August 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAKEEM F. TOLIVER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-1279.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2012 -
Before Judges Lihotz and Waugh.
Defendant Hakeem F. Toliver appeals from the denial of his post-conviction relief (PCR) petition. We affirm.
Following a jury trial, defendant was convicted of various drug offenses, stemming from his sale of controlled dangerous substances (cocaine and marijuana) to undercover police officers on two occasions. After merger, he was sentenced to an aggregate of fourteen years in prison. On appeal, defendant's conviction and sentence were affirmed. State v. Toliver, No. A-6018-04 (App. Div. May 16, 2007).
Defendant filed for PCR and counsel was appointed. The judge, who had presided over defendant's trial, denied defendant's petition without an evidentiary hearing.
On appeal, defendant argues:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.
(a) Failure to communicate sufficiently with Defendant so he could assist in his own defense.
(b) Defendant was effectively deprived from testifying for his own defense at trial.
(c) Failure to file a motion to dismiss Count 2 of the indictment.
THE SENTENCE IMPOSED BY THE TRIAL COURT WAS MANIFESTLY EXCESSIVE AND THEREFORE ILLEGAL. POINT III
REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
The burden of proving the "incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).]
Defendant's PCR petition asserts counsel was negligent in failing to communicate with him and failing to move to dismiss an erroneous count in the indictment. He suggests counsel met with him briefly before trial and did not discuss the discovery and proffered testimony of the State's case with him. He also suggests counsel developed no trial strategy except to discredit the State's witnesses.
Defendant offers no supporting evidence showing what actions by counsel were deficient or how those alleged deficiencies undermined the proceeding. He presents no evidence which should have been offered and does not articulate an alternative strategy that should have been pursued.
Bald assertions and "purely speculative deficiencies in representation are insufficient to justify reversal." Fritz, supra, 105 N.J. at 64. Further, defendant fails to demonstrate how specific errors undermined the reliability of the proceeding. Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 n.26, 80 L. Ed. 2d at 668 n.26.
We also reject defendant's argument that counsel's "failure to address the validity of count two" of the indictment, charging second-degree distribution of CDS on or near a public park, N.J.S.A. 2C:35-5 and -7.1, warrants relief. The error was prior to sentencing, trial counsel advised there was an error in the degree of the offense as listed; that is, the crime was a third-degree, not a second-degree offense. The State conceded the issue, the court properly corrected the judgment of conviction and imposed a sentence based on the correct offense. We determine no prejudice resulted.
Defendant's contention, alleging he was not advised of his right to testify, is belied by the record. During trial the court paused to discuss this issue outside the presence of the jury. Defendant's statements to the trial judge clearly reflect his affirmative understanding of his right and the consequence of a waiver.
The PCR court correctly determined defendant failed to meet both prongs of the Strickland/Fritz test, and the record fully supports the court's findings and conclusions. Consequently, an evidentiary hearing was not necessary.
Defendant next contends his sentence is excessive because the judge improperly applied aggravating factors. This contention is procedurally barred. "[M]ere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground of [PCR] and can only be raised on direct appeal from the conviction." State v. Clark, 65 N.J. 426, 437 (1974).
Nevertheless, assuming the trial judge improperly imposed
aggravating factor eleven, the aggravating factors preponderate over the non-existent mitigating factors. The term imposed was within the applicable range and does not reflect an abuse of discretion. State v. Pierce, 188 N.J. 155, 169 (2006); State v. Roth, 95 N.J. 334, 363-64 (1984). Based upon our review of the record, we find no reason to disturb the sentence imposed.
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