Opinion
DOCKET NO. A-2484-12T4
07-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD CHIPPERO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, 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NOT FOR PUBLICATION WITHOUT THE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 Fisher and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 91-09-1510.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons set forth by Judge Alan Rockoff in his oral decision.
After defendant's convictions for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); aggravated sexual assault, N.J.S.A. 2C:14-2(a); purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2); felony murder, N.J.S.A. 2C:11-3(a)(3); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1), were reversed by the Supreme Court, State v. Chippero, 164 N.J. 342 (2000) (Chippero I), defendant was convicted at a second trial of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The weapon charge was merged into the murder conviction, and defendant was sentenced to life imprisonment with thirty years parole ineligibility. Defendant appealed, and we reversed his convictions. The Supreme Court granted the State's petition for certification, reversed our decision, and reinstated defendant's convictions and sentence. State v. Chippero, 201 N.J. 14 (2009) (Chippero II). Upon remand for us to consider issues not addressed in our prior opinion, we rejected defendant's remaining contentions and affirmed his convictions and sentence. State v. Chippero, No. A-6401-02 (App. Div. Dec. 7, 2010), certif. denied, 207 N.J. 227 (2011).
Defendant filed a PCR petition, arguing that he was denied the effective assistance of counsel both at trial and on appeal. We briefly review principles applicable to his petition.
In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) 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 v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984 ); see also State v. Fritz, 105 N.J. 42, 58 (l987). A defendant is not entitled to an evidentiary hearing on his claims unless he presents a prima facie showing that there is a reasonable likelihood that he will satisfy these criteria, State v. Preciose, 129 N.J. 451, 462 (1992), and he cannot rely on bald assertions to do so. "He must allege facts sufficient to demonstrate counsel's alleged substandard performance" and the probability that it affected the jury's verdict. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, a defendant is procedurally barred from raising claims in a PCR petition that could have been raised on direct appeal, R. 3:22-4, or that have been adjudicated in the underlying proceedings or on direct appeal, R. 3:22-5.
In his PCR petition, defendant argued that trial counsel failed to (1) request charges on appropriate lesser-included offenses; (2) object to the testimony of Peter DeForest, an expert in footwear impressions, blood spatter, and trace evidence; (3) bring to the trial court's attention that certain jurors were asleep during the retrial; (4) note on the record when the trial judge appeared to be "nodding off"; and (5) "put the State's case to any meaningful adversarial test." An amended petition was submitted by counsel on behalf of defendant. In the amended petition, defendant argued (1) that trial counsel was ineffective in failing to request a jury charge of aggravated or reckless manslaughter and in failing to object to DeForest's testimony; and (2) that appellate counsel was ineffective in failing to raise these issues on appeal.
Judge Rockoff denied defendant's petition, and set forth his reasons on the record, addressing each of the arguments raised by defendant.
With regard to defendant's claim that trial counsel failed to argue for lesser-included offenses in his 2003 trial, Judge Rockoff observed that the record showed "there were extensive arguments by defense counsel on that exact issue." Further, the judge found that the issue was argued on appeal and "the Appellate Division affirmed the trial court's reasoning for not granting the lesser-included charges of aggravated . . . and reckless manslaughter." Accordingly, the court ruled that the issue was procedurally barred under Rule 3:22-4 as it was previously adjudicated and, further, that it did not satisfy the Strickland/Fritz test.
Judge Rockoff also found that the record belied defendant's claims that trial counsel failed to object to Dr. DeForest's testimony and that the issue was not raised on appeal. He stated,
Trial counsel objected numerous times, in the form of multiple motions, in an attempt to disqualify Dr. DeForest. Defendant's attorney attempted in three ways to preclude the testimony from DeForest as it pertains to the sneakers found under the defendant's bed. [Defense counsel] moved to suppress the sneakers. He moved that they were irrelevant. [The trial judge] heard the arguments. And [the trial judge] said that the sneakers were relevant.
Then, [defense counsel] added another motion to exclude Dr. DeForest's testimony because he was not an expert for the purpose of providing footwear impressions. [The
trial judge] denied his motion in limine to exclude Dr. DeForest's expertise . . . as to the shoeprint. And finally, there was an attempt by the defendant's counsel to suppress or preclude the . . . prosecution from using the transparency to present the sneaker overlay to the jury. Again, that motion was heard and denied.
. . . .
So it is clear to me that the petitioner's attorney, although unsuccessful, served his client effectively repeatedly in an effort to suppress the testimony. And his failure does not make his actions incompetent.
Noting that the issue had been raised in both direct appeals, Judge Rockoff found the argument procedurally barred under Rules 3:22-4 and 3:22-5 and that defendant failed to make a prima facie case that but for counsel's alleged ineffectiveness, the outcome would have been different. The court found defendant's other arguments lacked merit because they were "just bald-faced assertions," unsupported by any evidence.
In this appeal, defendant argues that the PCR court erred in denying his petition without an evidentiary hearing. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following limited comments.
As Judge Rockoff concluded, defendant's arguments that trial and appellate counsel were ineffective in failing to raise or address lesser-included offenses and challenge Dr. DeForest's testimony are procedurally barred. R. 3:22-5.
To support his claim that his trial counsel failed to note on the record that "jurors were sleeping" and that the trial judge appeared to be "nodding off," defendant was required to present evidence of such facts. Rule 3:22-10(c) provides that "[a]ny 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." Defendant failed to do so. His certification in support of the PCR petition was silent on the issue, never identifying which juror or jurors were allegedly sleeping during the 2003 retrial or providing any support for his contention the trial judge was nodding off. Because defendant failed to provide any factual support for his "bald assertions," he failed to present a prima facie showing that would warrant an evidentiary hearing. R. 3:22-10(c); Preciose, supra, 129 N.J. at 462-64.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION