February 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MCCALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-02-0237.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011
Before Judges Messano and Yannotti.
Defendant Anthony McCall appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing.
Following a joint trial with his co-defendant, Jemel F. Powell, defendant was convicted by a jury of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a); third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3; first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree theft of movable property, N.J.S.A. 2C:20-3(a); second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e). After appropriate mergers, the judge imposed the following consecutive sentences: five years for receiving stolen property; fifteen years with an 85% NERA*fn1 disqualifier for carjacking; fifteen years with an 85% NERA disqualifier for armed robbery; five years for theft; and ten years for eluding.
We affirmed defendant's convictions and sentence. State v. McCall, No. A-3604-03 (App. Div. Mar. 14, 2006) (slip op. at 25). Defendant's petition for certification was granted solely as to his sentence. State v. McCall, 187 N.J. 77, 77 (2006). The Court remanded the matter to review the sentence in light of its holding in State v. Natale, 184 N.J. 458 (2005). Ibid. The trial judge imposed the same sentence on remand, and we affirmed that sentence on appeal. State v. McCall, No. A-1021-06 (App. Div. July 24, 2007).
Defendant filed a pro se petition for PCR on February 8, 2007, in which he claimed trial counsel and appellate counsel provided ineffective assistance. In particular, defendant asserted that trial counsel failed to "adequately review discovery and prepare an intoxication defense"; failed "to investigate potential witnesses therein"; failed "to obtain a psych-examination"; failed "to acknowledge a false police report"; and both counsel failed "to acknowledge that [the] judge charged an unindicted charge during jury instructions." In his brief, PCR counsel also argued that: the indictment should have been dismissed because it was based upon hearsay testimony; the judge made improper remarks during the jury charge, thus denying defendant a fair trial; an evidentiary hearing was required; and the petition was not procedurally-barred.
Before the PCR judge, who was also the trial judge, counsel conceded that the alleged "improper remarks" were made by the judge to counsel outside of the presence of the jury. The judge further noted that defendant never moved before trial to dismiss the indictment, as required by Rule 3:10-2(c). Nonetheless, the judge concluded that defendant's claim was contrary to legal precedent. See, e.g., State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictment based largely or wholly on hearsay testimony.").
The judge ruled that defendant's remaining claims of ineffective assistance of trial and appellate counsel were "baseless," with "no evidence supporting any of the allegations." The judge therefore concluded that defendant failed to present a "prima facie" case of ineffective assistance and there was no need for an evidentiary hearing. He denied defendant's petition and this appeal followed.
Defendant raises the following points for our consideration:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Counsel failed to adequately review discovery and prepare an intoxication defense
B. Counsel failed to obtain a psychiatric examination and failed to investigate and prepare a diminished capacity defense
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4
We have considered these arguments in light of the record and applicable legal standards. They lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm and add only the following comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong 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). First, he 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). Second, a defendant must 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. He must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698) (internal quotation marks omitted). We apply the same standard to defendant's claims of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, 194 N.J. 444 (2008).
While a "claim of ineffective assistance of trial and appellate counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); see also R. 3:22-10. A defendant must establish a prima facie case of ineffective assistance before an evidentiary hearing is required. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). 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), and "must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz test. Preciose, supra, 129 N.J. at 463. "[T]he court is not obligated to conduct an evidentiary hearing to allow [the] defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008).
Defendant's claims that trial counsel failed to review discovery, prepare an intoxication defense, or investigate and prepare a diminished capacity defense are based solely upon testimony at trial. In particular, defendant notes that he was arrested after a high-speed chase during which he drove erratically, drugs and alcohol were found in the car, and the arresting police officer testified defendant was under the influence of some narcotic at the time of his arrest. Defendant cites his pre-sentence investigative report in which he admitted to using crack cocaine for several years.
Despite the trial evidence referred to by defendant, his specific claims of ineffective assistance of counsel were not supported by the record and the PCR judge properly characterized them as bald assertions. Cummings, supra, 321 N.J. Super. 170. More importantly, defendant has failed to support the assertions now made with any specific facts or expert opinion buttressing the contention that his admitted drug use rose to the level that would support an intoxication or diminished capacity defense.
Defendant's claims of other errors, e.g., the judge's comments and his ruling on counsel's failure to file a motion to dismiss the indictment, are specious, as is the claim of cumulative errors. The argument that appellate counsel was ineffective is made without any specificity at all; there was no prima facie showing compelling an evidentiary hearing; and, since the judge considered the merits of defendant's petition, the argument raised in Point VI fails.