NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-0036.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, 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, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Sapp-Peterson and Maven.
Defendant, Charles H. Rashid, appeals from the July 27, 2011 order denying his petition for post-conviction relief (PCR). We affirm.
Following a trial in 2004, defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); two counts of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) and (b)(4); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). Defendant was sentenced to an aggregate sixty-five-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In an unpublished opinion, we affirmed defendant's conviction, but vacated the sentence and remanded for re-sentencing because the court should not have considered, as an aggravating factor, N.J.S.A. 2C:44-1(a)(4). State v. Rashid, No. A-3853-04 (App. Div. September 5, 2008) (slip op. at 9-10). On November 21, 2008, the Supreme Court denied defendant's petition for certification. State v. Rashid, 197 N.J. 16 (2008).
On April 27, 2009, defendant filed a pro se PCR petition. Assigned counsel thereafter submitted a brief and appendix in support of the petition, which included certifications by defendant's counsel, as well as a written summary of a telephonic interview PCR counsel conducted of the former lead defense investigator. The court conducted oral argument on the issues raised in the PCR petition and subsequently issued a written decision denying defendant's request for an evidentiary hearing and denying the petition.
Judge Dennis V. Nieves rejected defendant's claim that trial counsel lacked sufficient experience to represent him, concluding that "[e]xperience alone cannot be used as a means by which effectiveness can be measured - a specific deficiency must be identified. Whether that deficiency is ultimately attributed to inexperience is irrelevant." Addressing defendant's contention that trial counsel was ineffective because he failed to exercise peremptory challenges to remove two particular jurors, the judge found that defendant presented no evidence demonstrating the "probability that the outcome would have been in any way different had these jurors not been on the panel."
Next, the court rejected defendant's challenges to trial counsel's strategic choices. According to defendant, these strategic choices included trial counsel's failure to reveal to the jury his extensive background with police, his failure to use information gathered by the defense investigator to disprove premeditation, and pursuing passion provocation manslaughter rather than a diminished capacity defense as was initially discussed with defendant. The court concluded that "[s]trategic choices made by counsel after thorough investigation of the relevant law and facts are 'virtually' unchallengeable."
Turning to defendant's claim that trial counsel neglected to explain the benefits of entering into a negotiated plea bargain with the State, the judge noted that defendant executed the pretrial memorandum, which expressly indicated that defendant faced life imprisonment with a sixty-seven-year period of parole ineligibility, contained the proposed plea offer of thirty-years imprisonment with a thirty-year period of parole ineligibility, and the possible consequences if defendant rejected the plea offer. Additionally, Judge Nieves observed that defendant initialed each page and signed the last page of the proposed plea bargain. ...