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State of New Jersey v. Dashawn George

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 29, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DASHAWN GEORGE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0803.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 18, 2012

Before Judges Waugh and St. John.

Defendant Dashawn George appeals from the November 30, 2009 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm the denial of his petition substantially for the reasons set forth by Judge DePascale in his oral opinion of November 12, 2009.

I.

Following a guilty plea for one count of first-degree armed robbery, N.J.S.A. 2C:15-1, defendant is serving a term of ten years incarceration, with eighty-five percent of that term subject to parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Following the imposition of his sentence, defendant filed a direct appeal, and we affirmed. State v. George, No. A-2707-06 (App. Div. Jan. 9, 2009), certif. denied, 198 N.J. 474 (2009).

Defendant's conviction arose from an armed robbery, which occurred in the early morning hours of September 23, 2004. While on patrol, police Officers Vincent Glenn and John Entman received a call regarding a robbery on Kennedy Boulevard in Jersey City, involving three masked and armed African-American males. While driving toward Kennedy Boulevard, the officers observed a blue Ford Explorer at the intersection of State Highway 139 and Collard Street. According to Glenn, the Explorer was traveling at a high rate of speed with its lights off. Glenn activated his emergency overhead lights and stopped the Explorer after pursuing it for a few blocks. As he approached the driver's side, Glenn observed five male occupants, and a black ski-mask on the dashboard. Entman, who approached the passenger side, removed the front seat passenger, performed a pat-down, and discovered a gun in his waistband. Upon removing the other occupants from the vehicle, the driver was found to possess a handgun, and three revolvers were recovered in the back seat. Purses, wallets, and jewelry were also found in the rear of the Explorer.

The police contacted two women whose identification was found in the purses and learned that a second robbery, involving these two women and a man, had occurred that same evening. The women informed police that their purses and other personal property were stolen by three to five masked African-American males carrying guns.

Following his arrest, three juvenile complaints were filed against defendant, who was seventeen years old at the time of the offense, charging him with three counts of armed robbery and weapons offenses. The State applied to the Family Part to have the juvenile complaints against defendant waived to the Law Division. The State's applications were granted by Judge Baber, and defendant was subsequently indicted and charged with armed robbery.

Defendant unsuccessfully moved to suppress the evidence seized as a result of the traffic stop leading to his arrest. He subsequently pled guilty to a single count of first-degree armed robbery. In return for his guilty plea, the State agreed to recommend a period of incarceration of twelve years, subject to NERA, and dismissal of the other charges. At the plea hearing, defendant acknowledged his involvement in the armed robbery of Lisa Lugo, the owner of one of the purses found in the Explorer. He testified that, during the theft, he produced a handgun in order to frighten Lugo.

Defendant filed a pro se PCR petition on April 14, 2009, followed by PCR counsel's brief and appendix in support of his petition. On November 12, 2009, a non-evidentiary hearing was held, and the PCR judge denied defendant's petition in an oral opinion. On November 30, 2009, the court entered an order memorializing the denial.

II.

Defendant appeals from the denial of his PCR petition, and raises the following issues for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

As a preliminary matter, we note that "[p]ost-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 success 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. 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.'" Id. 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).

III.

During the PCR hearing, Judge DePascale thoroughly addressed defendant's arguments that (a) counsel in the juvenile proceedings was ineffective, and (b) trial counsel in the Law Division was ineffective. After appropriately setting forth the standards for ineffective assistance of counsel established in Strickland and Preciose, the PCR judge addressed the assertion that waiver counsel was ineffective because she did not effectively cross-examine Officers Glenn and Entman. The judge noted that while Entman did not testify at the hearing, waiver counsel cross-examined Glenn on issues pertinent to the waiver hearing but not issues related to suppression. The judge stated that this was appropriate given the nature of the waiver hearing, and determined that "counsel's performance with regard to this issue was not deficient. Even if the cross-examination of Glenn could be considered deficient, it could not have prejudiced the defendant as there was testimony . . . establishing probable cause." We agree.

The assertion that trial counsel failed to investigate whether the headlights of the vehicle were functioning properly at the time it was stopped by the police was also addressed by the judge. He determined that "this argument is completely without merit. The fact that the vehicle was being operated at night without its headlights illuminated was one of the factors which gave the officers a reason to stop the vehicle. Why they were not illuminated is a complete non-sequitur." Defendant asserts that trial counsel was ineffective for not investigating "the circumstances under which the headlight[s] of a Ford Explorer could be turned off when the vehicle was being driven." Defendant offers nothing to support those circumstances, and we will not engage in speculation. Glenn's testimony was clear that the lights were off.

Defendant further asserts that his trial counsel was ineffective by not obtaining information concerning the speed limit on Collard Street and Highway 139. We addressed this issue on direct appeal, commenting that Glenn followed the Ford Explorer onto Kennedy Boulevard, from its intersection with Highway 139 to its intersection with St. Paul's Avenue, during which time the vehicle was exceeding the 25 miles-per-hour speed limit on Kennedy Boulevard. George, supra, No. A-2707-06 (slip op. at 9). Failure to obtain the speed limit information does not constitute ineffective representation under the circumstances, and the lack of such information did not cause any prejudice to defendant.

Defendant also argues that trial counsel was ineffective for failing to obtain the police dispatch logs. However, defendant does not assert with any specificity what those logs would show or how they could affect the outcome of his case.

Additionally, defendant argues that trial counsel was ineffective when he "pressured petitioner to plead guilty." Defendant's plea negotiation and allocution belies this assertion. The trial judge thoroughly discussed with defendant all of his rights. The judge then asked him with regard to his guilty plea, "has anyone forced you or threatened you, put any kind of pressure on you to get you to do that?" Defendant responded, "No." Defendant was faced with a thirty-three count indictment, and his guilty plea to one count of armed robbery is a considered decision to minimize the threat of multiple convictions and a dramatically stiffer sentence. The record is clear that defendant was not pressured to plead guilty; rather, his plea was knowing, voluntary, and intelligent.

Finally, defendant argues that trial counsel was ineffective for failing to argue certain mitigating factors at the time of sentencing. The record reflects that trial counsel did argue mitigating factors. Even if we were to accept that trial counsel could have argued additional mitigating factors, defendant cannot show any prejudice because he received the minimum sentence. Further, on direct appeal, we reviewed the sentence, and determined there was no basis to overturn the sentence imposed.

Having reviewed defendant's remaining arguments in light of the applicable law and the record on appeal, we find them to be without merit, warranting no further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his oral decision on those issues. We note only that there was overwhelming evidence of guilt, and that none of the other issues raised by defendant "go[] to the very heart of the question of whether [defendant] was fairly convicted." State v. Riley, 216 N.J. Super. 383, 393 (App. Div. 1987).

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffective assistance either of waiver counsel or trial counsel within the Strickland/Fritz test. Accordingly, the PCR judge correctly concluded that an evidentiary hearing was not warranted and his petition was appropriately dismissed. See Preciose, supra, 129 N.J. at 462-63.

Affirmed.

20120829

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