STATE OF NEW JERSEY v. CECIL GARNER

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0196-05T50196-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CECIL GARNER,

Defendant-Appellant.

____________________________________________________________

 

Submitted November 15, 2007 - Decided

Before Judges Wefing and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 94-03-0351.

Cecil Garner, appellant pro se.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Oded M. Weinstock, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Cecil Garner appeals pro se from an order dated April 29, 2005, denying his second petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm.

In 1995, a jury convicted defendant of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2) and other related offenses. Defendant was sentenced to fifty years imprisonment with thirty years of parole ineligibility. Defendant appealed his conviction, which we affirmed in an unpublished decision dated July 8, 1998. State v. Garner, No. A-4256-95T4 (App. Div. July 8, 1998). On October 27, 1998, the Supreme Court denied defendant's petition for certification. State v. Garner, 156 N.J. 418 (1998).

Thereafter, defendant filed a petition for PCR which the court denied in an October 22, 2001, order. On January 16, 2002, defendant appealed from that order. On June 2, 2003, in an unpublished decision, we affirmed. State v. Garner, No. A-2349-01T4 (App. Div. June 2, 2003). Defendant again sought certification from the Supreme Court, but was denied. State v. Garner, 178 N.J. 30 (2003).

On December 26, 2003, defendant filed a second petition for PCR. Defendant appeared at the PCR hearing pro se, and the court denied his petition. Subsequently, defendant filed a motion to vacate the dismissal and reinstate the appeal. We granted defendant's motion, thereby permitting this appeal to proceed.

Defendant raises the following argument on appeal:

POINT I: DEFENDANT WAS DENIED HIS DUE PROCESS RIGHTS TO A FAIR POST-CONVICTION RELIEF HEARING CONTRARY TO THE STATE OF NEW JERSEY AND FEDERAL CONSTITUTION.

More specifically, defendant now appeals the denial of his second PCR petition, asserting ineffective assistance of counsel with respect to his first PCR petition. Defendant contends that his first PCR counsel was ineffective by failing to meet with him and by failing to adequately pursue an intoxication defense.

Defendant's argument lacks merit. First and foremost, the intoxication defense has been previously adjudicated, barring post-conviction relief pursuant to R. 3:22-5. Rule 3:22-5 provides that: "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." See also State v. Preciose, 129 N.J. 451, 476 (1992) ("[A] prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same ground as a basis for post-conviction review."). A defendant may not use a PCR petition as an opportunity to re-litigate a claim already decided on the merits. State v. McQuaid, 147 N.J. 464, 483 (1997).

PCR counsel addressed the issue of whether defendant's intoxication should have been raised at trial during defendant's first PCR hearing. The court, having entertained PCR counsel's argument as to this issue, rejected the defense because "there are no facts, other than the defendant saying I was intoxicated" that would support such a contention. Accordingly, defendant is procedurally barred from raising this argument for a second time on appeal.

Defendant maintains that PCR counsel's failure to communicate with him constitutes ineffective assistance of counsel because had PCR counsel spoken to him, he would have provided counsel with additional information to support the intoxication defense. PCR counsel had an obligation to communicate with his client and investigate claims during the course of defendant's first PCR hearing. State v. Rue, 175 N.J. 1, 18 (2002); State v. Gaither, 396 N.J. Super. 508, 786 (App. Div. 2007). However, any alleged failure on PCR counsel's part to communicate with defendant does not rise to the level of ineffective assistance of counsel under the Strickland/Fritz test adopted in New Jersey. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984); State v. Fritz, 105 N.J. 42 (1987).

In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy both prongs of the Strickland/Fritz test. Under the first prong, a defendant must show that trial counsel's representation was deficient. Fritz, supra, 105 N.J. at 52. Under the second prong, defendant must demonstrate "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. To be prejudicial, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Generally, prejudice is not presumed. Fritz, supra, 105 N.J. at 63.

As alluded to above, the alleged failure of counsel to communicate with defendant may violate the first prong of the Strickland/Fritz test; however, defendant cannot establish that the lack of communication was prejudicial. Defendant asserts that if counsel consulted with him, he would have supplied counsel with a list of names of numerous individuals that could have testified as to defendant's intoxication on the night of the murder. Even so, this overlooks the testimony presented at trial that defendant's toxicology test revealed the absence of intoxicants, including alcohol and marijuana. Based on the existence of such contrary objective evidence, we conclude that the testimony of defendant's potential witnesses would not have helped support his intoxication defense. Thus, PCR counsel's alleged failure to inquire about the testimony of potential witnesses did not deprive defendant of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Based on the foregoing, the denial of defendant's second PCR petition is affirmed.

Affirmed.

 

The underlying facts of the case are not critical to defendant's present appeal and have been discussed in defendant's prior appeal, Garner, supra, No. A-4256-95T4 at 1-3; therefore, we need not address them at length herein.

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6

A-0196-05T5

April 14, 2008