STATE OF NEW JERSEY v. TYRONE HOLLOWAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1495-04T41495-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE HOLLOWAY,

Defendant-Appellant.

 

Submitted September 13, 2006 - Decided October 12, 2006

Before Judges Parrillo and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 99-03-0398.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tyrone Holloway appeals from the August 12, 2004 order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with second-degree conspiracy, N.J.S.A. 2C:5-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon (an iron) for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree possession of a weapon (an iron) under manifestly inappropriate circumstances, N.J.S.A. 2C:39-5d; second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful restraint, N.J.S.A. 2C:13-2. All of these charges arose out of an incident during which defendant, with the assistance of his co-defendant, burned the victim on her face and hands with a hot iron in retaliation for a purported theft of money from a family member.

Following a jury trial in 1999, defendant was found guilty of each of the charges. Defendant was sentenced to a ten-year term of imprisonment for aggravated assault, to which the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied. The conspiracy count merged for sentencing purposes and the sentences on each of the other counts were imposed to be served concurrently. On appeal, defendant challenged the adequacy of the jury charge, the trial judge's failure to merge certain of the offenses, the imposition of a NERA period of parole ineligibility and the alleged excessiveness of the sentence. We affirmed in an unpublished opinion, State v. Holloway, No. A-5796-99T4 (App. Div. Apr. 24, 2002), and the Supreme Court denied defendant's petition for certification. State v. Holloway, 175 N.J. 76 (2002).

Defendant's PCR petition asserted that he was deprived of the effective assistance of both trial and appellate counsel in several respects. Specifically, he argued that his trial counsel was ineffective in failing to object to references to defendant's post-arrest silence that were made by counsel for one of his co-defendants during cross-examination of defendant. In addition, he contends that his trial counsel was ineffective in failing to object to two statements made by the prosecutor during cross-examination of defendant concerning the inconsistencies between defendant's testimony and that of the victim. Defendant also asserted that his appellate counsel was ineffective in failing to raise either of these arguments as a part of defendant's direct appeal. Finally, he argued that the sentence that was imposed upon him was excessive and he sought relief through the PCR petition in the nature of a reduction of the sentence. The PCR judge considered each of these assertions during oral argument on the petition and he rejected each of them for reasons that he expressed on the record at the close of the argument.

On appeal, defendant raises each of the issues that he presented in the PCR petition and he argues that the judge erred in deciding the issues without affording him an evidentiary hearing. In addition, he asserts that the sentence imposed upon him is both excessive and in violation of his constitutional protections as expressed by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We have considered these arguments in light of the record and the applicable legal precedents and have concluded that they are not of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm and add only the following observations.

First, each of the substantive arguments that forms the basis for defendant's claims about the effectiveness of trial counsel could have been raised on direct appeal. Because they were not, defendant is precluded from raising them in the context of a PCR petition. R. 3:22-4.

Second, were we to consider these arguments, we would find each of them to be without merit. There was no impermissible comment on defendant's post-arrest silence because, in fact, defendant did not remain silent. Instead, he voluntarily spoke with a detective following his arrest. The cross-examination questions which he now asserts should have been the focus of an objection by his trial counsel were permissible questions that explored inconsistencies between that statement to the detective and defendant's testimony during the trial. See State v. Caraballo, 330 N.J. Super. 545, 556 (App. Div. 2000); N.J.R.E. 803(a)(1). The comments made by the prosecutor, which the PCR judge referred to as "argumentative" and objectionable, cannot support relief because trial counsel's failure to object could not have prejudiced defendant nor interfered with his right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The evidence against defendant, including the testimony of his brother and of the victim that it was defendant who pressed the hot iron to the victim's face, was so overwhelming that a timely objection to the single exchange between the prosecutor and defendant about which version of events made sense could not have altered the outcome. Similarly, in light of the fact that none of these arguments has merit, the failure of counsel to raise them on direct appeal cannot demonstrate ineffective assistance of appellate counsel.

Third, we reject defendant's argument that the PCR judge erred in deciding the issues without convening an evidentiary hearing. It is well-settled that an evidentiary hearing is not required in the absence of a prima facie showing of remediable ineffectiveness. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Remediable ineffectiveness requires a showing that counsel's performance was deficient as measured by the community standard and that the defective performance prejudiced defendant's right to a fair disposition. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Tested against that standard, defendant's argument that he was entitled to an evidentiary hearing lacks merit.

Finally, we reject each of the arguments raised in the PCR petition and on appeal about defendant's sentence. The assertions concerning excessiveness and the application of NERA were decided on direct appeal and may not, therefore, be raised anew in the context of a PCR petition. R. 3:22-5. Furthermore, to the extent that defendant now seeks to challenge his sentence on constitutional grounds, he is precluded from doing so. Defendant did not raise the Blakely claim in the PCR proceeding below and for that reason alone is barred from raising it in this appeal. See State v. J.M., 182 N.J. 402, 410 (2005); State v. McGraw, 129 N.J. 68, 81 (1992); State v. Churchdale Leasing, Inc., 115 N.J. 83, 100-01 (1989). Even were that not true, as our Supreme Court has held, see State v. Natale, 184 N.J. 458, 494 (2005), Blakely has been given pipeline retroactivity, as a result of which it applies only to defendants with cases on appeal as of the date of the decision, August 3, 2005, who have raised Blakely claims at trial or on direct appeal. Ibid. Here, because Blakely arguments were not raised at sentencing, on direct appeal or even in defendant's PCR petition, this matter is not in the Blakely pipeline.

Affirmed.

 

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A-1495-04T4

October 12, 2006