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State of New Jersey v. Esad Kolenovic

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 12, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ESAD KOLENOVIC, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0605.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 13, 2012

Before Judges Sapp-Peterson and St. John.

Defendant Esad Kolenovic appeals from the 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.

I.

Following a guilty plea to four counts of third-degree burglary, N.J.S.A. 2C:18-2; four counts of fourth-degree theft of credit cards, N.J.S.A. 2C:21-6(c)(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); fourth-degree hindering his own prosecution by giving false information, N.J.S.A. 2C:29-3(b)(4); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; fifteen counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h); third-degree theft by deception, N.J.S.A. 2C:20-4; third-degree theft of identity, N.J.S.A. 2C:21-17(a); second-degree obstruction of law, N.J.S.A. 2C:29-1; two counts of fourth-degree possession/sale of a simulated government document, N.J.S.A. 2C:21-2.1(d); fourth-degree receipt of stolen property, N.J.S.A. 2C:20-7; second-degree making of a simulated government document, N.J.S.A. 2C:21-2.1(b); and a disorderly persons offense of receipt of stolen property, N.J.S.A. 2C:20-7(a), defendant was sentenced, pursuant to a plea agreement, to an aggregate term of ten years subject to three years parole ineligibility.

Prior to his plea of guilty, defendant moved to dismiss the indictment on the ground that the State failed to comply with the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. Defendant was indicted in August 2004. Defendant posted bail in early September and two weeks later was detained in Florida on other charges. He was transferred back to New Jersey at the end of November 2005. A February 14, 2006 trial date was set in accordance with the IAD. He maintained that Florida officials delayed forwarding his request for disposition and that, pursuant to State v. Wells, 186 N.J. Super. 497, 502 (App. Div. 1982), Florida's non-compliance with the IAD required dismissal of the indictment. The trial judge denied his request.

Following the imposition of his sentence, defendant appealed, we affirmed his convictions but remanded to the trial court for resentencing on one count of the indictment. State v. Kolenovic, No. A-2183-07 (App. Div. Aug. 14, 2009), certif. denied, 200 N.J. 549 (2009).

In our opinion we stated:

Moreover, defendant here did not produce any documentary evidence to support his claim that the IAD request was initiated in March and forwarded in June. Indeed, the documents purporting to be defendant's request under the IAD are undated. The envelope in which defendant mailed the documents to his attorney were post-marked in Miami on July 21, 2005. In short, defendant produced no documentary evidence to support his claim that the IAD request was initiated in March and mishandled by Florida authorities. Accordingly, the trial court's denial of defendant's motion to dismiss the indictment is affirmed.

II.

These charges arose out of a series of burglaries and thefts from the men's locker room of the Warren Health & Racquet Club in Somerset County. Club members discovered their credit cards missing from their lockers after returning from a workout. Club management contacted the police and approved the installation of surveillance cameras in an area outside the men's locker room. Defendant was photographed entering and leaving the men's locker room on several occasions. He was not a member of the club and did not have permission to be on the premises. A police investigation disclosed that defendant made numerous fraudulent purchases with club members' stolen credit cards, purchasing a variety of items, including jewelry, computers, televisions, mattresses and home goods. Defendant was identified on store video cameras and by store employees, using the stolen credit cards in a variety of stores.

Defendant was arrested at the club on June 10, 2004, after managers, who were familiar with his surveillance photos, notified police that he was on the premises. The police searched a 1988 Chevy Suburban in the club parking lot that matched the description of defendant's car given by the employee of a mattress store where defendant had made a fraudulent credit card purchase. The police found a laptop computer in the Suburban that defendant had used to manufacture false driver's licenses.

Defendant filed a pro se PCR petition, letter brief, and appendix in support of his petition. Defendant asserted that trial counsel was ineffective because he failed to obtain certain documentary evidence to support his claim that the IAD request was initiated in March and forwarded in June 2005. A non-evidentiary hearing was held and Judge John H. Pursel denied defendant's petition in an written opinion filed on July 7, 2011.

Judge Pursel determined that defendant's "argument [was] without merit." He further found that "[t]he certified copy provided to [the] court by present PCR counsel [was] the same undated document attached to the prior trial counsel's motion." "Therefore, [the court found] that trial counsel provided effective assistance of counsel. Trial counsel obtained all available documents from the State of Florida regarding Petitioner's request under the IAD and attached those documents in support of the motion to dismiss the indictment." The PCR judge concluded that defendant "ha[d] not made a prima facie showing of ineffective assistance of counsel."

III.

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

POINT I

AN EVIDENTIARY HEARING WAS NECESSARY FOR THE APPELLANT TO ESTABLISH THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE INTERSTATE AGREEMENT ON DETAINERS ACT WAS VIOLATED BY THE STATE OF NEW JERSEY BY NOT HONORING THE TIME PERIODS FOR BRINGING THE DEFENDANT'S CASE TO TRIAL, WHEREFORE THE CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED.

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).

IV.

First, we address defendant's claim that his trial counsel was ineffective for failing to obtain certain documentary evidence to support his claim that the IAD request was initiated in March and forwarded in June 2005. Although defendant asserts that trial counsel conducted an incomplete investigation, nothing is proffered to support that assertion.

In his petition, defendant offered the same undated document attached to the prior trial counsel's motion. He offered nothing more then a bald assertion as to the timing of his IAD requests and proffered no proof.

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.

We find defendant's remaining contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

20121212

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