Opinion
DOCKET NO. A-2989-14T3
05-31-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC NA-EEM ROCK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-10-2332. Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Eric Rock appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Having considered defendant's arguments in light of the record and controlling law, we affirm.
In October 2007, defendant was indicted by a Monmouth County Grand Jury, charging him with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one and two); one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-(7)(b)(1) (count five). The charges against defendant arose from a July 4, 2006 robbery in Red Bank.
On January 27, 2009, defendant appeared before the trial judge for a pretrial conference, which included the disposition of several motions. The judge granted defendant's motion to suppress statements he made to a Red Bank police officer on July 2, 2007. The State moved to introduce defendant's prior convictions for fourth-degree evidence tampering and second-degree aggravated assault, to impeach defendant's credibility should he choose to testify. Following a Sands hearing, the judge granted the motion, but ordered the convictions sanitized. See State v. Brunson, 132 N.J. 377 (1993); State v. Sands, 76 N.J. 127 (1978). The State also moved to introduce statements made to police by two witnesses, should either testify inconsistently with the prior statement. Following a Gross hearing, the judge determined both statements, with certain redactions, would be admissible. See State v. Gross, 121 N.J. 1 (1990). On February 3, 2009, the judge supplemented his previous ruling and also granted defendant's motion for an order compelling the deposition of his mother.
A jury convicted defendant on counts one through four on April 2, 2009. In a second trial the same day, the jury convicted defendant on count five. Defendant moved for a new trial, which the judge denied on May 28, 2009. On July 9, 2009, defendant was sentenced on counts one and two to a sixteen-year term in state prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Count three was merged with counts one and two. Defendant was sentenced to a five-year term on count four with a two-year parole disqualifier, and an eight-year term on count five with a five-year parole disqualifier. Counts four and five were to run concurrent to counts one and two. Additional fines and penalties were imposed.
Defendant filed a notice of appeal on February 3, 2010. We affirmed defendant's conviction and sentence in an unpublished opinion on January 24, 2012. State v. Rock, No. A-2636-09 (App. Div. Jan. 24, 2012), certif. denied, 211 N.J. 274 (2012).
Defendant filed a PCR petition on April 30, 2013, which was amended by designated counsel and supplemented thereafter. Oral argument on the petition was heard on October 24, 2014. The PCR judge issued an order and twenty-two-page written opinion denying the petition in its entirety on October 28, 2014. This appeal followed.
Defendant raises the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] 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.
POINT A
THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR [PCR]
POINT B
TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HIS FAILURE TO CONSULT WITH DEFENDANT PRIOR TO TRIAL TO REVIEW THE EVIDENCE, TO DISCUSS ALL POSSIBLE DEFENSES, AND TO INVESTIGATE AND SECURE ALIBI WITNESSES.
POINT C
TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HIS FAILURE TO VIGOROUSLY ARGUE ON DEFENDANT'S BEHALF AT SENTENCING AND TO PRESENT ALL MITIGATING FACTORS THAT APPLIED TO DEFENDANT.
POINT D
APPELLATE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HIS FAILURE TO COMMUNICATE WITH DEFENDANT PRIOR TO FILING AND ARGUING DEFENDANT'S APPEAL.
POINT E
APPELLATE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HIS FAILURE TO RAISE ALL FAILURES OF TRIAL COUNSEL ON APPEAL.
POINT F
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 AND APPELLATE COUNSEL.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision[]" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). "[W]here the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) (citing Harris, supra, 181 N.J. at 420-421). A PCR court's interpretations of law are provided no deference and are reviewed de novo. State v. Nash, 212 N.J. 518, 540-41 (2013).
Defendant contends his trial counsel was ineffective because counsel failed to discuss evidence and defenses with defendant, secure alibi witnesses, obtain defendant's mother's deposition, or argue in favor of mitigating factors at sentencing. He also argues that appellate counsel was ineffective by failing to communicate with defendant in connection with the appeal or point out all of trial counsel's shortcomings. We disagree and affirm substantially for the reasons set forth in the comprehensive and well-reasoned opinion of Judge John T. Mullaney. We briefly add the following.
We note at the outset that the proofs at trial were overwhelming. See Rock, supra, slip op. at 26-31 (denying defendant's argument on direct appeal that the trial judge should have set aside the verdict as against the weight of the evidence). Moreover, our review of the record reflects that trial counsel met with defendant on several occasions, secured defendant's mother's deposition testimony, and presented the testimony of two alibi witnesses at trial. We also note, as Judge Mullaney did, that defendant did not express discontent with counsel until just before jury selection; yet defendant admitted that he discussed a potential plea deal on multiple occasions with trial counsel and stated that he and trial counsel "were on the same page . . . ."
Defense counsel's alleged failure to communicate with defendant is supported only by self-serving assertions and bare allegations. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."). Defendant has not offered any other affidavits or certifications from proposed alibi witnesses. Ibid. Nor has he asserted any specific facts that would have been revealed based upon the personal knowledge of any proposed witness. Ibid. "Adequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). Applying the same test, we reject defendant's claims regarding his appellate counsel as vague and unsupported. Cummings, supra, 321 N.J. Super. at 170.
Defendant's argument that trial counsel failed to address mitigating factors at sentencing is without merit. Counsel forcefully argued on behalf of defendant at sentencing, which resulted in a merger of several counts, concurrent sentences, and an aggregate term well below that allowed by law. Even were we to find that counsel provided ineffective assistance by his failure to forcefully argue in favor of mitigating factors, defendant has not demonstrated how the sentence imposed would have been different.
Stated differently, there is nothing in the record demonstrating that the trial judge would have sentenced defendant to a lower term. Defendant's argument on appeal regarding the applicability of and lack of argument by his trial counsel as to mitigating factors four ("substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"), eight ("defendant's conduct was the result of circumstances unlikely to recur"), and nine ("character and attitude of the defendant indicate that he is unlikely to commit another offense"), N.J.S.A. 2C:44-1(b), is insufficient to support a holding, by the standard we employ, of ineffective assistance of counsel. Given the trial and sentence record, the judge's finding both as to the aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a), and no mitigating factors militates against a finding that mitigating factors four, eight, and nine would have been applicable even if specifically argued.
Defendant's sentence was addressed in his direct appeal, Rock, supra, slip op. at 31-33 (holding that the trial judge's "conclusion that there were no mitigating factors is supported by the record"), and the issue he raises in this appeal is therefore barred from consideration. R. 3:22-5 (stating that prior adjudications upon the merits of any ground for relief is conclusive, and prohibiting the issue from being raised in a PCR petition).
Succinctly, the record lacks any support that trial counsel's performance was deficient or that he was not functioning in a manner guaranteed by the Sixth Amendment. See State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Defendant has failed to offer any specific instances, acts, or omissions constituting ineffective assistance of counsel. See State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). Therefore, he has not set forth a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 463.
Defendant has similarly failed to demonstrate how any alleged deficiency or the cumulative effect of those alleged deficiencies resulted in a prejudice, that is, that there is "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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52 (citation omitted).
For the reasons stated above, we reject defendant's argument as well that the judge erred in denying his petition without an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2016). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. Because defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION