STATE OF NEW JERSEY v. JAMES RUSSELL

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. JAMES S. RUSSELL, Defendant–Appellant.

DOCKET NO. A–4842–11T3

Decided: March 21, 2014

Before Judges Simonelli and Haas. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel;  Meghan M. O'Neill, Assistant Prosecutor, on the brief).

Defendant James Russell appeals from the January 25, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.   We affirm.

Following a jury trial, defendant was convicted of three counts of first-degree robbery, N.J.S.A. 2C:15–1, and one count of second-degree burglary, N.J.S.A. 2C:18–2.   The trial judge sentenced defendant to three concurrent eighteen-year terms of imprisonment with eighty-five percent periods of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43–7.2. Defendant appealed his conviction and sentence.   We affirmed, and our Supreme Court denied certification.  State v. Russell, No. A–2981–06 (App.Div. Apr. 15, 2010), certif. denied, 203 N.J. 93 (2010).

In January 2011, defendant filed a PCR petition, contending in part that his trial counsel rendered ineffective assistance of counsel by failing to request a jury charge on theft from a person as a lesser-included offense of robbery, and third-degree burglary as a lesser-included offense of second-degree burglary.1  In a January 25, 2012 oral opinion, Judge Ronald E. Hoffman denied the petition, finding that it was barred by Rule 3:22–4 2  because defendant could have raised this contention on direct appeal.

Judge Hoffman nevertheless considered defendant's argument and found that there was no “rational basis” in the record to justify “a lesser-included offense instruction” to the jury.   The judge explained that a request for a lesser-included offense charge would have been inconsistent with the overall defense strategy, stating:

My understanding of the trial strategy here is that [defendant] was present, but really wasn't actively involved, was in the wrong place at the wrong time, basically.   With that theory being employed, it's really an all-or-nothing situation.   He's guilty or not guilty of that for which he's indicted.   The lesser-includeds wouldn't really make any difference and would have been contrary to the trial strategy that was utilized by counsel at the trial.

This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR [PCR].

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REQUEST THE TRIAL COURT [TO] INSTRUCT THE JURY REGARDING THEFT FROM THE PERSON AS A LESSER[-]INCLUDED OFFENSE OF ROBBERY AS WELL AS THIRD[-]DEGREE BURGLARY AS A LESSER[-]INCLUDED OFFENSE SECOND[-]DEGREE BURGLARY.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22–4.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief.   State v. Nash, 212 N.J. 518, 541 (2013);  State v. Preciose, 129 N.J. 451, 459 (1992).   To sustain that burden, the defendant must allege and articulate specific facts that “provide the court with an adequate basis on which to rest its decision.”  State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant “must do more than make bald assertions that he was denied the effective assistance of counsel.”  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance.  Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial.  Strickland v. Washington, 466 U.S. 668, 687, l04 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987).   There is a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066;  80 L. Ed.2d at 695.   Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate “how specific errors of counsel undermined the reliability” of the proceeding.  United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed.2d 657, 668 n.26 (1984).   Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy.  Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694–95.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons expressed by Judge Hoffman in his well-reasoned January 25, 2012 oral opinion.

Affirmed.

FOOTNOTES

1.  FN1. Although defendant asserted other arguments in his petition for PCR, the judge found they lacked merit and defendant has not raised these arguments on appeal.

2.  FN2. In pertinent part, Rule 3:22–4(a) provides that, subject to exceptions not applicable here, “[a]ny ground for relief not raised ․ in any appeal taken [from a conviction] is barred from assertion in” a first petition for PCR.

PER CURIAM

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