September 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY S. SCOTT, A/K/A MELVIN L. KING, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-10-1105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
Before Judges Cuff and St. John.
Defendant Anthony Scott appeals from the July 20, 2010 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 Ostrer in his oral opinion of July 16, 2010.
Following a guilty plea for one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, defendant is serving a term of twelve 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 appealed his sentence as excessive, and we affirmed. State v. Scott, No. A-2224-06 (App. Div. June 4, 2007), certif. denied, 192 N.J. 479 (2007).
Defendant's conviction arose from a January 2005, act of vaginal intercourse with the victim, S.J., then twelve years old, in East Windsor Township. At that time, defendant was living with S.J. and her mother. At his plea hearing, defendant contended that S.J. forced him to have vaginal intercourse with her by threatening to make false allegations against him. Subsequently, S.J. became pregnant and aborted the fetus. DNA samples collected from the fetus and defendant were tested by the New Jersey State Police, which demonstrated that defendant was the father. During the plea hearing, defendant contended he was not the father because he used a condom, "and that's why I was challenging the DNA evidence." He raised the issue of retesting the DNA evidence. However, defendant admitted he had vaginal sexual intercourse with S.J., when she was less than thirteen years old.
Defendant filed a pro se PCR petition on August 25, 2009, followed by PCR counsel's brief and appendix in support of his petition. Defendant asserted that trial counsel was ineffective because she failed to move to withdraw defendant's guilty plea, to investigate potential witnesses, and committed cumulative errors. Defendant offered three sworn statements, comprised primarily of hearsay, alleging a cousin or an uncle sexually assaulted S.J. However, none of the statements provided any exculpatory facts relative to defendant's guilt. On July 16, 2010, a non-evidentiary hearing was held. The PCR judge denied defendant's petition in an oral opinion, and entered an order memorializing the denial on July 20, 2010.
Judge Ostrer determined that "there [was] no necessity for a factual hearing and that defendant [had] failed to establish even a prima facie case of ineffective assistance of counsel, nor [had] he established prejudice that would entitle him to relief[.]" He further stated that defendant's insistence that he did not force S.J to have vaginal intercourse and that he did not father the child were not grounds for PCR relief. During defendant's Avenel interview, he admitted to sexually assaulting S.J. on multiple occasions. The PCR judge also noted the favorable sentence negotiated by defendant's trial counsel, given that defendant was charged with three counts of first degree aggravated sexual assault, and that he was sentenced "at the lower end of the sentencing range."
Defendant appeals from the denial of his PCR petition, and raises the following issues for our consideration:
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL FOR HIS POST-CONVICTION RELIEF PROCEEDINGS.
THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIMS AT THE POST CONVICTION RELIEF HEARING THAT HIS PLEA SHOULD BE WITHDRAWN.
DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens- Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court[.]"
Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here, as there was no evidentiary hearing and no credibility determinations were made.
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.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). 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. 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.
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).
First, we address defendant's claim that his trial counsel was ineffective for failing to fully investigate witnesses, request DNA retesting, or file a motion to withdraw his guilty plea. Although defendant asserts that trial counsel conducted an incomplete investigation, nothing is proffered to support that assertion. As to the argument that trial counsel was ineffective for not retesting the DNA, the DNA results coupled with the victim's testimony, would have provided the State with compelling evidence had the case proceeded to trial. Given that defendant provided a detailed factual basis for his guilty plea, and that at Avenel defendant admitted sexually assaulting the victim on multiple occasions, we see no reason to disturb the PCR judge's decision that trial counsel was not ineffective.
Defendant further argues that appellate counsel in his ESOA proceeding was ineffective for failing to file a plenary appeal raising the issue of withdrawal of defendant's guilty plea. Defendant asserts that he repeatedly stated at his plea hearing that he did not want to enter a guilty plea, and that the trial judge should not have accepted his plea. The record belies defendant's contention. The trial judge extensively examined defendant to ensure that he fully understood the implications of his plea, that the factual basis was sufficient, and that the plea was knowing and voluntary. The PCR judge noted that defendant "still hasn't denied even in his certification before this court now that he committed a first degree aggravated sexual assault against the victim let alone a colorable claim as opposed to a bald claim of innocence."
To prevail, defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. Consequently, defendant has not satisfied the first prong of the Strickland/Fritz test. See State v. Castagna, 187 N.J. 293, 314 (2006) (ineffective assistance requires a determination that counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case" (internal quotation marks and citation omitted)). Defendant presents no facts to support even a prima facie contention of ineffective assistance of trial counsel or appellate counsel.
We find defendant's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
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