February 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH J. BROWN, A/K/A JOSEPH BROWN, A/K/A JOHN BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-11-2165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Harris and Koblitz.
After a jury trial, defendant Joseph J. Brown was found guilty of third-degree burglary, N.J.S.A. 2C:18-2, and third- degree theft of movable property, N.J.S.A. 2C:20-3a. He was sentenced on June 28, 2002, to an aggregate term of five years in prison with two years of parole ineligibility. His convictions were upheld on appeal. State v. Brown, No. A-6534-01 (App. Div. February 9, 2004), certif. denied, 180 N.J. 457 (2004).
In May 2007, having completed his custodial sentence, defendant filed a petition for post-conviction relief (PCR), alleging ineffective assistance of trial counsel. He claimed that his attorney exaggerated the State's evidence prior to trial, prompting defendant to write an incriminating card to the victim, which was admitted into evidence and contributed to his conviction. The motion judge denied defendant's PCR petition without an evidentiary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On the afternoon of June 22, 2001, a neighbor saw a man leave his bicycle and walk toward the rear of Linda Walton's home. The neighbor later saw the same man running from the scene, cradling something in his arms. An officer responded to the scene and noted that the Walton's home had been broken into and ransacked. He broadcast a description of the burglar as a white male with long blonde hair, wearing denim jeans or shorts.
Another officer stopped defendant, who fit the description, in the area. He was drunk and disheveled. Defendant said he had left his bicycle down the street and agreed to cooperate. The neighbor identified defendant as the man he saw earlier near Walton's home. Defendant indicated he had left his bicycle in the victim's yard, but refused to explain why he was there. Although fingerprints were found in the home, they did not match defendant's. Property from Walton's home was found on the lawn.
On December 18, 2001, defendant sent a Christmas card to Walton, writing in part,
Ms. Warton, I just like you to know that I am truly sorry for what happen. It was a mistake. I was drunk! and I don't remember taking anything. But, if it was me, then Please Forgive me? . . . We all Make mistakes!?. .
[(punctuation, grammar, spelling and emphasis as in original.)]
In his PCR appeal defendant raises the following issues:
DEFENSE COUNSEL'S NEGLIGENT MISREPRESENTATIONS OF THE STATE'S EVIDENCE DEPRIVED DEFENDANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
IN THE ALTERNATIVE, DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE OF DEFENSE COUNSEL'S NEGLIGENT MISREPRESENTATIONS.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
Defendant alleges that his trial attorney told him the State matched his fingerprints to those found in the home. He claims this misinformation prompted him to write the Christmas card to Walton, which was later introduced into evidence. The motion judge found that a hearing was not necessary because even if defendant's counsel had mistakenly represented the State's evidence, defendant's decision to write to Walton was his alone. Defendant's incriminating note was neither suggested by counsel nor a reasonably foreseeable consequence of counsel's mistaken communication. See State v. Malik-Ismail, 292 N.J. Super. 590, 598 (App. Div. 1996) (noting that "[t]he Constitution is not at all offended when a guilty man stubs his toe. On the contrary, it is decent to hope that he will.") (quoting State v. McKnight, 52 N.J. 35, 52-53 (1968)). We agree with this analysis and therefore agree that an evidentiary hearing was unnecessary. See State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000).
The legal principles governing our analysis of defendant's ineffective assistance of counsel claim 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), 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 requirement of effective counsel).
A defendant claiming his attorney was ineffective in his representation must first demonstrate 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 alleged error had some conceivable effect on the outcome of the trial is insufficient to sustain such a claim. Rather, "[t]he 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).
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 "recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). "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." Ibid. As discussed previously, "[t]o 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 whether a defendant has established a prima facie claim, the court should construe the facts in the light most favorable to the defendant. Cummings, supra, 321 N.J. Super. at 170.
The circumstances underlying defendant's PCR petition did not warrant an evidentiary hearing. Even if defense counsel misrepresented the nature of the State's evidence, that mistake neither caused defendant to write the incriminating card nor deprived him of a fair trial.
To the extent that we have not specifically addressed any of defendant's other arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion.
R. 2:11-3(e)(2). Affirmed.
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