter dated October 1, 2008, defendant's PCR counsel also submitted a supplemental letter brief, and on January 31, 2009, a supplemental letter memorandum identifying additional issues raised on behalf of defendant. On May 19, 2009, the PCR court convened its hearing and rendered an oral opinion denying defendant's petition for PCR, memorialized in an order of the same date. The court found defendant's claims lacked sufficient specifics to require an evidentiary hearing. This appeal followed.

The essential facts leading to defendant's conviction may be briefly summarized. In April 2000, M.R., with whom defendant had been living and with whom he had conceived a daughter, obtained a final restraining order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Among other things, the FRO barred defendant from contacting M.R. or her children (she had two older daughters from a previous relationship) and from returning to the family home in Trenton, except in the company of law enforcement officers to retrieve his belongings. Unbeknownst to defendant, M.R. had begun a romantic relationship with another man, Clarence Brown, and soon after Lewis moved out, Brown moved into the family's home.

In the early morning hours of May 7, 2000, defendant broke into the home where he encountered Brown. Defendant repeatedly stabbed and clubbed Brown to death. Instead of leaving, defendant remained in the home waiting for M.R., who returned a few hours later with her brother and her three daughters. As M.R. prepared to enter the front door, defendant slammed it open from the inside, brandishing a knife. M.R. attempted to run, but defendant grabbed her, stabbing her in the arm and cutting her shoulder before she was able to pull free. Defendant then fled, but he later approached two Ewing Township police officers, telling them he believed he was wanted for murder in Trenton. Upon receiving confirmation that defendant was, indeed, sought for murder, the officers handcuffed him and transported him to headquarters for processing.

At the trial, defendant vacillated about whether he would testify in his own behalf. During a pretrial conference, the court explained to defendant his right to testify or not to testify, noting that defense counsel had expressed his intention to tell the jurors in his opening statement that defendant planned to testify. The court elaborated on the ramifications of that course of action in the following extended colloquy:

THE COURT: [T]here's [sic] ramifications with that with respect to that decision [to testify]. You have to discuss it with your attorney before you make your decision. And I've heard your attorney represent to me that you're going to testify. Ordinarily, I don't go over this until later in the trial, and right now, I'm going over this with you, not seeking your decision in any way, but to acquaint you with the various things that you have to consider and the decisions that you have to make at some point. Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: Okay, so -- and the other thing is you may want to talk to your attorney about whether or not he should tell the jury you're going to testify in opening, because that's important. That's an important thing. He's represented to this Court that that is what he's going to say. And, you know, there's two sides to that, too. That's telling them right up front they're going to hear from you. Well, if they don't hear from you, they've heard from him you're going to testify and then you choose not to testify, . . . I don't know what they would do with that. I would tell them not to consider it, you know, and I would hope they would follow my instruction, but if [defense counsel] tells them in opening that they're going to hear from you, you know that's, that indicates to me, at least, that you and he have talked, and you thought about it, and you've made the decision to allow him to go forward in that way and to have, to tell the jury that. He's represented that to the Court. So you have some decisions you have to make, and you have to decide what's best for you under all the circumstances. . . .

So at some point, though, I'm going to turn to you, and I'm going to go over all this again with you. At that point, they will have heard his opening. They will have heard all the testimony, but they won't have heard from you because you're going to have to tell me that you want to waive your rights before they'll hear from you, or before they'll know from the Court that you're thinking about testifying. Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: I'm not asking you for your decision [now].

Later the same day, after the court had ruled on other evidentiary issues, as defendant was leaving the courtroom, he suddenly yelled, out of the presence of the jury, "[y]ou'll be picking the jury without me, convict me without me. . . . I don't want to talk to anybody. I just want to go to jail."

The court immediately informed defendant that he had a right to be present during the trial, which was about to start.

He warned defendant that if he chose not to be present he would not be forced to attend, but that would not delay the trial. Defendant's counsel then commented that if defendant elected not to attend the trial, counsel would have to assume defendant was "suffering under some form of mental disease or defect. [He] would have to have him examined." Counsel added that there were times when he felt that defendant was not thinking clearly, and that he may need to have defendant evaluated.

The court acknowledged that counsel could have defendant tested, but it also admonished that "[t]here is no per se insanity for someone's failure to appear at trial[.]" The court reiterated that the trial would begin on schedule, adding that the court did not doubt defendant's competency to stand trial. The court stated:

THE COURT: In fact, I want to put this on the record. I said to [defense counsel] yesterday that [defendant] has not looked me in the eye but one time up to that point. But today he was very responsive. He was looking right at me when I was talking the entire time. There's -- today, he was listening to me, and when I addressed him this morning, I had the feeling that he was comprehending what I said about his right to testify or not, and the various ramifications. He clearly responded to my questions, and he did just now again. So he may be upset, he may be angry, but he showed me no signs of any inability to comprehend any kind of disqualifying mental state. He's not -- he's certainly not incommunicative in the sense that he can communicate. Whether you have a problem communicating with him or he doesn't want to communicate with you, that's his -- that's something. But he can communicate if he wants to[.]

No mental health evaluation was arranged, and defendant was present for the start of trial.

Following the State's opening statement, the court inquired whether defendant and his counsel had decided what counsel would tell the jury during the opening statement. Defense counsel indicated that he would say defendant planned to testify, whereupon defendant immediately informed the court he would not be testifying. After a recess, defense counsel stated to the court that he was not prepared to open because he had anticipated that defendant intended to testify. The court indicated that counsel could choose to waive his opening but again stated that the trial would not be delayed "by some failure to communicate between you and your client."

After a brief recess, defendant changed his position and informed the court he would be testifying. Based on that expressed strategy, defense counsel told the jurors they would hear testimony from defendant concerning what happened during the night of Brown's death. In the opening statement, counsel described the encounter between defendant and Brown as a fight to the death between two men, neither of whom knew the other and each of whom thought he was defending M.R.'s home from an unknown intruder.

Following the court's rulings on motions made by defendant at the end of the State's case, defendant indicated to the court he was aware of his right to remain silent, but that he intended to testify. Upon the jury's return to the courtroom, the State formally rested, and defendant was called to the witness stand. He stood and stated "I'm not going to testify, your Honor." The jury was quickly ushered out of the courtroom.

Defendant's sole explanation was he had changed his mind. The court inquired if the defendant had anything else he would like to say to the court before summations and if he understood his rights or the status of his case. Defendant stated he had nothing more to add, and he confirmed he understood his rights and status. The jury returned, and the defense rested without calling any witnesses.

During the ensuing charging conference, the court asked defendant if he wanted the court to include the charge concerning his election not to testify. When defendant responded "it's up to you," defense counsel interjected, "if [defendant] decides not to make a decision, I would ask the Judge to give the charge." The court granted that request.

As noted, on direct appeal, defendant's arguments of ineffective assistance of counsel were noted by the reviewing panel, which declined to rule on those arguments. The panel wrote:

Point I of defendant's brief argues that he was denied the effective assistance of counsel. He claims that his attorney failed (1) to adequately investigate his background, which would have indicated the presence of mental disabilities bearing on his guilt and his ability to assist in his defense; (2) to appreciate that the circumstances of the crime suggested mental illness; (3) to appreciate that defendant's conduct at the trial indicated relevant mental problems; and (4) to properly conduct the defense in various respects. None of these points appear to have any merit, but ineffective assistance of counsel claims are best left to post-conviction review. Consequently, we will not comment further on these claims other than to note this statement in defendant's brief respecting one aspect of what he perceives as evidence of a deranged mental state:

First and foremost, the nature and circumstances of this killing should have been a sufficient red flag to trigger some kind of psychological evaluation. The evidence shows that the assailant did not simply stab the victim and flee. He attacked him so viciously that almost all of the blood drained out of his body. The blood spatter on the walls and the amount of blood in the carpet by the front door was enormous, so enormous that counsel should have questioned his client's mental state at the very beginning of the investigation. [Lewis, supra, 389 N.J. Super. at 415-16 (App. Div. 2007) (internal citation omitted).]

Although defendant's petition for PCR presented a twenty-one point legal argument, the essence of the claims of ineffective assistance is no different than that summarized in our opinion disposing of the direct appeal. Defendant's counsel submitted a supplemental letter brief and a supplemental letter memorandum that sought to resurrect challenges to the jury selection process, but those challenges have been rejected, and they have insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

During defendant's PCR hearing, the court found certain arguments - points ten (alleging abuse of discretion by the trial court) and twelve (alleging defendant's sentence is unfair and illegal) - should have been raised on direct appeal; accordingly, it denied relief on those grounds. See R. 3:22-5. More pertinent to this appeal, the court found defendant's ineffective assistance of counsel claims were insufficient to warrant a hearing. Ultimately, the court denied defendant's request for an evidentiary hearing because defendant failed to show any likelihood of success on the merits. Nothing other than the nature of the occurrence and defendant's vacillation at trial concerning the decision not to testify, punctuated by his threat not to attend the trial, were offered to support the claim of ineffective assistance of counsel. While he criticizes trial counsel for failing to obtain a mental evaluation, defendant did not come forth in the PCR proceeding with any expert assessment that attributes his actions to a mental disease, defect or disorder or that opines he lacked the capacity to communicate with or to assist counsel at trial. Accordingly, the PCR court determined that defendant had not established his claim that his trial counsel was ineffective for failing to obtain a mental health evaluation.

In his brief on this appeal from the denial of his petition for PCR, defendant raises the following points of argument for our consideration:

POINT I: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON MR. LEWIS'S PRO SE CLAIM THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL ATTORNEY FAILED TO OBTAIN A COMPETENCY EVALUATION BEFORE TRIAL; FURTHER THIS MATTER MUST BE REMANDED BECAUSE PCR COUNSEL AND THE PCR COURT NEVER ADDRESSED THIS CLAIM, DENYING MEANINGFUL REVIEW OF MR. LEWIS'S PETITION. (Partially Raised Below).

POINT II: THIS CASE MUST BE REMANDED FOR NEW PCR COUNSEL AND A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED TO REPRESENT MR. LEWIS AND UNDERMINED HIS CLAIMS SO AS TO RENDER HIS PCR PETITION MEANINGLESS. (Not Raised Below.)*fn1

Neither of the issues has merit.

I.

Our review is guided by well-established standards. A prima facie claim of ineffective assistance of counsel requires defendant to show counsel's performance was deficient and, but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 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. That standard "does not require the best of attorneys, but certainly not one 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) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).

We are not bound to give deference to the legal conclusions of the PCR court on appellate review. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2005). However, deference is typically given "to the trial court's factual findings . . . 'when supported by adequate, substantial and credible evidence.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). For mixed questions of law and fact, we afford deference to the court's supported factual findings, but review de novo the court's application of legal principles to the factual findings. Harris, supra, 181 N.J. at 416 (citing State v. Marshall, 148 N.J. 89, 185 (1997)).

II.

Defendant argues his counsel was ineffective for failing to obtain a competency evaluation, and he asserts that his own actions during trial show he was not able to consult intelligently with his counsel. Defendant points largely to his surprise decision not to testify as evidence of his inability to assist his attorney. He argues "[t]he record speaks for itself that Mr. Lewis suffered from mental health problems" and he urges a remand is needed to settle the question of whether he was competent to stand trial.

N.J.S.A. 2C:4-4(a) prohibits the trying, convicting, and sentencing of a defendant who "lacks [the] capacity to understand the proceedings against him or to assist in his own defense . . . so long as such incapacity endures." N.J.S.A. 2C:4-4(b) states, however, that a defendant is mentally competent to stand trial if the proofs establish:

(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and

(2) That his elementary mental processes are such that he comprehends:

(a) That he is in a court of justice charged with a criminal offense;

(b) That there is a judge on the bench;

(c) That there is a prosecutor present who will try to convict him of a criminal charge;

(d) That he has a lawyer who will undertake to defend him against that charge;

(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;

(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and

(g) That he has the ability to participate in an adequate presentation of his defense.

The threshold determination as to competency must be made by the trial judge and appellate review of the court's decision is "a strict one." Harris, supra, 181 N.J. at 458 (quoting State v. Spivey, 65 N.J. 21, 37 (1974)). The Supreme Court has observed "while the court has the power to order an inquiry in the defendant's mental qualifications to stand trial, failure to exercise the powers will not be reviewed on appeal, unless it clearly and convincingly appears that the defendant was incapable of standing trial." Ibid. (quoting State v. Lucas, 30 N.J. 37, 73-74 (1959)). "To meet the clear and convincing standard on appeal, a defendant must show a 'bona fide doubt' as to [his] competence to stand trial." Harris, supra, 181 N.J. at 458 (quoting Spivey, supra, 65 N.J. at 37). "It is to be ordinarily expected that defense counsel, who is in a far better position than the trial judge to assay the salient facts concerning the defendant's ability to stand trial and assist in his own defense, would originate the request that such an inquiry be conducted." Lucas, supra, 30 N.J. at 74.

Here, defendant argues trial counsel was ineffective because he voiced concern about defendant's mental state but failed to obtain a psychological evaluation. This, defendant argues, makes out a prima facie case of ineffective assistance of counsel. We disagree. The circumstances only disclose that defendant's indecisiveness and occasional obstinance frustrated his trial counsel and may have impaired counsel's ability to formulate and adhere to a consistent trial strategy. It did not signal that defendant was not competent to stand trial or that counsel's assistance was so deficient that defendant was denied a fair trial.

A review of the record reveals the trial court dutifully informed defendant of his constitutional rights to remain silent, to the presumption of innocence and to elect not to testify. Throughout, defendant indicated that he understood the court's instructions and explanations, and ultimately he exercised his right not to testify, albeit at the last possible moment and openly, in front of the jury after he had been called to the witness stand. As defendant explained it, "I changed my mind." Unfortunately, defendant communicated his decision in open court, but that was not due to the fault of counsel or the court, and any prejudice was self-created. Nothing in the record suggests that defendant's conduct was due to a lack of mental competency. Instead, the record shows that defendant had communicated with his attorney about his decision not to testify, that he understood there was a judge, and that he understood there was a jury.

Defendant points out his trial counsel's comment that he might need to have defendant evaluated shows counsel's awareness of defendant's competency issues. Trial counsel also stated that there were times when he felt that defendant was not thinking clearly, but the trial court observed contemporaneously that it did not doubt defendant's competency. The court specifically found that defendant was responsive and communicative. Defendant's behavior did not manifest or evidence an inability to comprehend or communicate. Rather, the court found "he can communicate if he wants to."

The trial took place in 2003, the appeal was decided in January 2007, and the PCR hearing took place in April 2009. During that span of time, defendant has not arranged for an evaluation by a psychologist or psychiatrist. He still has not offered any expert opinion to suggest that he suffers from a mental disorder or that the result of the trial would have been different if he had been evaluated by a mental health specialist before trial. Instead, defendant urges us to remand for an evaluation and hearing "so that an official finding can be rendered as to his competency, to assure that his rights were protected." It is plain, therefore, that there was no evidence, then or now, that defendant was or is not mentally competent or that he was denied adequate assistance of counsel.

Contrary to defendant's arguments, no evidentiary hearing was required. "To establish . . . a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Marshall, supra, 148 N.J. at 158. "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." Ibid. (citations and internal quotation marks omitted). As we have observed:

[I]n order to 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.) (citing R. 1:6-6), certif. denied, 162 N.J. 199 (1999).]

Defendant has not asserted facts to support a finding of incompetence. He has not detailed any effort to procure an evaluation or affidavits from trial counsel or from a mental health specialist asserting any mental disorder that likely affected his ability to assist counsel at trial. Under such circumstances, we do not find error in the PCR court's denial of defendant's petition or its decision not to hold an evidentiary hearing.

III.

Defendant also argues that his PCR counsel was ineffective for not advancing vigorously the claims of his PCR petition. We find this argument so lacking in merit that it does not warrant discussion in a written opinion. R. 2:11-3(e)(2). We note that PCR counsel stated on the record that he met with defendant "two or three times" to find out what issues defendant wished to advance. When questioned by the court concerning arguments made in the brief without specifics, PCR counsel explained he understood he had an obligation to advance any grounds insisted upon by defendant:

Well, Judge, they're in the back of the brief for a reason. My client, instead of submitting a supplemental brief, wanted me to do one brief, and in the one brief, he had issues he wanted me to advance. Whether I could advance it with legal arguments or not, I still have to put it in the brief.

Your [H]onor is aware of the law with regard to [State v.] Webster[, 187 N.J. 254 (2006)] . . . so I have to put it in before the Court, and if there's an argument in furtherance of that, I incorporate it, I write. If not, I have to put it in the brief.

And I'll point out, though, I called trial counsel before I wrote the brief to see if there's any issues that are out there, omissions of counsel otherwise.

But I believe the law is clear that on page [thirty-one], I advanced the issue to the best of my ability after communicating to my client if I don't put it in that I'm not acting in compliance with [State v.] Rue[, 175 N.J. 1 (2002).]

When questioned concerning PCR counsel's argument under Point Five which seemed to include facts not applicable to defendant's case, PCR counsel explained: "[I]t's tied into the issue of whether or not they had reasonable suspicion and/or probable cause to stop or arrest my client. Part of that paragraph applies to State v. Rue."

During the PCR proceeding, counsel also raised an issue that he felt the transcripts showed a colloquy between the judge and a juror. In addition to counsel's statement during the PCR proceeding, counsel also submitted a supplemental letter brief advancing two additional arguments and incorporated by reference "[p]ages [three] through [eight]" of defendant's pro se PCR outline. PCR counsel also submitted a supplemental letter memorandum asking for the reasons underlying the dismissal of his complaint to the Advisory Committee on Judicial Conduct and requesting a verbatim trial audio recording.

Based on the PCR record, defendant's PCR counsel consistently explained that in spite of any deficiencies in the briefs, he had attempted to comply with Rue. PCR counsel did not volunteer this information but responded to inquiries by the court. Counsel also explained defendant insisted on only submitting a single brief. It is obvious PCR counsel was at pains to comply with defendant's wishes concerning the issues to be advanced.

When evaluating an ineffective assistance claim, "'[j]udicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "Merely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999) (citing Davis, supra, 116 N.J. at 357). "An inadequate investigation of the law or fact, however, dispels the presumption of competence that might otherwise arise from a strategic choice." Ibid. The reviewing court must: determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. [Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.]

Missing from defendant's argument on appeal is any affidavit or certification that defendant did not approve of a point of argument or did not want PCR counsel to advance such an argument. PCR counsel also stated clearly that defendant insisted on submitting a single brief. Ultimately, the PCR court determined that all of the alleged errors, including those incorporated by reference, without specifics, were incapable of affecting the outcome. We acknowledge PCR counsel stated he made arguments where arguments could be made, given the relative lack of merit inherent in defendant's petition for PCR.

Therefore, upon our review of relevant authority and the record before us, we cannot find PCR counsel's performance deficient.

Defendant also argues that PCR counsel denigrated defendant's arguments in support of PCR by stating that he listed them "in the back of a brief for a reason." Defendant argues that PCR counsel told the court, in effect, that defendant's claims lacked merit. Although PCR counsel explained some deficiencies in the brief, such as a lack of argument or specifics were his attempt to comply with Rue and Webster, PCR counsel did not "abandon[] any notion of partisan representation by countering every one of his claims and characterizing the entire petition as meritless[.]" See Rue, supra, 175 N.J. at 19. Instead, he relied on his submission and offered to answer any questions the court might have. Although "a trial court should never put PCR counsel in the position of having to assess the merits of his client's petition," ibid., in this case, the PCR court did inquire about the arguments set forth in defendant's petition. The court did not press counsel to expound the merits - only to settle some confusion. Therefore, PCR counsel's statement that he attempted to comply with applicable case law did not denigrate defendant's claims and, thus, was not ineffective assistance of counsel.

IV.

Defendant's pro se brief requests that we dismiss the case against him. In support of that request, defendant claims: (1) his arrest was illegal; (2) he was never given his Miranda*fn2 rights at the point of arrest; (3) his trial counsel was a member of the grand jury that indicted him; (4) he was framed by the police, and there was not a chain of custody with the crime scene photos; and (5) defendant did not receive the entire Grand Jury transcript after a timely request.

A defendant ordinarily must pursue relief by direct appeal, see Rule 3:22-3, and may not use post-conviction relief to assert a new claim that could have been raised on direct appeal unless the bar would create a "fundamental injustice" or an unconstitutional result. R. 3:22-4. Pursuant to Rule 2:10-2, a reviewing court is not obligated to consider errors not previously asserted. State v. Robinson, 200 N.J. 1, 20 (2009).

Because we find the defendant's pro se claims to be allegations of error that could have been addressed at trial or on direct appeal, we deem these arguments procedurally barred.

R. 3:22-4.

Affirmed.


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