Opinion
DOCKET NO. A-6260-12T1
04-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONALD ROBINSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-02-0795. Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Donald Robinson appeals the Law Division's March 22, 2013 order denying his petition for post-conviction relief (PCR). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Robinson was charged with the August 20, 2005 sexual assault of a woman with whom he had engaged in an on-and-off romantic and sexual relationship during the approximately nine years preceding the alleged rape. He waived his right to a jury trial. At the bench trial in March 2008, the victim testified that she did not consent to sexual intercourse and that Robinson forced himself on her. Although the assault was not reported for almost a year, the victim had sought medical attention shortly afterward and there was medical testimony at trial supporting the victim's allegation that the intercourse was forced on her. Robinson testified that they had consensual sexual intercourse.
The trial judge convicted Robinson on the single count charging him with second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(1). He sentenced Robinson to incarceration for eight years, with an eighty-five percent parole bar pursuant to the No Early Release Act, N.J.S.A. 2C:7.2. In addition to appropriate fines and penalties, the sentence required that Robinson be subject to the reporting and community supervision requirements of Megan's Law. N.J.S.A. 2C:7-1 to -11. Robinson filed a direct appeal, and we affirmed. State v. Donald E. Robinson, No. A-5944-07 (App. Div. June 25, 2010).
Robinson filed his pro se petition for PCR in March 2011. Appointed counsel filed a supplemental brief. Without hearing oral argument on the petition, the trial judge denied relief and issued a written decision explaining his reasons. This appeal followed.
II.
On appeal, Robinson presents the following argument:
THE PCR COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING
"Post-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(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial 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." "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" that "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 constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
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. A defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64.
Having reviewed Robinson's contentions in light of the record and the applicable law, we find them to be without merit and not warranting an extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Robinson's basic allegation of ineffective assistance of counsel is that his trial attorney failed to prepare for trial and failed to present exculpatory witnesses. In his well-reasoned and factually supported written decision denying PCR relief, Judge Thomas A. Brown, Jr., outlined the testimony given by the victim and Robinson at trial. He described defense counsel as well prepared. The result in this case turned primarily on the credibility of the victim and the defendant, the only two people present when the sexual assault occurred. The judge explained why he credited the victim over Robinson, despite the delay in her report to the police. He also pointed to the fact that Robinson had failed to articulate what other evidence or witnesses should have been presented at trial to change the result.
We agree with Judge Brown that Robinson has failed to present a prima facie case of ineffective assistance of counsel, and for that reason find no error in the dismissal of the petition without holding an evidentiary hearing. Although oral argument is generally favored on a first PCR petition, State v. Parker, 212 N.J. 269, 280-82 (2012), we see no abuse of discretion in the judge's decision not to hear oral argument in this case, especially in light of the fact that Robinson had outlined his dissatisfaction with his attorney during the course of the bench trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION