Opinion
DOCKET NO. A-4423-10T2
03-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DUQUEE SIMMONS, a/k/a DUQUIE SIMMONS, a/k/a CHRISTOPHER ARTIS, a/k/a JAQUI CRAFT, a/k/a SIDNEY DAWSON, a/k/a JAQUIE E. ERNEST, a/k/a AKMAD S. WILLIAMSON, a/k/a AKMAD STEINENFIELD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-10-3168.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was convicted by a jury of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c); and second-degree possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). At sentencing, the court merged the conviction for possession of a shotgun for an unlawful purpose into the aggravated manslaughter conviction. Defendant was sentenced to twenty-two years on the aggravated manslaughter conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent term of four years for unlawful possession of the shotgun.
Defendant filed a notice of appeal and argued that his convictions were against the weight of the credible evidence and that his sentence was excessive. We affirmed his convictions and sentence in an unpublished opinion. State v. Simmons, No. A-2544-07 (App. Div. June 9, 2009). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.
The Supreme Court denied defendant's petition for certification, 200 N.J. 371 (2009).
Defendant filed a PCR petition on February 17, 2010, in which he argued that he was denied the effective assistance of trial counsel because his attorney failed to object to the prosecutor's reference to a "Stop Snitching" campaign; failed to file a notice of alibi and investigate his alibi defense; and failed to obtain records relating to the release of a witness for the prosecution. He also argued that he was denied the effective assistance of appellate counsel because these issues were not raised in the direct appeal. A brief and amended petition were submitted on behalf of defendant by designated counsel in which it was argued that defendant had presented prima facie evidence of ineffective assistance of counsel, warranting an evidentiary hearing.
The State denied there was "any deal" between the State and the witness in question in opposing defendant's petition. Defendant has not raised this argument on appeal.
The PCR court denied defendant's petition by order dated November 9, 2010.
Defendant presents the following issues for our consideration in his appeal:
POINT IWe are not persuaded by any of these arguments and affirm.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S SUMMATION, WHICH EXCEEDED THE BOUNDS OF PROPRIETY.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO INVESTIGATE AND PURSUE AN ALIBI DEFENSE ON BEHALF OF HIS CLIENT.
POINT II
THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL.
Rule 3:22-4(a) provides, in pertinent part:
Any ground for relief not raised . . . in any appeal taken in [the proceedings resulting in the conviction] is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:The rule clarifies that "[a] ground could not reasonably have been raised in a prior proceeding only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence." Ibid.
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
Defendant's allegation that his trial counsel was ineffective in failing to object to the prosecutor's summation is thus procedurally barred by Rule 3:22-4(a) unless: this argument could not reasonably have been raised in the direct appeal; enforcement of the procedural bar would result in a fundamental injustice; or denial of relief would be contrary to a new rule of constitutional law. We are satisfied that none of these exceptions to the procedural bar apply.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. In order to be entitled to an evidentiary hearing, a defendant must make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Defendant also argues that he was entitled to an evidentiary hearing on his claim that his trial attorney was ineffective in failing to investigate and present an alibi defense. Defendant contends he told his trial attorney that the day in question was the day he proposed to his fiance, Veronica Johnson; that they spent the day together, went to the movies, and returned home where he cooked dinner for them. However, defendant has failed to support his assertion that he had a viable alibi defense with any certification from Ms. Johnson.
In order to be entitled to an evidentiary hearing, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rule 3:22-10(c) provides:
Any factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing.Thus, when a defendant asserts that his attorney failed to call witnesses who would have exculpated him, he must assert the facts that would have been revealed, "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting Cummings, supra, 321 N.J. Super. at 170). Defendant's failure to support his assertion with such an affidavit here defeats his argument that he is entitled to an evidentiary hearing on this issue.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION