March 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OSBORNE WILLIAMS A/K/A OSBORNE WILLIAMS, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-09-2747.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Reisner and Simonelli.
Defendant Osborne Williams appeals from a February 19, 2009 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted for first-degree murder, and associated offenses, arising from the stabbing death of Elton Harper. On August 31, 2000, after a thorough voir dire concerning his complete satisfaction with his attorney's services, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a(1). At the plea hearing, defendant admitted that on February 5, 1999, he "got into a fight" with Harper and stabbed him to death.
At the sentencing hearing on October 20, 2000, the victim's relatives made statements concerning their loss, read written statements from the victim's two young children, and urged that defendant receive a sentence of life in prison. Defendant's attorney eloquently argued that defendant was genuinely remorseful and urged the court to sentence defendant pursuant to the plea agreement. Defendant likewise expressed his remorse to the court and apologized to the victim's family.
The sentencing range for aggravated manslaughter, N.J.S.A. 2C:11-4a(1), was between ten and thirty years in prison. N.J.S.A. 2C:11-4c. Consistent with the terms of the plea agreement, defendant was sentenced on October 20, 2000 to twenty-one years and six months in prison, eighty-five percent to be served without parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's direct appeal was heard on an Excessive Sentence Oral Argument calendar, and we affirmed the sentence. State v. Williams, No. A-3423-02 (App. Div. Jan. 11, 2005), certif. denied, 183 N.J. 257 (2005). Following the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005), the trial court reconsidered the sentence but imposed the same prison term. Defendant did not appeal from that sentence.*fn1
Defendant filed his first PCR petition in March 2008, more than seven years after the entry of the original judgment of conviction. His court-appointed counsel filed an amended PCR petition and a second amended petition asserting the following contentions.
First, defendant alleged that he told his trial counsel that he was in "great pain" and was deprived of medical care at the time he made a statement to the police. He argued that trial counsel was ineffective in failing to request a Miranda*fn2
hearing to challenge the admissibility of the statement, and in failing to reserve that issue for appeal as part of the plea agreement. However, defendant did not submit an affidavit or other legally competent evidence that he actually provided his counsel with the statement, and he did not explain how suppressing the statement would have changed the result of his case. There appears no dispute on this record that he stabbed the victim in front of at least two eyewitnesses.
He also contended that his counsel should have asserted that "the witness and his friend fought with Petitioner and that the injury was unintentional while fighting for the knife." He further asserted that his attorney should have interviewed a potential witness named Bobby Williams, "a man who told Petitioner's mother that the incident was a set-up." However, petitioner did not submit either a certification from his mother or a certification from Williams.
Defendant further argued that his attorney should have argued for a lower sentence and should have presented witnesses and other evidence in support of mitigating the sentence.
Again, he presented no legally competent evidence of what the witnesses would have said at the sentencing hearing, what the additional evidence would have consisted of, or how any additional information would have resulted in a lesser sentence. He also argued that he was entitled to be resentenced at a new sentencing hearing.
In a written opinion dated February 19, 2009, Judge Irvin J. Snyder found that the petition was untimely in light of the five-year time limit set forth in Rule 3:22-12. However, the judge also concluded that, even if the petition was considered timely in light of the 2007 resentencing, it was without merit.
Judge Snyder found that defendant had already raised the same sentencing arguments in the context of the 2007 resentencing proceeding, and in fact the PCR petition simply "incorporat[ed] the same brief he filed in that hearing." The court had already rejected those same arguments at the resentencing hearing on December 3, 2007. Therefore, Rule 3:22-5 barred defendant from re-raising the same issues in his PCR petition. He also concluded that the interests of justice did not warrant re-considering the issues petitioner was attempting to raise.
Judge Snyder found that defendant's remaining PCR contentions were bald assertions unsupported by affidavits and, therefore, did not present a prima facie case of ineffective assistance of counsel. See State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). He also found that it would not have mattered if counsel had argued that the victim fought with defendant and the injury was unintentional:
[A]ggravated manslaughter . . . does not require an intentional act, but rather a reckless act with a conscious disregard for the probability of causing death. By arming himself with a knife while trespassing in his ex-girlfriend's apartment, Petitioner recklessly caused the victim's death under circumstances manifesting extreme indifference to human life.
II On this appeal, defendant raises one issue:
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR POST--CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS APPLICATION.
Relying on State v. Rue, 175 N.J. 1, 18-19 (2002), defendant accuses his trial-level PCR counsel of ineffective assistance in failing to produce the certifications and other evidence that could have created a prima facie case of ineffective assistance of trial counsel. He also contends that his PCR counsel filed an inadequate brief with the PCR court. In conclusory fashion, defendant further argues that "counsel should have obtained details from [defendant] concerning his post-arrest medical treatment and investigated whether any documentation of same existed." He also contends that his counsel did not obtain the original trial file from the Office of the Public Defender to obtain "at a minimum" the names of possible witnesses who could have offered mitigating evidence at sentencing.
However, defendant offers absolutely no evidence to support these allegations. For example, he has not supported his brief with a certification attesting that his PCR counsel did not meet with him, or that the attorney did not obtain the trial file. While that attorney submitted a short brief to the PCR court, there is nothing in this record that suggests that he failed to raise any legal issues that defendant wanted him to raise, or that there existed evidence to support the theories that he did raise. As we observed in State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000):
We recognize that convicted defendants are strongly motivated to attack the validity of their convictions. Particularly after a conviction has been affirmed on direct appeal, an attorney representing a defendant in post-conviction relief proceedings may have little ammunition. Neither the Sixth Amendment nor our rules call for an attorney to be "effective" in terms of crafting a defense when none actually exists.
All that we require is that counsel give his best efforts to his client's cause.
On the record presented to us, there is no basis to conclude that PCR counsel's representation was deficient under the standards set forth in Rue, supra, 175 N.J. at 18-19. Accordingly, we will not disturb the February 19, 2009 order on appeal, which we affirm for the reasons stated at length in Judge Snyder's cogent written opinion.