STATE OF NEW JERSEY v. EVELYN HUTCHINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6554-03T46554-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EVELYN HUTCHINS,

Defendant-Appellant.

__________________________________

 

Submitted October 25, 2005 - Decided

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 97-05-0818 and 97-05-0819.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean B. Bennett, Designated Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Leo J. Hurley, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant guilty in a consolidated trial of two indictments of first-degree armed robbery and second-degree robbery, both in violation of N.J.S.A. 2C:15-1. The trial court imposed an extended term sentence of life imprisonment, with twenty-five years parole ineligibility, for the armed robbery, and a concurrent ten-year term, with five years of parole ineligibility, for the second-degree robbery. On appeal, we affirmed the conviction and sentence in an unreported opinion. State v. Hutchins, No. A-5580-98T4 (decided Oct. 2, 2000). The Supreme Court denied defendant's petition for certification. 167 N.J. 629 (2001).

Defendant filed a petition for post-conviction relief, claiming that she received ineffective assistance of trial counsel, consisting of his alleged failure to investigate avenues of defense, to file a notice of alibi, to call witnesses who could have supported his theory of the case and to vigorously challenge defendant's identification by the victim of one of the robberies. By an oral opinion issued on June 14, 2004, the trial court denied defendant's petition.

On appeal, defendant presents the following arguments:

I. THE JUDGE BELOW ERRED IN HOLDING THAT THE DEFENDANT FAILED TO ESTABLISH THAT SHE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL FOR FAILURE TO ARGUE THAT THE IMPOSITION OF THE DISCRETIONARY OFFENDER EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Callahan's oral decision of June 14, 2004. The record indicates that the Public Defender's office conducted a reasonable investigation of potential defense witnesses, that defendant has failed to present a prima facie case as to any additional investigation that should have been conducted, and that any failure by defense counsel to call potential witnesses revealed by the investigation that was conducted would not have affected the outcome. We also note that defendant did not submit affidavits in connection with his petition for post-conviction relief from any of the persons interviewed.

Affirmed.

 

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A-6554-03T4

November 3, 2005