Opinion
DOCKET NO. A-5712-11T2
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN BRIGGS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-11-03606. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kevin Briggs appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
On January 31, 2006, defendant pled guilty pursuant to a negotiated agreement to two counts of felony murder, N.J.S.A. 2C:11-3(a)(3). In the course of burglarizing a residence, defendant shot and killed the two occupants. Despite having committed two separate homicides, the State agreed to recommend that defendant serve an aggregate term of thirty years without parole eligibility. Defendant appealed his sentence through the summary proceedings provided under Rule 2:9-11. We affirmed. State v. Briggs, No. A-005163-06 (App. Div. Sept. 16, 2008) (slip op.).
Defendant filed this pro se PCR petition on September 15, 2010, alleging the trial court should have ordered a psychiatric evaluation to determine his competency to stand trial; ineffective assistance of counsel based on counsel's failure "to develop an adequate trial strategy;" an alleged conspiracy between his attorney, the trial judge, and the prosecutor to breach his plea agreement, which resulted in prosecutorial misconduct and ineffective assistance of counsel; the trial judge's failure to address him directly to solicit a factual basis for his guilty plea; and ineffective assistance of appellate counsel.
The PCR counsel assigned by the court to represent defendant in the prosecution of this petition filed a supplemental brief arguing a lack of a factual basis at the plea hearing to support the court's finding that defendant committed the crime of felony murder; ineffective assistance of counsel based on the attorney's failure to challenge the adequacy of the factual basis; and the attorney's failure to investigate and prepare a defense. PCR counsel argued that defendant had presented a prima facie case of ineffective assistance of counsel, and was entitled to an evidentiary hearing under Rule 3:22-10(b). Finally, anticipating a possible procedural deficiency challenge by the State, PCR counsel argued defendant's PCR petition was not procedurally barred under Rule 3:22-4.
On October 25, 2011, PCR Judge Michelle Hollar-Gregory heard the arguments of counsel and reserved final decision. Judge Hollar-Gregory denied defendant's petition in an order dated December 21, 2011. Judge Hollar-Gregory explained the reasons for her ruling in an attached memorandum of opinion. Defendant now appeals to this court raising the following arguments.
POINT I
THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING THE PREDICATE FELONY.
POINT II
THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING DEFENDANT'S MENTAL HEALTH (partially raised below).
POINT III
THE JUDGE BELOW ERRED IN FAILING TO ADDRESS DEFENDANT'S PRO SE CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL (not raised below).
POINT IV
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate 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. Second, he must show there exists "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.
Applying these standards to the record before us, we reject defendant's arguments and affirm substantially for the reasons expressed by Judge Hollar-Gregory in her memorandum of opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION