STATE OF NEW JERSEY v. JAMES W. COBB

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5530-07T45530-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES W. COBB,

Defendant-Appellant.

_____________________________________

 

Submitted May 20, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-05-0557.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Joie Piderit, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief ("PCR"). He was convicted by a jury in April 2002 of murder and weapons offenses, and sentenced to life imprisonment with thirty years to be served before parole eligibility for the murder, and to a consecutive five-year term for possession of a handgun without a permit.

Defendant shot and killed the boyfriend of his former girlfriend. Defendant went to the girlfriend's apartment, knowing the victim was there, found him in the bedroom and shot him three times. The contested proofs related to defendant's mental condition and culpability. Defendant produced Dr. Donald James Franklin, a psychologist, at trial who testified that defendant was suffering from "borderline personality disorder" at the time of the shooting, was in a "disassociate[d]" mental state, and was unable to act purposely or knowingly. The State's expert, Dr. Louis Schlesinger, a forensic psychologist, opined that defendant did not have a "borderline personality disorder" and could act "purposely or knowingly" at the time of the shooting.

The trial judge charged the jury on diminished capacity and passion/provocation, but not aggravated manslaughter.

On his direct appeal, we rejected the defendant's contention that he was entitled to the charge on aggravated manslaughter because, if Dr. Franklin was found credible, defendant would have been entitled to an acquittal, so that the requested "lesser-included charge was not consistent with defendant's diminished capacity defense." We affirmed the conviction without prejudice to this PCR because of questions counsel asked "about defendant's prior assaultive and violent behavior" although they appeared to be related to the passion provocation and diminished capacity defenses.

On this appeal from the denial of PCR, defendant argues only:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED DUE TO TRIAL COUNSEL'S FAILURE TO ADEQUATELY PURSUE A PSYCHIATRIC/ DIMINISHED CAPACITY DEFENSE.

At the PCR hearing and in his brief before us, however, defendant also argues that his trial counsel was selected by A. Kenneth Weiner, the attorney defendant retained, after Weiner became involved or preoccupied by personal ethics concerns, and that trial counsel was generally inexperienced and ineffective.

There is no dispute that defendant retained Weiner, then a respected and experienced criminal defense attorney, to represent him. However, we are told that due to Weiner's ethical problems, he referred the matter to a per diem attorney to try the case. Defendant also states Dr. Franklin "was wholly unprepared and unqualified to advance defendant's compelling psychiatric/diminished capacity defense," even though Dr. Franklin had testified he had been qualified as an expert "35 to 50 times perhaps" and testified in criminal cases about "20 times."

Irrespective of what defendant may have done before trial or the remedy he may have against the attorney he retained, Weiner did not try the case. Thus, we generally agree with the PCR judge that the issue is whether defendant made a sufficient showing of ineffective assistance by trial counsel who defended the matter. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As Judge Stolte said, the issue must focus on the effectiveness and performance of the trial counsel, and based upon what is presented on this appeal, there is absolutely no basis in the record on which to conclude the result may have been different if another attorney tried the case or a different forensic expert testified for defendant.

We do not preclude a PCR if retained counsel abandoned the case, or didn't take the actions he should have before securing trial counsel, as a result of personal concerns. Cf. State v. Cottle, 194 N.J. 449 (2008) (attorney under indictment in same county). However, the record contains no pretrial proceedings and no certification whatsoever about what retained counsel did or did not do. Moreover, Weiner was not suspended until July 23, 2004, over two years after defendant was convicted and sentenced. In re Weiner, 180 N.J. 521 (2004); 183 N.J. 262 (2005); 186 N.J. 468 (2006); 188 N.J. 341 (2006).

There is no argument on this appeal directed to any legal ruling of the trial judge regarding the charge based on the evidence presented or any contention the charge was wrong, and we found none on the direct appeal. There was an insufficient showing to warrant an evidentiary hearing on the claim of ineffective assistance of counsel, and we affirm the denial of PCR substantially for the reasons expressed by Judge Barbara Stolte in her oral opinion of February 9, 2007, as supplemented herein.

 
Affirmed.

Dr. Franklin testified that he believed defendant "consciously disregarded a substantial and unjustifiable risk that death would result to another by his conduct."

The record on this appeal, as presented in defendant's appendix, embodies a copy of the indictment, the judgment of conviction, our opinion on the direct appeal, the order denying certification, the petition for PCR, the order denying PCR, and the notice of appeal from the denial of PCR. The PCR petition includes only a procedural history and general claim of "ineffective assistance of counsel." The State's appendix contains its letter brief to the PCR judge. In his PCR argument counsel for defendant refers to his PCR brief, but the record before us contains no such brief or any certification containing facts in support of the petition.

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A-5530-07T4

June 19, 2009