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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DALE SCOTT, a/k/a BIG DALE, Defendant–Appellant.

DOCKET NO. A–0833–12T4

    Decided: March 19, 2014

Before Judges Lihotz and Hoffman.Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Peter J. Baker, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Defendant Dale Scott appeals from the denial of his petition for post-conviction relief (PCR).  On appeal, defendant argues:





We affirm.

These facts are found in the record.   On October 18, 2010, police responded to a report of burglary and theft in progress in a home in Jersey City. The responding officers spoke to Carlos Santiago who stated his pitbull began growling, and, upon investigating, he saw defendant inside his home, attempting to leave by climbing through a side window.   Santiago recognized defendant because defendant had performed yard work for his family in the four or five months preceding the incident.   Santiago reported a laptop, valued at approximately $800, was taken from the home.   Santiago provided a description of defendant, whom he described as “well[-]know[n] to him.”   When asked, Santiago identified a photograph of defendant, stating he was the man he saw inside his home.

Defendant was indicted and entered into a plea agreement.   Defendant pled guilty to third degree burglary, N.J.S.A. 2C:18–2, count one, and the State agreed to dismiss the remaining count and recommend a sentence of three years of imprisonment to run concurrent to any sentence imposed for defendant's violation of parole.   At sentencing, defendant's counsel argued for imposition of a probationary sentence with a requirement defendant attend outpatient treatment to address his substance abuse.   The judge found defendant was a poor candidate for probation and sentenced defendant to three years imprisonment.   Defendant did not file a direct appeal.

Defendant filed a petition for PCR, asserting trial counsel was ineffective because he:  (1) failed to investigate and obtain exculpatory video evidence establishing his alibi;  (2) did not challenge an unsworn statement against him, the impermissibly suggestive identification procedures and absence of fingerprint evidence;  and (3) never moved to suppress evidence and challenged the lawfulness of his arrest.   Defendant also asserted trial counsel pressured him to enter into a guilty plea.   Counsel appointed for defendant submitted a brief in support of defendant's petition adding that trial counsel failed to identify and consider applicable mitigating factors and requested an evidentiary hearing.   The judge denied the request for a hearing and denied the petition for PCR. This appeal ensued.

“ ‘Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.’ ”  State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).

It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment;  and (2) defendant suffered prejudice as a result.

[State v. L.A., 433 N.J.Super. 1, 13 (App.Div.2013) (internal citations omitted).]

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d at 674 (1984) and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L. Ed.2d 657 (1984).  Fritz, supra, 105 N.J. at 58.   To establish a prima facie case of ineffective assistance of counsel, a defendant must prove:

First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.]

Under the first prong, a defendant must demonstrate “counsel's representation fell below an objective standard of reasonableness.”  Id. at 688, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.   Thus, “this test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance․”  State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted).  “ ‘Reasonable competence’ does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless.”  State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, “[a] 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.”  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Ibid.

On appeal, defendant reiterates the arguments presented before the trial court and maintains the judge erred in denying his request for an evidentiary hearing.   Moreover, he contends PCR counsel was ineffective because he failed to include sufficient documentation, including certifications stating the factual basis supporting defendant's petition.

The trial judge reviewed the claims against trial counsel.   Starting with the assertion trial counsel failed to properly argue applicable mitigation factors, the judge thoroughly reviewed the basis of the imposed sentence.   He considered and rejected the claim to apply mitigating factor one, N.J.S.A. 2C:44–1(b)(1) (“defendant's conduct neither caused nor threatened serious harm”);  two, N.J.S.A. 2C:44–1(b)(2) (“defendant did not contemplate that his conduct would cause or threaten serious harm”);  and twelve, N.J.S.A. 2C:44–1(b)(12) (defendant willingly cooperated with law enforcement).   The judge noted factors one and two are not limited to violent offenses or crimes where the victim actually suffers harm.   Defendant was convicted of breaking a window to enter a home seeking to commit a theft, while the residents were present.   This conduct is both threatening and likely to cause serious harm.   See State v. Robinson, 289 N.J.Super. 447, 459 (App.Div.) (finding burglary involving breaking and entering into an inhabited dwelling at night placed “occupants at serious risk of harm”), certif. denied, 146 N.J. 497 (1996).   Finally, as the trial judge noted, the entry of a guilty plea does not trigger application of factor twelve.   We find no flaw in the factual basis and conclusion rejecting this claim for relief.

Next, the PCR judge correctly determined there was no basis to challenge Santiago's identification of defendant.   Santiago told police defendant's name and description when he reported the event because he knew him, after defendant worked at Santiago's house for four or five months.   This was not a first-time encounter where a victim may not accurately recall details because of the shocking experience.   See State v. Henderson, 208 N.J. 208, 231–36 (2011) (analyzing the reliability of eyewitness testimony).   The reliability of Santiago's identification was unassailable.  State v. Carter, 91 N.J. 86, 129 (1982) (stating reliability is the lynchpin of an analysis reviewing a suggestibility challenge to an identification).   The use of the photograph was designed to enable police to distribute defendant's likeness, not to determine his identity.

The remaining challenges, which include counsel should have obtained video and fingerprint evidence, moved to suppress evidence and challenge defendant's arrest are not explained.   There is nothing in the record or argued on appeal to provide a hint on the basis of these claims.   Further, the detail of PCR counsel's trial brief reflects he reviewed all facts and the assertions regarding defendant's challenges to the reliability of the identification and his sentence.   Defendant does not describe the video or what it would show;  he fails to explain why evidence should have been suppressed or describe the exculpatory nature of the claimed fingerprint evidence.

To establish a prima facie claim warranting PCR, a defendant “must allege facts sufficient to demonstrate counsel's alleged substandard performance.”   State v. Cummings, 322 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   Counsel is not ineffective for not presenting unfounded or meritless claims.  Id. at 169–70.   See State v. Savage, 120 N.J. 594, 617–18 (1990) (“[C]ounsel has a duty to make ‘reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ”  (Quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L. Ed.2d at 695)).

Defendant also omits support explaining how trial counsel “pressured [him] with threat[s] of more time and coached [him] to plead guilty.”   A review of defendant's sworn testimony in the guilty plea transcript shows that he understood his rights and the nature of the plea agreement.   Further, he stated he had not been pressured into pleading guilty and clearly stated the factual basis underlying his guilt.

Having reviewed each of defendant's claims and finding no basis to conclude trial counsel was ineffective, we also conclude the assertion PCR counsel failed to properly present these issues lacks merit.   Finally, an evidentiary hearing was not required in light of the absence of a threshold evidential dispute.   See Rule 3:22–10(b) (“A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.”).   We have no basis to interfere with the “pragmatic dimension to the PCR court's determination” to deny the request for a hearing.  State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997).



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