Opinion
DOCKET NO. A-2978-12T3
06-30-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM HOHNEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-01-394.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant William Hohney appeals from the October 12, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was convicted at trial of numerous drug charges and sentenced to an aggregate sentence of sixteen years in prison with an eight-year term of parole ineligibility. He appealed and we affirmed in a detailed eighteen-page opinion. State v Hohney, No. A-3111-08 (App. Div. February 4, 2011). He filed a petition for PCR alleging that his trial counsel was ineffective because
Counsel failed to investigate the corruption of my arrest.Assigned counsel wrote a brief alleging that trial counsel did not file appropriate pre-trial motions and did not properly cross-examine the state trooper who testified that he saw defendant engage in a drug transaction. In counsel's brief, he states, "Mr. Hohney insists that the circumstances surrounding his arrest were suspect and that the testimony presented at trial was not an accurate description of the events."
Counsel failed to file an appeal on my behalf.
Counsel failed to pursue pre-trial motions. I was denied my Constitutional Right of Fourteenth Amendment protection by virtue of:
My arrest was corrupt and unconstitutional.
We reproduce these points as written
On appeal, defendant raises the following issues:
POINT I: THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED TO ADVANCE THE CLAIM OF TRIAL COUNSEL'S
FAILURE "TO INVESTIGATE THE CORRUPTION OF MY ARREST." (NOT RAISED BELOW)
POINT II: THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED "TO INVESTIGATE THE CORRUPTION OF MY ARREST." (NOT RAISED BELOW)
In his supplemental brief, defendant does not provide point headings, but argues that the arresting officer provided false reports and that defendant's search and arrest was unconstitutional. He lists portions of the trial transcript where he alleges the State's witnesses were not truthful.
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); State v. Fritz, 105 N.J. 42, 58 (1987).
The same judge who conducted the trial considered defendant's PCR petition. The judge indicated he had carefully read and considered the parties' briefs and reviewed the trial transcripts. He discussed with counsel trial counsel's failure to file a motion to suppress the evidence and determined that it would have been futile. State v. Love, 233 N.J. Super. 38, 45 (App. Div.), certif. denied, 118 N.J. 188 (1989). He also discussed the counsel's cross-examination of the trooper, finding it to be "sufficiently probing[.]" The judge noted that defense counsel had presented three witnesses. The judge determined that, having failed to present prima facie evidence of ineffective assistance of counsel, defendant was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).
We affirm on the basis of Judge Frederick J. Schuck's oral opinion. PCR counsel sufficiently advanced defendant's wholly unsupported claim that his arrest was corrupt. See State v. Rue, 175 N.J. 1, 18-19 (2002) (determining that PCR counsel must advance all of defendant's arguments, but may do so in reliance on a brief).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION