On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-01-0043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2011
Before Judges Messano and Espinosa.
We remanded defendant Michael Brown's petition for post-conviction relief (PCR) for an evidentiary hearing in our prior opinion. State v. Brown, No. A-1700-07 (App. Div. June 30, 2009) (slip op. at 2) [Brown I]. Judge Robert B. Reed conducted the evidentiary hearing at which three witnesses testified:
Tawanda Wilfong, defendant's long-term girlfriend; Michael Brown, Jr., defendant's son; and Neill Hamilton, defendant's trial counsel. After considering all the evidence, Judge Reed dismissed defendant's PCR petition and this appeal followed.
Defendant presents the following argument for our consideration:
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL 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 provide some background. Defendant was convicted at trial of second-degree robbery, N.J.S.A. 2C:15-1; two counts of aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a). He was sentenced to an aggregate term of seven years imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. His conviction was affirmed on appeal, State v. Brown, No. A-0869-03 (App. Div. Oct. 8, 2004), and his petition for certification was denied. State v. Brown, 182 N.J. 427 (2005). He subsequently filed this PCR petition.
Defendant's PCR petition was supported by his and Wilfong's detailed certifications. In relevant part, defendant claimed that trial counsel provided ineffective assistance by failing to obtain defendant's medical records, which would have detailed injuries he suffered in an automobile accident fourteen months before the crime. Brown I, supra, (slip op. at 5). More importantly, defendant claimed trial counsel never adequately investigated the possible testimony of Wilfong and his son, neither of whom testified at trial, and both of whom were present when defendant fled from the scene of the theft, was apprehended by two police officers after a struggle, and subsequently arrested in the middle of Route 22. Id. (slip op. at 5-7). Defendant argued "that Wilfong's testimony was significant in undermining the officers' testimony as to what occurred on the highway, the only evidence that converted the theft [which defendant conceded occurred] into second-degree robbery." Id. (slip op. at 8).
The first PCR judge denied defendant's petition without an evidentiary hearing. Ibid. In reversing that decision, we held:
In short, based upon defendant's certifications . . . , he established that trial counsel never spoke to Wilfong at all, yet nevertheless concluded she was not credible because of her relationship to defendant. Having never contacted Wilfong, and absent some other explanation, that conclusion was not the product of reasonable decision-making[,] . . . and therefore defendant established the first prong of the Strickland/Fritz test. [Id. (slip op. at 11-12).]
We further concluded that defendant met the second prong of the Strickland/Fritz test, noting "it was the events that took place on the highway that were critical to determining whether defendant was indeed legally culpable of robbery, and it [was] those events to which Wilfong's testimony was significant." Id. (slip op. at 12). Because "[a] judgment as to Wilfong's ultimate credibility, and its potential for having led the jury to a different result, [was] something that ...