Opinion
DOCKET NO. A-1098-13T4
03-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FREDERIC D. SMITH, Defendant-Appellant.
Christopher T. Campbell, attorney for appellant. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief; Matthew Tallia, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal No. 17-2013. Christopher T. Campbell, attorney for appellant. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief; Matthew Tallia, on the brief). PER CURIAM
Defendant Frederic Smith appeals from the November 4, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on the ineffective assistance of counsel. Because we conclude defendant failed to establish a prima facie claim of ineffective assistance of counsel to warrant an evidentiary hearing, we affirm.
Following a trial de novo in the Law Division, defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and DWI in a school zone, N.J.S.A. 39:4-50(a). The convictions were based upon a per se violation and an observational violation. Because this was defendant's third DWI conviction and first DWI in a school zone conviction, the court sentenced him to a 180-day jail term, suspended his driver's license for ten years, and imposed the appropriate fines, costs, and surcharges. The court stayed the jail term pending appeal.
Defendant appealed, arguing the police lacked probable cause to arrest him for DWI and he received the ineffective assistance of trial counsel. We affirmed defendant's conviction, but deferred consideration of the ineffective assistance of counsel claim. State v. Smith, No. A-4016-10 (App. Div. June 27, 2012). Defendant has since served his jail term.
On January 8, 2013, defendant filed a PCR petition with the municipal court, arguing that trial counsel rendered ineffective assistance by failing to: (1) present evidence of defendant's foot ailments and retain an expert to challenge the observational and psychophysical evidence; (2) ask defendant on direct examination whether he burped during the twenty-minute Alcotest observation period; and (3) object to the admission of the Alcotest foundational documents.
The municipal court judge denied the PCR petition, as did Law Division Judge Alberto Rivas. Judge Rivas found that trial counsel consulted an expert regarding the psychophysical evidence and made a strategic decision, based on the per se violation, not to produce that expert. Instead, counsel chose to produce a pharmacological expert to challenge the Alcotest results on the grounds that defendant's illnesses precluded accurate readings. The judge also determined that defendant's alleged foot ailments were irrelevant to the per se violation.
Judge Rivas rejected defendant's argument as to the Alcotest foundational documents. The judge found there was no evidence of any deficiency or defect in the documents that called the machine's operation into question, the documents were properly authenticated and admitted into evidence, and a challenge to their admission would have been futile.
Judge Rivas also rejected defendant's argument as to counsel's failure to ask whether he burped during the twenty-minute Alcotest observation. The judge found that the police officer who observed defendant during two twenty-minute observational periods testified credibly that he did not see defendant burp or flinch. Judge Rivas determined, and PCR counsel agreed, even if defendant testified to the contrary, it was speculative whether the municipal court judge would have found this credible. This was so because the municipal court judge had found defendant's trial testimony was not entirely credible. Judge Rivas concluded that defendant failed to establish the two prongs in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)—that counsel's performance was deficient and the deficient performance prejudiced the defense. This appeal followed.
On appeal, defendant raises the following contentions:
I. DEFENDANT FRED[E]RIC SMITH SHOULD BE AFFORDED [PCR] IN THE FORM OF A NEW TRIAL BASED ON THE TRIAL RECORD, DESPITE THE FAILURE OF THE [PCR] APPLICATION COURT TO HOLD A TESTIMONIAL FACT-FINDING HEARING.
II. ASSUMING THE COURT DOES NOT FIND THAT [PCR] IS WARRANTED BASED ON THE TRIAL RECORD, DEFENDANT FRED[E]RIC SMITH MUST BE AFFORDED A TESTIMONIAL FACT-FINDING HEARING ON THIS [PCR] APPLICATION.
Our Supreme Court has established the standard of review in PCR cases:
Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. An appellate court's reading of
a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he [or she] has observed firsthand. Last, we need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo.Applying this standard, we discern no reason to disturb Judge Rivas's ruling.
[State v. Nash, 212 N.J. 518, 540-41 (2013) (citations omitted).]
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013); State v. Preciose, 129 N.J. 451, 459-64 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant
must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.
Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The
prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in original) (citations and internal quotation marks omitted).]
We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons Judge Rivas expressed in his October 11, 2013 oral opinion. However, we make the following brief comments.
A valid conviction will not be overturned merely because defendant is dissatisfied with counsel's exercise of judgment during trial. State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983). Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). The fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). Given the evidence of the per se violation in this case, trial counsel made an appropriate strategic decision to forego challenging the observational and psychophysical evidence.
In addition, defendant presented no evidence that he burped, belched, flinched, or had heartburn during either of the two twenty-minute Alcotest observational periods. Notably, his certification in support of his PCR petition is silent on this issue. Accordingly, there is no basis whatsoever to conclude that counsel's performance fell below an objective standard of reasonableness because he failed to ask defendant whether he burped.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION