Opinion
DOCKET NO. A-3155-13T4
04-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DION MILLER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1193. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Dion Miller appeals from an order denying his petition for post-conviction relief (PCR). We affirm.
I.
We previously set forth the facts in this matter in our decisions on defendant's direct appeal, State v. Miller, No. A- 4498-06 (App. Div. Aug. 10, 2010) (Miller I), in which we remanded the matter for further findings of fact and conclusions of law and retained jurisdiction, and State v. Miller, No. A-4498-06 (App. Div. Aug. 3, 2011) (Miller II), certif. denied. State v. Miller 209 N.J. 97 (2012). We briefly restate certain facts and procedural history relevant to this appeal.
At approximately 8:00 p.m. on January 5, 2003, seventy-four-year-old Romeo Cavero called his family and told them he had been attacked near his apartment building. When Cavero's family members arrived at the scene, Cavero was bleeding from his head and there were bloody footprints in the snow, a pool of blood on the sidewalk, and a bloody handprint in the vestibule of the building. Cavero told his family that he had been attacked from behind and his attackers left in a black car. Cavero's family called the police, who responded within one minute, arriving at approximately 8:16 p.m.
Defendant lived with his grandmother in the apartment across the hall from Cavero's apartment. Defendant was acquainted with Cavero, and was at the scene when Cavero's family arrived. After Cavero's family members called an ambulance, defendant approached Cavero's grandson, Eric Santiago, and said he tried to help Cavero and that "it wasn't [him]." Santiago noticed that defendant smelled of alcohol and was "rambling."
After police officers arrived, defendant approached Jersey City Police Patrolman Carmine Disbrow and asked about Cavero's condition. The officers listed defendant as a possible witness in their police report. Cavero was unable to identify his attacker but described the attacker as a black male who left in a black vehicle. Cavero was transported to the hospital, fell into a coma, and died on January 9, 2003, of complications from multiple blunt force trauma to his head.
On January 9, 2003, Hudson County Prosecutor's Office, Homicide Division Detectives Martin D'Angelo, Sean Means, and William Heaney questioned defendant regarding the incident. Defendant provided three recorded statements to the detectives over the course of seventeen hours. In his first statement, defendant said he was acting as a look-out for three friends who struck Cavero in the head with Cavero's cane, robbed Cavero, and left in a black pick-up truck. The individuals identified by defendant were interviewed by police and were not deemed suspects because of information subsequently learned during the investigation.
During defendant's second statement to the detectives, he admitted striking Cavero in the head with the cane three to six times but denied taking Cavero's money. In defendant's third statement, he said that he struck Cavero in the head, took his money, and left to go to a liquor store but dropped the money in a panic and returned to the scene to check on Cavero.
Defendant was charged in an indictment with first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four).
Defendant was represented on the indictment by Anthony R. Gualano. Counsel filed a motion to suppress defendant's statements alleging defendant did not knowingly and voluntarily waive his Miranda rights. The motion was denied after an evidentiary hearing.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Counsel requested a N.J.R.E. 104(a) hearing on the admissibility of testimony by Heaney regarding other robberies that had occurred around January 5, 2003, under circumstances similar to those resulting in Cavero's murder. The court conducted the hearing over the course of two days, during which Heaney testified regarding several other robberies that occurred in Jersey City around the time Cavero was murdered, including one incident that Heaney believed to have been perpetrated with the same modus operandi as that of the individual(s) who murdered Cavero.
Heaney testified that in late January or February 2003, a woman reported that as she entered her residence a person got out of a dark colored car, struck her in the head with a heavy object, and she went into a coma. Heaney believed that the woman's case was similar to Cavero's because Cavero reported that he was approached from behind, struck with an object, and the attacker left in a dark colored car. Heaney testified that it was protocol for the homicide detectives to compare their cases to robbery investigations to determine if there were any similarities warranting further investigation.
Heaney's investigation revealed that two suspects, Tyrone Caldwell and David Brown, were arrested for robberies in the East District of Jersey City which occurred during the same week as the incident involving Cavero, who lived in the South District of Jersey City. In Heaney's view, one of the robberies for which Caldwell and Brown were charged had similarities to the Cavero homicide. Heaney reported his concerns and investigation to his supervisor, who advised him not to pursue any further investigation because he was satisfied defendant was responsible for Cavero's death based on defendant's statements to the detectives. Heaney subsequently reiterated his concerns to his supervisor, who did not respond. Heaney did not report his concerns to anyone else or to the assistant prosecutor assigned to defendant's case.
Heaney testified during the hearing that in his opinion defendant's case required further investigation because defendant mentioned in his first statement that other people, who may have been Caldwell and Brown, were involved in the incident that resulted in Cavero's death. However, the court noted that the individuals defendant identified as being involved in the assault on Cavero were questioned and released without being charged. The court denied defendant's application to introduce Heaney's testimony at trial about his investigation of the other robberies.
The case proceeded to trial, during which defense counsel did not present an alibi defense. The jury was unable to reach a verdict.
Defendant subsequently obtained new defense counsel, Louis Serterides, and the matter was reassigned to a different judge. Counsel filed a motion to suppress defendant's statements, challenging the sufficiency of the Miranda warnings he was provided by the detectives. The court denied defendant's motion, finding that he was "fully and completely advised of his rights and he knowingly and voluntarily agreed to waive them."
During defendant's second trial, the State played defendant's recorded statements for the jury. Defense counsel did not present an alibi defense or any alibi witnesses. Defendant called Heaney as his sole witness and attempted to question Heaney about his investigation into the other robberies that occurred around the time of Cavero's January 5, 2003 murder. The trial court did not permit Heaney to testify regarding any other investigations, stating that the issue had been ruled on by the first judge and therefore was "barred."
The jury found defendant guilty of felony murder, armed robbery, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. At sentencing the judge merged defendant's weapons convictions into his conviction for armed robbery, and merged the robbery conviction into the felony murder conviction, for purposes of sentencing. The court sentenced defendant to a thirty-year custodial term on the felony-murder conviction with a thirty-year period of parole ineligibility.
Defendant appealed his conviction and sentence with the assistance of appellate counsel, challenging the court's charge to the jury and arguing that the incriminating statements he provided to investigators of the Hudson County Prosecutor's Office should have been suppressed because he was not informed of the Miranda warnings before he was in custody. In an unpublished decision, we remanded the matter for further fact-finding "respecting the moment defendant was taken into custody" to permit our review of defendant's Miranda arguments, and retained jurisdiction. Miller I, supra, slip op. at 51-52.
On remand, the trial court made detailed factual findings and concluded that defendant's statements were given in accordance with the requirements of Miranda. We affirmed. Miller II, supra, slip op. 1. The Supreme Court denied certification. Miller, supra, 209 N.J. 97.
II.
Defendant filed a pro se petition for PCR and was assigned counsel. In defendant's supplemental certification and supporting brief, he alleged he received ineffective assistance of counsel because his trial attorney failed to investigate his alibi defense and failed to call alibi witnesses at trial. Defendant submitted four reports from an investigator detailing the purported statements of defendant's sisters, Kinyetta Miller, Melany Carter, and Leticia Miller, and niece, Melinae Miller.
Defendant also alleged he was denied the effective assistance of appellate counsel. He argued his appellate attorney failed to argue on direct appeal that the trial court erred in barring Heaney's testimony regarding what defendant claims was evidence of third-party guilt.
The PCR court conducted a three-day evidentiary hearing limited to defendant's argument regarding his trial counsel's ineffectiveness. Defendant's sisters and niece testified regarding his alleged alibi and the attorneys who represented him during his first and second trials also testified.
Kinyetta Miller testified that on January 5, 2003, she lived with her sisters Melany and Leticia in a house which counsel stipulated was one-half of a mile from the scene of Cavero's murder, and about a twelve-minute walk and a three-minute car drive to the scene. Kinyetta Miller recalled that defendant came to the house on January 5, 2003, in the evening at some time between 6:00 p.m and 7:00 p.m. On two occasions, she advised defendant that their grandmother had called and requested that defendant return home to assist her in getting into bed. The last time she saw defendant on January 5, 2003, was when she advised him on the second occasion that he should return home to assist their grandmother. Based upon Kinyetta Miller's testimony, that occurred no later than 7:45 p.m. She testified she was able to recall the times based on her recollection of the television programs she was watching as the events occurred.
Leticia's daughter, Melinae Miller, also lived in the house.
Melany Carter, Leticia Miller, and Melinae Miller testified to seeing defendant at their home at a time between 5:00 p.m. and 6:30 p.m. and stated that defendant was shoveling the snow or was about to shovel the snow. Melinae Miller recalled seeing defendant eating food before he went outside to shovel. Melany Carter and Leticia Miller testified that when they saw defendant he was drinking a beer. None of the witnesses were able to testify precisely as to the time defendant left the home other than to state that by 8:00 p.m. or 8:30 p.m. the snow had been shoveled from the steps and defendant was no longer present.
Gualano testified about his decision not to present an alibi defense during defendant's first trial. Gualano explained that defendant's sisters approached him and "there was a question as to whether or not from the point that [defendant] had been at [his sisters'] home, to the point that he left, . . . there would have been an alibi established." Gualano sent an investigator to interview Kinyetta Miller, Melany Carter, Leticia Miller, and Melinae Miller. Upon reviewing the investigator's reports regarding the witnesses' statements, he decided there was not enough to establish an alibi, and chose as a matter of strategy to assert a different defense, which resulted in a mistrial.
Defendant's counsel for the second trial, Serterides, testified that he reviewed the statements of the potential alibi witnesses and discussed with Gualano the possible assertion of an alibi defense. Gualano told Serterides that because the witnesses were relatives and the facts elicited in the statements were not sufficiently strong to establish defendant's presence at his sisters' home at the time of the murder, an alibi defense was not viable.
Serterides relied on his review of the records, his consultation with Gualano, his many years of experience as a criminal defense attorney, and evidence that was inconsistent with a logical position that defendant could not have been present at the scene, to conclude that defendant did not have a viable alibi defense. Serterides believed he spoke with defendant about the alibi witnesses, the statements his sisters and niece gave to the investigator, and Gualano's opinion with regard to the alibi defense, and defendant did not express a "vociferous" opinion about not pursuing an alibi defense.
Serterides testified that if the statements given by the witnesses — that defendant was at their house, eating food, speaking with relatives, and shoveling snow — were more specific as to the time defendant was present, they may have supported a defense that defendant was in another place and therefore could not have committed the crimes. Serterides also testified that defendant's multiple statements admitting his presence at the scene of Cavero's murder, defendant's admissions he committed the murder, and the eyewitness accounts of defendant being present at the scene immediately after Cavero reported the incident, would have undermined the assertion of an alibi defense and would have required defendant to assert inconsistent versions of the facts supporting his defense that Cavero knew him but did not identify him as the perpetrator to the police.
At the conclusion of the hearing, the PCR judge rendered an oral opinion finding that the purported alibi witnesses could only provide an approximate time for defendant's arrival and departure from their home, with the latest possible departure at approximately 7:45 p.m. on January 5, 2003, which would have given defendant thirty-six minutes to get to the crime scene which was one-half of a mile away and a twelve-minute walk or three-minute car drive. The court also found that presentation of the purported alibi defense would have required trial counsel to explain how defendant could have been at the crime scene assisting the victim and at his sisters' home at the same time.
This time approximation is based on the latest time testified to with any degree of certainty that defendant left his sisters' house, 7:45 p.m., and the time reflected in the responding officers' incident report at 8:16 p.m. --------
Rather than provide inconsistent theories, defendant's trial counsel chose to present a defense based upon undisputed facts in evidence: the defendant had been drinking the night of the crime; the defendant and victim were acquainted with each other; and the defendant was present with the victim who was conscious when police arrived and the victim did not identify defendant as his assailant, but stated that the assailant fled in a black pick-up truck. The judge found that defendant had not been denied the effective assistance of trial counsel because counsel made a reasonable strategic decision not to assert an alibi defense.
The PCR court also rejected defendant's claim that his appellate counsel was ineffective because Heaney's testimony regarding his investigation of other robberies was not admissible evidence of third-party guilt and thus the trial court's preclusion of that testimony could not have been successfully appealed. The court entered an order denying defendant's PCR petition. This appeal followed.
III.
On appeal, defendant argues:
POINT I:
POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED WHERE TRIAL COUNSEL FAILED TO CONDUCT AN INDEPENDENT EVALUATION OF THE ALIBI WITNESSES, FAILED TO FILE A NOTICE OF ALIBI, AND FAILED TO PRESENT AN ALIBI DEFENSE.
POINT II:
APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE, ON DIRECT APPEAL, THE DENIAL OF DEFENDANT'S MOTION TO PRESENT A THIRD-PARTY DEFENSE.
Defendant's claim that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution is governed by the two-part analysis established 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, 58 (1987). The two-part analysis applies with equal force to claims regarding appellate counsel. State v. O'Neil, 219 N.J. 598, 610 (2014); State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Guzman, 313 N.J. Super. 363, 374 (App. Div.), certif. denied, 156 N.J. 424 (1998).
To establish the first prong, it must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness," and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Gaitan, 209 N.J. 339, 349-50 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1954, 133 L. Ed. 2d 361 (2013). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).
To satisfy the second prong, a defendant must show "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, 367 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). A defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; State v. Nash, 212 N.J. 518, 542 (2013); Fritz, supra, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
We review the legal conclusions of a PCR court and mixed questions of fact and law under the de novo standard of review. Harris, supra, 181 N.J. at 420. We accord deference "[i]n reviewing a PCR court's factual findings based on live testimony" and will not disturb "the PCR court's findings that are supported by sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting Nash, supra, 212 N.J. at 540).
A. Ineffective Assistance of Trial Counsel.
A criminal defense attorney "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. A defendant may establish ineffective assistance of counsel if counsel failed to call exculpatory witnesses on his behalf, State v. Petrozelli, 351 N.J. Super. 14, 23-25 (App. Div. 2002), or failed to investigate potential witnesses. State v. Deutsch, 229 N.J. Super. 374, 377 (App. Div. 1988). However, the "decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
The decisions of which witnesses to call at trial and the testimony to be elicited from them are strategic determinations that fall within counsel's discretion. State v. Coruzzi, 189 N.J. Super. 273, 323 (App. Div. 1983), certif. denied, 94 N.J. 531 (1983). "Counsel's fear that a weak alibi could cause more harm than good is the type of strategic decision that should not be second guessed on appeal." State v. Drisco, 355 N.J. Super. 283, 291 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003).
Based upon our review of the record, we are convinced that the PCR court correctly concluded that defendant failed to establish that his trial counsel's performance was deficient by deciding not to call defendant's sisters and niece as alibi witnesses. The record developed during the evidentiary hearing showed that the testimony of the putative alibi witnesses would not have established that defendant was at their home at the time of Cavero's murder. In contrast, Kinyetta Miller's testimony that her grandmother was insistent that defendant return home would have provided support for an argument that defendant immediately left his sisters' home and quickly returned to the apartment building where his grandmother lived and where Cavero was murdered.
Moreover, the evidence supports the PCR's conclusion that Serterides considered the viability of an alibi defense, the limited value of the information which could be supplied by defendant's sisters and niece, consulted with Gualano regarding the defense, and made a reasoned decision not to rely on an alibi defense. It was undisputed that defendant was at the scene when Cavero's family first arrived, and his presence became a cornerstone of his defense because Cavero did not identify him at that time as the perpetrator of the crime.
The record does not support defendant's contention that Serterides's decision not to call the witnesses was the result of a failure to file a notice of alibi in accordance with Rule 3:12-2. We are satisfied there is sufficient evidence supporting the court's conclusion that counsel's decision to forego reliance upon the purported alibi witnesses and assert an alternative defense was a matter of sound trial strategy which should not be second-guessed. Arthur, supra, 184 N.J. at 319; Drisco, supra, 355 N.J. Super. at 291.
The record also supports the court's finding that if Serterides had called the witnesses during the trial, the result would not have been different. Again, none of the witnesses testified that defendant was at their home at the time of Cavero's murder, and Kinyetta Miller's testimony would have established that defendant had reason to leave her home no later than 7:45 p.m. and go immediately and quickly to the apartment building his grandmother shared with Cavero. We are therefore satisfied that the PCR court correctly concluded that defendant failed to establish that but for his counsel's alleged errors, there is a reasonable probability the result of the trial would have been different. Allegro, supra, 193 N.J. at 367.
Having failed to establish a prima facie case of ineffective assistance of counsel, we are satisfied the PCR court properly denied defendant's petition as it relates to his trial counsel. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
B. Ineffective Assistance of Appellate Counsel.
Defendant also argues that his appellate counsel was ineffective by failing to challenge on direct appeal the trial court's decision barring introduction of alleged evidence of third-party guilt. Defendant alleges that the testimony provided by Heaney at the N.J.R.E. 104 hearing regarding the other robberies he investigated was "clearly exculpatory and was relevant to show the identity and motive of the third party in [defendant's] case that committed the crime."
A defendant is entitled to a "meaningful opportunity to present a complete defense," which "includes . . . [the] right to introduce evidence of third-party guilt 'if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Cotto, 182 N.J. 316, 332 (2005) (first quoting State v. Garron, 177 N.J. 147, 168 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004), then quoting State v. Fortin, 178 N.J. 540, 591 (2004)). The defendant does not need to "prove[] the guilt of another," rather, a defendant must establish that there is "some link between the third-party and the victim or the crime," id. at 333 (quoting State v. Koedatich, 112 N.J. 225, 301 ( 1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)), to "create[] the possibility of reasonable doubt." Ibid. (citing Fortin, supra, 178 N.J. at 591).
The PCR court rejected defendant's claim that his appellate counsel was ineffective by failing to challenge the trial court's exclusion of Heaney's testimony regarding his investigation of other robberies that occurred during the same week but in a different part of Jersey City. We agree with the PCR court that defendant did not satisfy either prong of the Strickland standard because he did not establish that the trial court's exclusion of the evidence was in error.
Heaney's testimony regarding his investigation of the other robberies did not describe any evidence linking those robberies to the commission of Cavero's murder. "[A] defendant cannot simply seek to introduce evidence of 'some hostile event and leave its connection with the case to mere conjecture.'" Ibid. (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959)). Introduction of Heaney's testimony would have impermissibly required the jury to speculate that the perpetrators of the other robberies were responsible for the robbery and resulting death of Cavero. We therefore are not persuaded that Heaney's testimony would have provided a rational basis for a jury to conclude that the perpetrators of the robberies investigated by Heaney committed the robbery and murder of Cavero. Id. at 332.
Although defendant is entitled to the effective assistance of appellate counsel, "appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant." State v. Morrison, 215 N.J. Super. 540, 549 (App. Div.) (citing Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 3315, 77 L. Ed. 2d 987, 995 (1983)), certif. denied, 107 N.J. 642 (1987); see also State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div. 2007) (holding that appellate counsel is not "required to advance every claim insisted upon by a client on appeal"), certif. denied, 194 N.J. 444 (2008).
Because the proffered evidence of third-party guilt was "mere conjecture" by Heaney, Sturdivant, supra, 31 N.J. at 179, and insufficient to support a claim of third-party guilt, Cotto, supra, 182 N.J. at 332, appellate counsel was not required to advance the claim that the trial court erred in precluding admission of Heaney's testimony. See Gaither, 396 N.J. Super. at 515-16. Defendant therefore failed to demonstrate that appellate counsel's representation "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 687-88. 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and that but for appellate counsel's failure to raise that argument on direct appeal the outcome of his appeal of his conviction would have been different. Allegro, supra, 193 N.J. at 367.
Because defendant failed to establish both prongs of the Strickland standard, the PCR court properly rejected defendant's claim that his appellate counsel was constitutionally ineffective. See Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702 (A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR.).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION