Opinion
DOCKET NO. A-4675-15T3
12-20-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY MONTGOMERY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Simonelli and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-08-1839. Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Anthony Montgomery, 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 of first-degree carjacking and nine other criminal offenses as originally charged in an indictment. On June 11, 2010, the sentencing court imposed an aggregate sentence in the extended term of life in prison without parole and a consecutive thirty-year term with eighteen and one-half years of parole ineligibility.
The indictment charged defendant with second-degree eluding, contrary to N.J.S.A. 2C:29-2(b) (count one); second-degree aggravated assault by eluding, contrary to N.J.S.A. 2C:12-1(b)(6) and N.J.S.A. 2C:29-2(b) (count two); first-degree carjacking, contrary to N.J.S.A. 2C:15-2(a) (count three); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-l(b)(5)(a) (count four); second-degree disarming a law enforcement officer, contrary to N.J.S.A. 2C:12-ll(a) (count five); third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(3) (count six); fourth-degree injury to a law enforcement animal, contrary to N.J.S.A. 2C:29-3.1 (count seven); second-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4 (count eight); fourth-degree possession of a prohibited weapon, contrary to N.J.S.A. 2C:39-3 (count nine); and second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7(b)(1) (count ten).
Defendant appealed and we affirmed his convictions, but reversed portions of his sentence and remanded for resentencing. State v. Montgomery, 427 N.J. Super. 403, 405 (App. Div. 2012). The trial court resentenced defendant in accordance with our remand, which made concurrent part of the aggregate sentence that had been consecutive to the life term. The Supreme Court denied defendant's petition for certification. State v. Montgomery, 213 N.J. 387 (2013).
We redacted our opinion to exclude our discussion regarding defendant's sentence. Those details are addressed in the unpublished version of our opinion. See State v. Montgomery, No. A-2192-10 (App. Div. Aug. 10, 2012) (slip op. at 35-36). --------
The facts underlying defendant's convictions are set forth in our earlier opinion and need not be repeated here. See Montgomery, 427 N.J. Super. at 405.
Defendant filed a PCR petition on February 19, 2015, in which he argued in a brief that he received ineffective assistance of trial counsel because his attorney "failed to present a defense, communicate with [him], denied [defendant] discovery, was more interested in [defendant] taking a "plea deal" and . . . did not feel as though [defendant] would get a fair trial because of his incidents, in the county jail[.]" He also argued that his attorney did not "raise issues" or "preserve [defendant's] Constitutional issues." In a supporting certification, he added that counsel "failed to . . . prepare for trial, violated" applicable standards of conduct, allowed defendant to be shackled during trial, and failed to properly voir dire jurors.
A brief and amended petition was submitted by PCR counsel on behalf of defendant in November 2015. In this brief, defendant expanded upon his claim that trial counsel failed to adequately prepare for trial or involve defendant in any preparation.
The PCR court denied defendant's petition by order dated May 3, 2016. In a comprehensive eleven-page written decision, Judge James M. Blaney explained the reasons for his denial of defendant's petition. The judge found that defendant's allegations about counsel having failed to prepare for trial or communicate with defendant about the trial, were belied by the record and were without any support. He also concluded defendant failed to establish that, even if counsel's performance was deficient, how the outcome of the trial would have been different had counsel provided effective assistance as argued by defendant.
Defendant presents the following issues for our consideration in his appeal.
POINT I:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HIS FAILURE TO CONSULT WITH DEFENDANT FOR A SUFFICIENT PERIOD OF TIME PRIOR TO TRIAL AND TO ENSURE THAT DEFENDANT HAD THE OPPORTUNITY TO THOROUGHLY REVIEW ALL DISCOVERY PRIOR TO TRIAL.
C. DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT TO AFFORD HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
We are not persuaded by any of these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 49 (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, 466 U.S. at 687, 694.
We affirm substantially for the reasons expressed by Judge Blaney in his thorough decision as 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. Accordingly, Judge Blaney correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION