STATE OF NEW JERSEY v. MICHAEL MYERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1218-04T41218-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MYERS,

Defendant-Appellant.

___________________________________

 

Submitted December 21, 2005 - Decided January 26, 2006

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 01-07-1277-C.

Yvonne Smith Segars, Public Defender,

attorney for appellant (David A. Snyder,

Designated Counsel, of counsel and on

the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Jeanne Screen, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). Having reviewed the record in light of the contentions advanced on appeal, we affirm.

Tried to a jury, defendant was convicted of third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree attempted criminal trespass, N.J.S.A. 2C:18-3. The trial court imposed an aggregate sentence of six and one-half years, consecutive to a sentence defendant was serving for a violation of probation. Defendant appealed, and we affirmed his convictions and sentence. State v. Myers, No. A-4068-01 (App. Div. November 14, 2002). The Supreme Court denied certification. 175 N.J. 548 (2003).

In 2004, defendant filed a pro se petition seeking post-conviction relief. Counsel assigned to represent defendant in connection with this petition prepared a brief on his behalf and argued orally before the trial court. The trial court denied the petition without conducting a plenary hearing.

On appeal, defendant raises the following contentions:

POINT ONE

THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING

A. The trial court committed error by not instructing the jury on the lesser included charge of attempted trespass in the absence of a request by counsel.

B. Trial counsel was ineffective for not objecting to various acts of prosecutorial misconduct.

Every defendant in a criminal action is entitled to effective assistance of counsel. State v. Sugar, 84 N.J. 1, 17 (1980). To sustain a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel).

The "benchmark" for judging an incompetency claim "must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93. A defendant claiming incompetent representation must demonstrate, first, that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "The 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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This standard has been expressly adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). Accordingly, it guides and informs our analysis of defendant's appeal.

At the outset, we disagree with defendant's assertion that a plenary hearing was required. Each of defendant's contentions that he had not received the effective assistance of counsel could be reviewed and determined from the record alone, without the necessity of testimony.

Further, we reject defendant's assertion that the trial court erred in not submitting to the jury whether defendant's actions constituted the disorderly persons offense of attempted criminal trespass, as opposed to a crime of the fourth degree. We do so for two reasons. First, the contention is one which could have been raised on direct appeal. Defendant is, thus, barred from raising it in a later petition for post-conviction relief. R. 3:22-4.

Even apart from the procedural bar, we are satisfied that the argument lacks merit. Under our criminal code, there is no disorderly persons offense of attempted criminal trespass. State v. Clarke, 198 N.J. Super. 219, 225 (App. Div. 1985) (noting that "[a]n attempt to commit a disorderly persons offense is not itself an offense").

 
Defendant's remaining contention is that his attorney was ineffective for not objecting to certain instances of alleged prosecutorial misconduct. Again, we disagree. We note, moreover, that this argument is also procedurally barred. On defendant's direct appeal, we rejected his contention that the prosecutor's summation was improper. R. 3:22-5. We stated in our opinion that "the only objectionable comment by the prosecutor had virtually no potential for affecting the verdict." State v. Myers, supra (slip op. at 3). Defendant is, thus, unable to establish the second prong of the Strickland-Cronic test--a "reasonable probability" that the verdict would have been different if counsel had interposed an objection. The order under review is affirmed.

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A-1218-04T4

January 26, 2006