STATE OF NEW JERSEY v. TYRONE WILSON

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4863-03T44863-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE WILSON,

Defendant-Appellant.

___________________________

 

Submitted September 13, 2005 - Decided

Before Judges Collester and Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, 94-10-0613.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor,

attorney for respondent (J. Vincent Molitor,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from a Law Division order denying his application for post-conviction relief (PCR) pursuant to R. 3:22-1 to -12. We affirm.

Tried to a jury, defendant Tyrone Wilson was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1). In a continued proceeding under a separate but related indictment, the trial court, based on the evidence submitted to the jury and additional evidence relating to defendant's criminal record, found defendant guilty of second-degree possession of handgun by a convicted person. N.J.S.A. 2C:39-7b. Defendant received an aggregate sentence on all convictions of life plus thirty years, thirty-seven and one half years to be served before parole eligibility. We affirmed the conviction and sentence on direct appeal. State v. Wilson, 335 N.J. Super. 359-73 (App. Div. 1999). Following the granting of defendant's petition for certification, the Supreme Court affirmed our decision in State v. Wilson, 165 N.J. 657, 662 (2002). On August 14, 2002, defendant filed a pro se petition for PCR and was afforded counsel to represent him on the application. On August 21, 2003, defendant filed a letter in lieu of motion for recusal of the trial judge. Defendant's application for recusal and his petition for PCR relief were denied following a written decision of Judge Carmen H. Alvarez. Defendant makes the following arguments on appeal:

POINT I - THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COURT FAILED TO EXPLAIN THE PLEA OFFER IN DETAIL.

B. COUNSEL FAILED TO CHALLENGE THE JURY POOL.

C. COUNSEL FAILED TO PROVIDE DR. WEISS WITH ALL RELEVANT INFORMATION RESULTING IN AN INABILITY TO UTILIZE HIS TESTIMONY WHICH COULD HAVE ALTERED THE JURY'S VERDICT.

D. COUNSEL COMMITTED SO MANY ERRORS AS TO HAVE BEEN INEFFECTIVE.

POINT II - THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III - THE LOWER COURT ERRED DENYING DEFENDANT'S PETITION WITHOUT CONDUCTING AN EVIDENTIARY HEARING.

POINT IV - THE LOWER COURT ERRED IN DENYING THE PETITION SINCE THE JURY CHARGE WAS INADEQUATE.

POINT V - THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECUSAL.

POINT VI - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED.

PCR is New Jersey's analogue to the federal writ of habeas corpus, providing a defendant with a means to challenge the legality of a sentence or final judgment of conviction for reasons which could not have been raised on direct appeal. See State v. Santiago, 104 N.J. Super. 110, 115 (Law Div. 1968), aff'd o.b., 107 N.J. Super. 243 (App. Div. 1969). PCR is a "safeguard to insure that a defendant was not unjustly convicted." State v. McQuaid, 147 N.J. 464, 482 (1997). A PCR claim must be established by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992); State v. Mitchell, 126 N.J. 565, 579 (1992). Defendant's ineffective assistance of counsel argument is rooted in the Sixth Amendment which guarantees a criminal defendant the right to an attorney. A defendant must demonstrate the reasonable likelihood of succeeding under a two-pronged test set forth 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, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Viewing all evidence in the light most favorable to the defendant when deciding the question of whether defendant has established a prima facie claim, the two-pronged test is as follows: (1) whether counsel's performance was deficient; (2) whether there exists "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 699.

In applying the first prong of the Strickland test, the court must determine whether trial counsel's performance was deficient and fell below an objective standard of reasonableness. This requires a showing that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687; 104 S. Ct. at 2064; 80 L. Ed. 2d at 693. The defendant has the burden of proving the constitutional violation because there is a strong presumption that a "lawyer is competent to provide the guiding hand a defendant needs." Cronic, supra, 466 U.S. at 658; 104 S. Ct. at 2046; 80 L. Ed. 2d at 667. The standard of measuring effective of counsel is a comparison to other attorneys in the field.

Adequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field. This has been equated with a standard of "reasonable competence." "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).]

In evaluating trial counsel's performance, the court must consider the assistance as of the time of performance and without the benefit of hindsight to suggest different strategies that an attorney may have pursued. The law is settled that strategic choices are generally unchallengeable. Strickland, supra, 466 U.S. at 690; 104 S. Ct. at 2066; 80 L. Ed. 2d at 695.

The second prong of the test requires a defendant to prove actual prejudice by the alleged deficient performance of counsel. That is, the defendant must prove that but for the alleged incompetence, there was a reasonable probability that 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; Cronic, supra, 466 U.S. at 658; 104 S. Ct. at 2046; 80 L. Ed. 2d at 667. In determining whether or not the defendant was prejudiced, we must look to the totality of circumstances and may take into consideration the weight of the State's evidence against the defendant.

Applying the Strickland/Cronic/Fritz standard to the facts of this case, we find that defendant failed to satisfy either prong of the test. The record substantiates the PCR court's finding that defendant was adequately and properly advised of the State's pre-trial plea offer. His belated claim that his attorney should have moved to challenge the jury pool is belied by the trial record which shows that he elected to go forward with the jury pool and deemed the final jury acceptable. Counsel's decision not to call Dr. Weiss as a witness was an appropriate exercise of trial strategy since he could be confronted with defendant's criminal record for violent crimes in front of the jury. Finally, defendant's claim of entitlement to an evidentiary hearing on his PCR application has no merit. Evidentiary hearings are not required on PCR petitions, although discretion may be exercised to grant a hearing under R. 3:22-10. Preciose, supra, 129 N.J. at 462. The judge was fully familiar with the facts of the case and knew the work performed by counsel so that she could properly evaluate the claim of ineffective assistance without the need for a hearing. R. 3:22-10.

Our independent review of the record satisfies us that defendant did not satisfy the Strickland/Cronic/Fritz test. We therefore affirm substantially for the reasons set forth by Judge Alvarez in her letter opinion of January 9, 2004. The remaining issues raised by defendant are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

7

A-4863-03T4

September 23, 2005

 


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