STATE OF NEW JERSEY v. FURAD LOYAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4061-07T44061-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FURAD LOYAL a/k/a

SHAIDEE FLEMING, FURAD KING,

MURAD H. LOYAL, ALSLEEM PERRY,

Defendant-Appellant.

________________________________

 

Submitted May 28, 2009 - Decided

Before Judges Axelrad and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0360.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Jennifer C. Fetterman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Furad Loyal appeals from a November 27, 2007 Law Division order denying his motion for post-conviction relief (PCR). On appeal, he presents the following arguments for our consideration:

POINT I

DEFENDANT WAS NOT PROCEDURALLY BARRED FROM RAISING ADDITIONAL INEFFECTIVENESS OF COUNSEL CLAIMS IN HIS PCR PETITION THAT WERE NOT EXPRESSLY ADJUDICATED BY THE APPELLATE DIVISION ON DIRECT APPEAL.

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL/APPELLATE COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.

A. TRIAL AND/OR APPELLATE COUNSEL FAILED TO RAISE THE TRIAL COURT'S INADEQUATE ACCOMPLICE LIABILITY INSTRUCTION.

B. TRIAL COUNSEL FAILED TO ADVISE DEFENDANT OF THE POTENTIAL PIT-FALLS [OF] HIS TESTIFYING.

We affirm.

A jury convicted defendant of armed robbery, weapons offenses, and resisting arrest in connection with a robbery at gunpoint of four employees of National Electronic Transit as they delivered a copy machine to an elementary school. Defendant was sentenced to an aggregate term of eighteen years imprisonment, subject to the 85% parole disqualification period imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Loyal, Docket No. A-6160-01T4 (App. Div. Dec. 17, 2003). Certification was denied on December 6, 2005.

Defendant filed a pro se petition seeking PCR. Thereafter, counsel was appointed and filed a supplemental brief asserting additional requests arguing defendant's conviction should be overturned or, alternatively, his sentence should be modified.

In a written opinion, Judge Vena addressed seven claims defendant presented alleging trial and appellate counsels' deficient representation. The court denied the request for an evidentiary hearing and any further relief. This appeal ensued.

The analytic framework controlling our review is well recognized. In deciding whether there was any error in the trial judge's denial of a PCR petition, we must first establish whether defendant raised proper grounds. Grounds for relief are set forth in Rule 3:22-2. Any matter, which could have been raised on direct appeal but was not, cannot be a basis for relief unless it could not have reasonably been raised before enforcement of the bar, would result in fundamental injustice or denial of relief would be unconstitutional. R. 3:22-4. Additionally, any matter expressly adjudicated in a prior proceeding cannot be raised. R. 3:22-5. A claim for ineffective assistance of counsel is rarely barred if not raised on direct appeal because it falls within the narrow exception of Rule 3:22-4(c). However, if an ineffective assistance of counsel claim has been raised on direct appeal and the record on appeal was adequate to permit adjudication of the issue, it will be foreclosed on a post-conviction application. Pressler, Current N.J. Court Rules, comment 5 to R. 3:22-4 (2009).

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion to determine whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2009); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

Defendant's first challenge suggests there is no procedural bar under Rule 3:22-5, which precludes presentation in a PCR petition of ineffective assistance of counsel claims not previously adjudicated. On direct appeal, defendant raised only a claim related to counsel's alleged failure to challenge a witness's initial statement during the Wade hearing. We rejected defendant's assertion and affirmed his conviction. State v. Loyal, Docket No. A-6160-01T4 (App. Div. Dec. 17, 2003) (slip op. at 9). In his PCR petition, defendant presented not only this issue, but six other bases of trial counsel's alleged ineffective representation.

We agree with defendant on this point. A defendant's appeal raising a specific instance of counsel's deficient representation will not preclude presentation of other instances of alleged ineffective assistance in a PCR petition. R. 3:22-4(c). Rule 3:22-5 requires "a prior adjudication on the merits." The procedural bar precludes "'reassertion of the same ground as a basis for post-conviction review.'" State v. McQuaid, 147 N.J. 464, 484 (1997) (quoting Preciose, supra, 129 N.J. at 476). However, claims that differ from those asserted below will be heard on PCR. Ibid.

Judge Vena correctly noted the first point raised in defendant's PCR petition matched the issue we determined on appeal. Thus, further consideration is barred. R. 3:22-5. The remaining six points listed in defendant's petition were addressed substantively by Judge Vena. Before us, defendant limits his appeal to trial counsel's failure to object to an alleged inadequate jury instruction on accomplice liability, the failure to properly counsel defendant regarding his right to decline to testify, and the trial court's denial of an evidentiary hearing to air defendant's PCR claims.

Defendant suggests the accomplice liability charge used by the court was vague and omitted specific references to the facts of the case. Defendant's claim is not specific and fails to articulate why the charge used, which tracked the Model Charges, was deficient. Moreover, defendant fails to explain how a different charge would have altered the trial's outcome. Thus, we reject defendant's "bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170.

At trial, defendant testified on his own behalf. Well before defendant took the stand, he was questioned by Judge Vena. Defendant argues the judge's inquiry regarding his waiver of his rights does not establish that trial counsel "advised defendant of his right and the potential pitfalls by [sic] exercising that right." We reject this argument.

When informed by counsel of defendant's intention to testify, the judge exercised his discretion and addressed defendant directly to inform him of his constitutionally protected right not to testify. Defendant acknowledged he understood he was not obligated to testify.

We find defendant's contention lacking. Our review of the record satisfies us that the decision to testify was made by defendant with the advice of counsel. State v. Bogus, 223 N.J. Super. 409, 424 (App. Div.), certif. denied, 111 N.J. 567 (1988).

In light of the proper disposition of defendant's claims, Judge Vena correctly determined there was no need for an evidentiary hearing. The record fully supports the court's findings and conclusions. Accordingly, we affirm substantially for the reasons stated by Judge Vena in his written opinion rendered on November 27, 2007.

 
Affirmed.

The notice of appeal was received beyond the forty-five days ordinarily allowed for an appeal but was accepted for filing as timely.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-4061-07T4

July 23, 2009