Opinion
DOCKET NO. A-0796-13T2
01-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KALIEB COX, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-04-0452. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, 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. For the reasons that follow, we affirm.
Defendant was convicted by a jury on January 11, 2011, of one count of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and two counts of third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3). On March 13, 2011, the court imposed an aggregate sentence of eight years imprisonment with a four year period of parole disqualification. Defendant did not file a direct appeal from his conviction and sentence.
Defendant filed a PCR petition on October 24, 2011, in which he argued his trial counsel was ineffective due to counsel's "lack of moral turpitude and candor regarding his ethics." In his accompanying certification, defendant explained that at the time counsel represented defendant, his attorney was "under investigation and subsequently suspended from the practice of law." He supplied a copy of a May 11, 2011 New Jersey Law Journal notice containing counsel's suspension order and listing the reasons for its entry. According to defendant, his attorney "committed [Rules of Professional Conduct] violations for which he was suspended in his representation of [defendant]." Defendant stated that counsel was "grossly negligent, failed to communicate with [him], misrepresented the facts and law in [his] case and lacked due diligence in his representation of [defendant]."
Defendant's assigned PCR counsel also filed a brief on behalf of defendant in January 2013. In this brief, counsel also argued that trial counsel was ineffective, citing to allegations made by defendant that "trial counsel did not explain to [defendant] his exposure and available defenses in proceeding to trial [and] failed to communicate with [defendant] during the stages of pretrial and trial . . . violat[ing] the very essence of the Rule[s] of Professional Conduct." In support of these contentions, PCR counsel also cited to trial counsel's suspension and his "lengthy history of neglecting clients['] concern[s]."
After considering defendant's and the State's written submissions, as well as their oral arguments on April 12, 2013, the PCR court denied defendant's petition by order dated April 16, 2013. Judge Mark J. Fleming simultaneously issued a twelve-page written decision setting forth the court's reasons for denying the petition.
In his decision, Judge Fleming reviewed the procedural history of defendant's case, as well as the facts surrounding his conviction for the CDS offenses. He described the purpose of a PCR petition and the rules regarding the requirements for filing a timely petition. The judge determined defendant's petition was, in fact, timely and proceeded to consider the petition's merits.
Judge Fleming discussed the allegations giving rise to the petition. He carefully described the law governing a court's consideration of a petition and the requirements imposed on a defendant pursuing such relief. The judge described both defendant's and the State's contentions and determined that defendant "failed to make a prima facie showing of ineffective assistance of counsel." The judge explained that defendant only made "bald assertions" regarding counsel's performance, lacking the required "specificity" for a prima facie case.
The judge specifically rejected defendant's contention that his trial counsel's ethical issues with other clients in unrelated matters somehow impacted counsel's representation of defendant in his criminal matter. Judge Fleming cited to and quoted from the Court's decision in State v. Allegero, 193 N.J. 352, 368-69 (2008) as support for his conclusion that "[t]he sheer fact that [trial counsel's] ethics violations exist does not require this Court to find that trial counsel was deficient in the representation of [defendant] or that the representation resulted in a prejudice which impacted the outcome of the proceedings."
Judge Fleming entered an order denying the petition and this appeal followed. Defendant presents the following issues for our consideration in his appeal.
POINT I
THE MATTER SHOULD BE REMANDED FOR A NEW PCR HEARING BECAUSE MR. COX RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.
POINT II
THE PCR COURT ERRED IN DENYING MR. COX'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING.
We are not persuaded by either of these arguments and affirm. The standard for determining whether trial counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). 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, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test for the reasons expressed by Judge Fleming in his thorough written decision. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted, see State v. Preciose, 129 N.J. 452, 462-63 (1992), and the petition for relief should be denied.
We do not consider in this appeal defendant's arguments regarding the performance of PCR counsel because they were not previously raised in a PCR petition in the Law Division, "are [not] jurisdictional in nature, or substantially implicate the public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION