STATE OF NEW JERSEY VS. ERIC NA-EEM ROCK

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

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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

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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.

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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

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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

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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

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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

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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

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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).

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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

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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.

Because defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.

Affirmed.