On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1705.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013
Before Judges Reisner and Harris.
Defendant Michael Eitel appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On May 17, 2007, a Camden County grand jury issued an eleven-count indictment against Eitel for, among other things, first-degree kidnapping, first-degree carjacking, and second-degree endangering the welfare of a child. The charges in the indictment were based upon two incidents that allegedly occurred in September and November 2006, in which the putative victims were Eitel's former paramour and her child.
On the day scheduled for trial, Eitel pled guilty to a single count of
second-degree possession of a weapon -- a firearm -- for an unlawful
purpose, N.J.S.A. 2C:39-4(a), even though only a gun clip, and not a
gun itself, was recovered during the police investigation.*fn1
Pursuant to the plea arrangement, on January 30, 2009, Eitel
was sentenced to a term of five years imprisonment with a three-year
parole disqualifier pursuant to N.J.S.A. 2C:43-6(c). The ten remaining
counts of the indictment were dismissed.
Eitel elected to forego a direct appeal, and instead, in May 2009, sought post-conviction relief in the Law Division. Proceeding pro se, Eitel initially sought only a review of his sentence pursuant to N.J.S.A. 2C:43-6.2 and stated, "I would like a reduce [sic] in sentence or sentence overturned."
After PCR counsel was assigned, the focus of Eitel's application turned to whether he suffered the ineffective assistance of counsel. Specifically, Eitel claimed that his prior attorney failed to adequately investigate the facts of the case, and neglected to interview three important witnesses, particularly missing the defense of whether he actually ever possessed a gun. Assigned PCR counsel also argued that Eitel should be allowed to withdraw his guilty plea because he was pressured into pleading guilty by a lawyer who told him that "his case was hopeless." Finally, PCR counsel claimed that Eitel was entitled to a review of his sentence because he was "a first-time Graves Act offender."
A hearing was conducted in July 2010, following which Judge Michele M. Fox rendered a lengthy oral decision on August 16, 2010. Judge Fox recounted the nature of the offenses outlined in the indictment and accurately recited the procedural history leading to the filing of Eitel's petition for post-conviction relief. The judge notably commented upon the lack of any certifications from either Eitel or the supposed important witnesses whose testimony would have assisted the defense. The only certification that Eitel submitted was from a purported expert, who opined that a fingerprint analysis of the gun clip found by the police might produce a "ten percent success rate" in recovering latent fingerprints. Eitel argued that because his trial attorney never had the gun clip examined for fingerprints, another possible defense, that he was not in possession of a firearm, was lost.
Judge Fox found that Eitel had not demonstrated that his attorney's assistance was not within the range of competence demanded of attorneys in criminal cases. Additionally, she found:
In light of the evidence against the defendant available at trial and a drastic reduction of the defendant's potential sentence exposure as a result of the defendant's negotiated plea agreement, the defendant cannot show a "reasonable probability that but for counsel's error defendant would not have pled guilty and would've insisted on going to trial." [State v.] DiFrisco,  137 N.J. [434,] 457 [(1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)].
In addition, the judge reviewed the plea allocution in detail and found that Eitel not only failed to provide competent evidence of his "colorable claim of innocence," but also did not "[meet] his burden" to withdraw his guilty plea. ...