June 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
THOMAS DOMKE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-01-0018.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Reisner and Hayden.
Defendant Thomas Domke appeals from the October 25, 2011 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that, following a jury trial, defendant was convicted of one count of second-degree aggravated arson, N.J.S.A. 2C:17-1a; three counts of third-degree criminal mischief, N.J.S.A. 2C:17-3a; and one count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5). The charges were based on an incident where defendant set his girlfriend's home on fire after causing assorted property damage. We set forth the factual background to defendant's convictions in an earlier opinion:
Following a day-long argument with his girlfriend of nine years and commission of acts of domestic violence on her and property damage to her van, defendant returned to the apartment he shared with the girlfriend and her mother, ran the vehicle he was driving into a van that he owned, smashed various personal possessions in the apartment, and set fire to the mother's box springs and a living room love seat. As the fire swelled, defendant escaped from a window onto a first-floor roof, and after the police approached him, jumped from the roof to the ground, where he was tackled by police who were on the scene as the result of reports of the domestic violence and the auto collision. During the course of defendant's apprehension, a patrol officer received a laceration from a knife in defendant's pocket.
[State v. Domke, No. A-2918-04 (App. Div. July 25, 2006) (slip op. at 2).]
Defendant was sentenced to six years imprisonment with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act ("NERA") on the aggravated arson charge, and received concurrent four-year terms on the remaining charges. He appealed the conviction, arguing that the judge erred in failing to suppress the second statement he gave to police, and his sentence, claiming it was excessive. We rejected these arguments and affirmed defendant's conviction and sentence. Domke, supra, (slip op. at 16-17). Our Supreme Court denied defendant's petition for certification. State v. Domke, 189 N.J. 429 (2007).
On April 4, 2008, defendant filed a petition for PCR, contending that he received ineffective assistance of counsel. He claimed that his attorney "said nothing" about his ten successful polygraph tests and did not investigate witnesses to corroborate his allegations of excessive force by the police. Defendant asserted that, prior to the trial, the Public Defender's Office administered ten polygraph tests over the course of six months, and defendant was told "by the lady" who administered the polygraph that he "passed" all tests. According to defendant, his trial counsel was ineffective by not attempting to have the results of the polygraph tests admitted into evidence. Additionally, defendant claimed that he was severely beaten by the police in front of witnesses, whom his attorney failed to call to testify. The excessive force used by the officers, defendant asserted, caused him to feel coerced into giving a false confession, and his trial counsel did not pursue this issue.
Defendant's first PCR attorney chose not to file a brief in support of defendant's contentions, stating that he found nothing "that would add anything, to make a difference in this case." When the judge offered counsel an opportunity to prepare a brief, he refused, stating that he was ready to resolve the matter. Counsel referred to the results of the polygraph tests as "very dubious, " explaining that defendant's trial counsel had considered the test results and determined not to request that the prosecution enter into a stipulated polygraph. On the issue of excessive force resulting in a coerced confession, he reminded the judge that a Miranda hearing had been held that addressed the allegation of excessive force.
The PCR judge entered an order on October 17, 2008, denying the petition without an evidentiary hearing, and defendant appealed. We reversed and remanded, based upon State v. Rue, 175 N.J. 1, 19 (2002), finding that defendant's counsel did not perform his function adequately. State v. Domke, No. A-2699-09 (App. Div. April 8, 2011). We explained:
Here, defendant's attorney filed no brief on his behalf and made no attempt to advance his client's position before the court. We may not affirm the trial court's order simply because, on first blush, it may appear that defendant's chances of prevailing are unlikely. Defendant is entitled to have his attorney advocate on his behalf.
[Id. (slip op. at 6).]
Additionally, because the State also conceded at the hearing that there was insufficient evidence in the record to support a finding of aggravated assault, we reversed and vacated defendant's sentence on that charge.
On remand, defendant, through new PCR counsel, filed a PCR brief and participated at oral argument. He argued that trial counsel was deficient by failing "to discuss with the prosecutor the possibility of a stipulation to the entry of the polygraph evidence." Additionally, he claimed "[d]efense counsel should have investigated defendant's allegations and presented witnesses to challenge the aggravated assault and criminal mischief charges against defendant."
On October 25, 2011, the trial judge denied defendant's PCR petition without an evidentiary hearing, finding that defendant failed to establish a prima facie case of ineffective assistance of counsel. The judge observed that polygraph results are not admissible unless stipulated to by both parties and there was no evidence presented that the State was willing to agree to a stipulated polygraph. As such, the judge found that defendant's ineffective assistance claim on this point failed the first prong of the Strickland test. Additionally, the judge determined that defendant's claim regarding witnesses to the officers' alleged excessive force failed the Strickland test as no evidence showed what the alleged witnesses saw or how it would be relevant to the charges.
On appeal, defendant raises the following contentions:
POINT ONE: DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.
POINT TWO: DEFENDANT'S POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997). Without such a showing, no evidentiary hearing is required. See State v. Cummings, 321 N.J.Super. 154, 169 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland, which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Next, defendant must show that his attorney's deficient performance prejudiced his defense. Ibid.
To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide representation "within the range of competence demanded of attorneys in criminal cases." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763, 773 (1970)). To meet the second prong of the test, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). This exacting standard requires that the "error committed must be so serious as to undermine the court's confidence in the . . . result reached." Id. at 367 (citation omitted).
From our review of the entire record, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown that his trial attorney's or his remand PCR attorney's performance was deficient or resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We have carefully considered defendant's contentions in view of the applicable law and the record, and we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Generally, absent agreement of both parties, polygraph results may not be admitted in evidence in New Jersey, State v. A.O., 198 N.J. 69, 83 (2009), because serious questions about their reliability remain. State v. Domicz, 188 N.J. 285, 312 (2006). However, "when the State and defendant enter into a stipulation to have defendant submit to a polygraph test, and have the results introduced in evidence, such stipulation should be given effect" State v McDavitt 62 N.J. 36 46 (1972) The stipulation must be "clear unequivocal and complete freely entered into with full knowledge of the right to refuse the test and the consequences involved in taking it" Ibid
Here defendant has not provided any legally competent evidence concerning what the results of the polygraph tests demonstrated Additionally defendant has provided no evidence demonstrating that the prosecutor would have been willing to enter into a stipulation to have a joint polygraph test administered Furthermore defendant has not provided any certifications from the witnesses he claims would have testified on his behalf as to the officers' use of force Furthermore while he claims that his remand PCR counsel did not vigorously represent him defendant failed to show that he was prejudiced by his counsel's performance Instead defendant merely makes a series of bald assertions without supporting his claims See Cummings supra 321
N.J.Super. at 170 As a result defendant has not presented a prima facie case that either his trial or remand PCR attorney was deficient or that any alleged deficiencies resulted in prejudice which affected the outcome of his trial or the PCR petition