Opinion
DOCKET NO. A-3933-13T2
01-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.R., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0386. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant J.R. filed a petition for post-conviction relief (PCR), claiming ineffective assistance of counsel. The PCR court denied his petition without an evidentiary hearing and without entertaining oral argument. We affirm.
We use initials to preserve the privacy of those involved. --------
After a jury trial, defendant was found guilty of one count of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(1), and one count of fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). The victim was defendant's adult daughter. Defendant appealed. We affirmed his convictions, State v. J.R., No. A-0145-10 (App. Div. April 3, 2012), and the Supreme Court denied certification, State v. J.R., 212 N.J. 288 (2012). The facts underlying defendant's conviction are set forth in our opinion and will not be repeated.
Defendant filed a counseled and a pro se petition for PCR. In an order filed February 6, 2014, which included a comprehensive statement of reasons, the PCR judge denied defendant's petition without an evidentiary hearing or oral argument. The PCR judge concluded defendant did "not set forth a prima facie case for relief pursuant to either prong of Strickland v. Washington, 466 U.S. 688 (1984)." After setting forth defendant's allegations in his counseled petition that his trial counsel was ineffective, the PCR judge stated, "[a]ll of these allegations are made in a summary, conclusionary manner, devoid of any details. The submission does not set forth what the trial attorney should have done, [did not] do and how it would have affected the outcome of the trial."
The judge then addressed the additional grounds raised pro se by defendant. After comprehensively addressing each contention, the judge concluded the issues raised were without merit. The judge stated:
Petitioner fails to articulate what he claims was the problem with the voir dire and how it would have made a difference. The petitioner has not proffered an expert, what he or she would have said, how it would be admissible and how it would have altered the outcome. Defendant was advised on the record of his right not to testify. Petitioner fails to say which [federal immigration] laws he claims should have been presented, how they are admissible and how they would have had an impact on the outcome. Petitioner fails to identify which portions of the jury charge should have been objected to, why and how it would have had an impact on the outcome. Prior sexual encounters between the defendant and the victim were relevant and admissible.
Finally, for the reasons expressed in his opinion, the judge denied defendant's request for oral argument and a hearing.
On appeal, defendant presents the following issues for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN DENYING [J.R.] AN EVIDENTIARY HEARING EVEN THOUGH [J.R.] SUCCESSFULLY DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. [J.R.] successfully demonstrated that trial counsel was ineffective as trial counsel failed to conduct investigations prior to trial.
B. Trial counsel was ineffective in failing to file a motion for a judgment of acquittal as to all counts.
POINT TWO
THE PCR COURT ERRED IN DENYING [J.R.'s] PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING PCR COUNSEL THE OPPORTUNITY TO PRESENT ORAL ARGUMENT.
POINT THREE
[J.R.] INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL PETITION FOR POST-CONVICTION RELIEF.
We affirm substantially for the reasons expressed in Judge Stuart L. Peim's comprehensive opinion. We add the following brief comments.
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" of its ruling. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. (citations omitted).
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defendant also argues that the judge precipitously ruled on the PCR petition without oral argument, citing Parker, supra, 212 N.J. at 283, which holds, as did our earlier decision in State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001), that "there is a strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief." After setting forth the reasons for the denial of defendant's petition, the PCR judge concluded "[u]nder the circumstances of this case, oral argument was unnecessary as it would not have been helpful to the [c]ourt."
We are persuaded that the alleged deficiencies here clearly fail to establish either the performance or prejudice prong of the Strickland/Fritz standard. We concur with the PCR judge that an evidentiary hearing was not necessary since defendant did not present a prima facie case in support of his PCR and either an evidentiary hearing or oral argument would not have assisted the PCR judge in addressing defendant's petition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION