On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-00205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 1, 2012
Before Judges Cuff and Waugh.
Defendant Benny Figueroa appeals from the denial of his petition for post-conviction relief (PCR). A jury found defendant guilty of third degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1); third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); two counts of third degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and third degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). He is serving an extended term of ten years in prison subject to a five-year period of parole ineligibility.
We affirmed his conviction on direct appeal, State v. Figueroa, No. A-4154-06 (App. Div. July 21, 2008). Defendant filed a pro se PCR petition on December 18, 2008, in which he asserted among other things that he never received notice that the State would request an extended term. Therefore, he argued the extended term was illegal. Assigned counsel submitted a brief in support of defendant's petition in which he argued that the trial judge should not have permitted the State to introduce the laboratory certificate after defendant rested his case. Counsel also contended that trial counsel provided ineffective assistance of counsel because he did not interview the co-defendant or conduct any pre-trial investigation of the charges against defendant.
Judge Ramona Santiago denied the petition. The judge found that defendant qualified for imposition of an extended term pursuant to either N.J.S.A. 2C:43-6f (mandatory extended term) or N.J.S.A. 2C:44-3a (discretionary extended term). The judge also held that defendant was not entitled to notice of the State's intention to seek an extended term because notice and a hearing are required only if the extended term is imposed in accordance with N.J.S.A. 2C:43-7.1, N.J.S.A. 2C:43-7.2, or N.J.S.A. 2C:44-5.1. Addressing defendant's contention about the introduction of the laboratory certificate, Judge Santiago held that Rule 3:22-5 barred this argument because it had been raised and addressed in his direct appeal. Finally, Judge Santiago rejected defendant's contention that trial counsel failed to conduct a thorough pre-trial investigation. The judge noted that defendant failed to produce any evidence that an investigation would have produced anything that would have altered the outcome of the trial.
On appeal, defendant raises the following arguments:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT HIS TRIAL, DIRECT APPEAL AND POST CONVICTION RELIEF PROCEEDINGS IN VIOLATION OF HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY STATE CONSTITUTIONS AND NEW JERSEY COURT RULES.
POINT TWO THE PCR COURT ERRED IN MAKING FACTUAL FINDINGS WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING.
Defendant argues that he was afforded ineffective assistance of counsel at trial, on direct appeal and during the PCR proceedings. Defendant contends that PCR counsel did not advance his sentencing argument, raised a procedurally barred argument, and failed to support the contention that trial counsel was ill-prepared to represent defendant at trial. Defendant argues appellate counsel was ineffective because he failed to appeal the sentence imposed and failed to request reconstruction of the sentencing hearing transcript. Finally, defendant contends Judge Santiago should have conducted a plenary hearing.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Strickland, supra, 466 U.S. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, ¶ 10.
In order to establish ineffective assistance of counsel a defendant must prove that 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors altered the outcome. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Allah, 170 N.J. 269, 283 (2002). With respect to the second prong, the defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial"; rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). There is a strong ...