Opinion
DOCKET NO. A-3951-13T3
01-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES H. SCOTT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-05-0414. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant James Scott appeals from the July 24, 2013 order denying his petition for post-conviction relief (PCR) without oral argument. We affirm.
After a search warrant produced evidence linking Scott to several recent area robberies, he was arrested and charged with crimes, including conspiracy, that were committed on five separate dates in April and May 2003.
Following a jury trial, Scott was convicted of nine counts of robbery, three counts of aggravated assault, weapon offenses and other charges. Scott also pled guilty to an offense charged under a separate indictment. He was acquitted on the charge of conspiracy. Scott was sentenced to an aggregate term of forty-three years subject to the No Early Release Act period of parole ineligibility and parole supervision.
In August 2010, we affirmed Scott's convictions and sentence. State v. Scott, No. A-0853-06 (App. Div. Aug. 27, 2010), certif. denied, 205 N.J. 518 (2011). He filed a pro se PCR petition on May 3, 2011, and thereafter a brief was filed by assigned counsel. Scott asserted that his trial counsel was constitutionally ineffective in his failure to seek a severance of the charges, and appellate counsel was also deficient in failing to raise the same issue in the direct appeal.
Without conducting oral argument, the judge denied the PCR petition for reasons expressed in a thorough written decision. After his analysis of Scott's argument, the judge concluded that defendant was "unable to demonstrate a reasonable probability that a motion to sever would have been successful under the terms of Rule 404(b)." He further concluded that "defendant suffered no more prejudice during his joint trial than he would have at separate trials." He found that Scott had failed to make the requisite showing to be entitled to oral argument or an evidentiary hearing and that Scott had failed to prove that he was denied effective assistance of counsel. This appeal followed.
Scott raises the following issue on appeal:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S PETITION WITHOUT AFFORDING DEFENDANT AN OPPORTUNITY TO PRESENT ORAL ARGUMENT OR SECURING A CERTIFICATION FROM PCR COUNSEL WAIVING ORAL ARGUMENT.
"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 (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. Mitchell, supra, 126 N.J. at 579.
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 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, 58 (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.
We find insufficient merit in Scott's argument to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth by the trial judge in his written decision. We add only the following brief comments.
As the trial judge properly noted, there is a general presumption in favor of oral argument for an initial petition for post-conviction relief. State v. Parker, 212 N.J. 269, 283 (2012). If, however, the trial judge determines that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary. Id. at 282.
The judge concluded that defendant's argument failed to account for the conspiracy charge made against him and, although he was acquitted of that offense, the State was entitled to introduce evidence of each charged incident as proof of the conspiracy. He therefore determined that Scott had failed to present a legal argument that set forth a prima facie case for relief, therefore rendering oral argument unproductive. As Scott has not demonstrated that his PCR petition presented any complexities or that the purposes underlying the post-conviction procedure would be furthered by oral argument, we do not find an abuse of discretion in its denial here.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION