November 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUCMANE DAZILME, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-09-1111.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 10, 2012
Before Judges Lihotz and Ostrer.
Defendant Lucmane Dazilme appeals from the July 12, 2010 order denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER HIS TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO DISMISS THE INDICTMENT.
D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING [TO] ADVISE DEFENDANT THAT HE HAD A RIGHT TO TESTIFY ON HIS OWN BEHALF.
E. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL DEFENDANT'S GIRLFRIEND, KEISHA ANDERSON, AS A WITNESS.
F. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
G. CUMULATIVE ERROR.
Tried by a jury, defendant was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. After merger, defendant was sentenced on April 12, 2004, to a nine-year term in state prison, subject to a four-year period of parole ineligibility, along with applicable fines, assessments, and a six-month driver's license suspension. We affirmed defendant's conviction, but remanded for reconsideration of defendant's sentence in an unpublished opinion. State v. Dazilme, No. A-2691-04 (App. Div. June 29, 2007) (slip op. 2, 9).*fn1 Certification was not sought.
On February 6, 2009, defendant filed a petition for PCR, alleging ineffective assistance of trial counsel. Specifically defendant asserted counsel: (1) failed to properly investigate and thereafter present exculpatory trial testimony from defendant's then girlfriend, Keisha Anderson; (2) improperly persuaded defendant to refrain from testifying on his own behalf; and (3) failed to challenge the propriety of indictment and grand jury proceedings. Defendant also argued appellate counsel provided ineffective assistance with respect to his failure to properly present the issues raised in the PCR petition, which could have been raised on direct appeal.
Finally, defendant contended the cumulative effect of counsels' errors required a new trial. Defendant requested an evidentiary hearing be scheduled to present the PCR issues.
The PCR judge denied defendant's petition and the request for an evidentiary hearing, finding a prima facie case for ineffective assistance of trial counsel was not established. This appeal followed.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). 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 (citations omitted), satisfying the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693) (internal quotation marks omitted). Second, a defendant must prove he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. That is, the defendant must show by a "reasonable probability" the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58. "Unless both parts of the [Strickland] test are established, defendant's claim must fail." State v. Echols, 199 N.J. 344, 358 (2009) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
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).
On appeal, defendant generally argues the PCR judge erred in summarily rejecting his PCR petition without affording an evidentiary hearing. Specifically, he maintains his claims were not barred, and trial counsel was ineffective because she should have moved to dismiss the indictment, insufficiently advised him regarding his right to testify, and omitted calling his girlfriend as an alibi witness. Further, defendant asserts appellate counsel was ineffective for not raising these issues on direct appeal. We consider these contentions.
Defendant argues trial counsel should have moved to dismiss the indictment as it was based on hearsay testimony. We conclude defendant's assertion of ineffective assistance of trial and appellate counsel in failing to quash the indictment is unfounded.
Initially, we note the procedural bar of Rule 3:22-4 prohibits consideration of post-conviction claims for relief which could have been raised in prior proceedings, including on direct appeal. Post-conviction proceedings are not to be used as a substitute for appeals from conviction. State v. Smith, 43 N.J. 67, 74 (1964). Consequently, claims that trial counsel should have moved to quash the indictment are barred.
We also find no support that appellate counsel should have raised this challenge on appeal. The State's indictment was supported by the testimony of Larry Smith, one of the two officers on patrol who witnessed defendant's conduct and was involved in defendant's arrest. Officer Smith related the extent and nature of his observations, which formed the basis of the charges against defendant.
In his PCR pleadings, defendant does not identify the alleged offending portions of Officer Smith's grand jury testimony. Further, the inclusion of hearsay testimony offered to support an indictment will not be a basis for the indictment's dismissal. State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div.), certif. denied, 151 N.J. 466 (1997). Following our review, we discern no basis to suggest the indictment was manifestly deficient or palpably defective. See State v. Hogan, 336 N.J. Super. 319, 339 (App. Div.) (stating indictment returned by grand jury should be dismissed only if "manifestly deficient or palpably defective"), certif. denied, 167 N.J. 635 (2001).
Next, defendant maintains trial counsel persuaded him not to testify; he alleges she did so because she failed to adequately investigate the facts of his case. He ties this claim to trial counsel's alleged failure to present Anderson's testimony. Before the PCR judge, however, defendant acknowledged his pleadings omitted a statement from Anderson explaining the facts she would have offered if called as a witness.
In order to satisfy Strickland's first prong, a defendant must show how counsel's performance was deficient, not simply say it was so. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "[B]ald assertions" of ineffectiveness are not sufficient to establish a prima facie case warranting relief from a defendant's conviction. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, a defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance[,]" and such facts must be "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
Defendant does not state what counsel did or said to exert the alleged pressure. On the contrary, the record unequivocally supports the PCR court's finding that defendant understood his right to present testimony and made a reasoned decision not to do so. He acknowledged counsel advised him not to do so, as it would enable the State to impeach his credibility by introducing his prior criminal convictions. See State v. Taplin, 230 N.J. Super. 95, 98-99 (App Div. 1988) (observing defendant's motivation in not testifying on his own behalf "typically" results from a desire to keep his prior criminal record out of evidence). Thereafter, at defendant's suggestion that he needed to consider whether to accept and follow counsel's advice or whether he would take the stand, the trial judge adjourned the proceeding to allow him to decide. When the matter resumed, defendant was unwavering in his response: he declined to testify.
We view counsel's advice in this regard as a strategic trial decision. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds, State v. Czachor, 82 N.J. 392 (1980)). See also State v. Perry, 124 N.J. 128, 153 (1991) (refusing to second-guess counsel's trial strategy). Defendant's unsupported assertions of counsel's deficient professional assistance fail to satisfy the first prong of the Strickland/Fritz test. In fact, he must demonstrate counsel's action "did not equate to sound trial strategy." State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks and citations omitted).
Regarding the failure to produce Anderson, defendant acknowledged he could not produce Anderson's certification supporting the facts he proffered. "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "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). The lack of factual support defeats defendant's assertion of deficient representation. State v. Petrozelli, 351 N.J. Super. 14, 23-25 (App. Div. 2002) (holding factual support by affidavits or certifications based upon personal knowledge must be presented to provide an adequate basis on which to rest a decision that counsel failed to call witnesses at trial).
We have considered the remaining issues raised by defendant and found they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Finally, defendant's failure to present a prima facie claim of ineffective assistance obviates the necessity of ordering an evidentiary hearing. Preciose, supra, 129 N.J. at 462-64.