On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-04-1200.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 7, 2012 -
Before Judges Axelrad and Ostrer.
Defendant Darryl Brooks appeals from the February 26, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) following an evidentiary hearing. He had unsuccessfully argued that trial counsel was ineffective in failing to consult with him and failing to file a timely direct appeal. We affirm.
Defendant was convicted by a jury of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count two). Prior to trial, the State had dismissed count three, second-degree possession of CDS with intent to distribute, based on a successful suppression motion by defendant, and a mistrial was declared with respect to count one, fourth-degree resisting arrest. On May 16, 2008, defendant was sentenced by Judge Samuel D. Natal to a five-year custodial term with a two-year period of parole ineligibility, and appropriate fines and penalties.*fn1
Defendant did not file a direct appeal. On May 14, 2009, defendant filed a pro se PCR petition, supplemented with a brief by counsel, arguing ineffective assistance of trial counsel. According to defendant, counsel failed to adequately prepare for trial and consult with him, and failed to file a direct appeal on his behalf. Judge Natal afforded defendant an evidentiary hearing. Defendant testified about the lack of attorney visits and consultations while he was incarcerated, which he believed affected their ability to strategize a defense. He also detailed the requests he and his wife made of trial counsel to file a direct appeal on his behalf, which was not done.
Following the hearing, Judge Natal denied defendant's petition, articulating a lengthy explanation for his ruling. He briefly recited the facts, namely, that the police went to a motel to serve an arrest warrant on defendant, identified themselves as officers when he exited the building, and he attempted to flee, dropping two small bags containing cocaine. Defendant then consented to a search of his hotel room, which revealed a significant quantity of cocaine and drug paraphernalia, resulting in a charge that was dismissed after trial counsel successfully moved to suppress.
The judge did not find defendant's argument credible that he did not have the opportunity to speak with trial counsel, noting defendant had about fifteen appearances between his arraignment and sentencing. The judge noted that on May 15, 2007, in particular, defendant appeared for arraignment, spoke with defense counsel, and then left and became a fugitive until sometime in July 2007. The judge further found that defense counsel was extremely effective in his suppression motion, which resulted in the State dismissing the most serious charge. By argument to the jury, he did present the requested defense that the drugs had not been fingerprinted.
Overall, the judge found that defendant's claims were nothing more than bare allegations, which were insufficient to support a PCR application. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999). Nor did defendant explain how any additional strategizing with counsel or actions by counsel would have changed the outcome of his trial. Accordingly, Judge Natal was satisfied defendant failed to establish ineffective assistance of trial counsel under the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).
The judge additionally found baseless defendant's contention that trial counsel had failed to file a direct appeal on his behalf, noting that defendant did not produce at the PCR hearing copies of any documents or requests to file an appeal that he purportedly sent to trial counsel. Nevertheless, the judge was satisfied that defendant failed to show prejudice because he still could have exercised his right to appeal even though he was procedurally out of time. See State v. Altman, 181 N.J. Super. 539, 541 (App. Div. 1981). This appeal ensued.
Defendant raises the following arguments on appeal:
THE POST CONVICTION RELIEF COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN ...