STATE OF NEW JERSEY v. EDWIN MCSWAIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3603-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN MCSWAIN,

Defendant-Appellant.

_________________________________

November 9, 2010

Submitted: October 27, 2010 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-10-1452.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor,of counsel; RobertaDiBiase, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Edwin McSwain appeals from the October 21, 2008 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. He alleged ineffective assistance of trial counsel, including that counsel failed to investigate defendant's innocence and pressured him into accepting a guilty plea, and ineffective assistance of appellate counsel in failing to raise any issues other than excessive sentencing. We affirm.

Defendant was indicted on the first-degree offenses of murder (count one), N.J.S.A. 2C:11-3a, and armed robbery (count two), 2C:15-1a(1),(3), for which he was death-penalty eligible. Pursuant to the negotiated plea agreement, on June 27, 2003, defendant pled guilty to both counts, and on September 23, 2003, he was sentenced to a life term with a thirty-year period of parole ineligibility on count one and a concurrent twenty-year term on count two. Indictments charging defendant with unrelated crimes were also dismissed as part of the plea agreement.

Defendant filed an appeal, solely challenging his sentence as excessive in light of his mental, social and emotional impairments, which we denied on an abbreviated (ESOA) calendar. State v. McSwain, No. A-1752-03T4 (App. Div. March 9, 2006). The Supreme Court denied defendant's petition for certification. State v. McSwain, 188 N.J. 218 (2006).

This PCR petition ensued and was denied by Judge Den Uyl on October l5, 2008, following oral argument with defendant present. In a pro se submission and that of PCR counsel, defendant claimed ineffective assistance of trial and appellate counsel and a variety of generalized errors by the court that he claimed prejudiced his rights. More specifically, defendant claimed trial counsel failed to adequately investigate his innocence and the existence of other possible suspects, or evaluate his alibi, and appellate counsel failed to raise all trial errors on appeal. Defendant also claimed trial counsel failed to ensure defendant made a knowing, intelligent and voluntary plea in light of his psychological impairments and the trial court erred in accepting his plea which did not have an adequate factual basis as defendant had only repeated the answers trial counsel had prepared for him and was not knowing, intelligent and voluntary due to his cognitive limitations.

The court addressed and rejected each of defendant's arguments. The court found, for the most part, defendant only made "bald assertions" of ineffective assistance that were not supported by competent evidence and he failed to present a prima facie showing of ineffectiveness of trial or appellate counsel as required by State v. Preciose, 129 N.J. 451, 462-63 (1992), so as to warrant an evidentiary hearing. The court pointed out that "[b]y [] defendant's own account, trial counsel took steps to investigate any claims of defendant's innocence, any potential suspects, and any evidence tending to mitigate his exposure to capital punishment." Moreover, defendant presented no facts to show what trial counsel should have uncovered or presented regarding witnesses or an alibi. Most critically, as to all of the allegations of ineffectiveness of trial counsel, defendant failed to show that, but for the failure to investigate, defendant would have foregone a guilty plea and proceeded to trial.

Judge Den Uyl responded to defendant's claim of psychological impairments and ineffective assistance by noting trial counsel investigated defendant's state of mind by having him examined by two psychologists prior to his entering a guilty plea. However, neither expert opined that defendant's psychological condition prevented him from entering a knowing and intelligent guilty plea. Nor did defendant's voluminous PCR submissions contain competent evidence that defendant was incompetent to stand trial or to have entered an intelligent guilty plea in 2003.

With regard to defendant's challenge to his guilty plea, the court found the record demonstrated "defendant did not answer yes to every question, but intelligently responded to each question that was asked." Moreover, defendant could have maintained his innocence when he was being questioned by his counsel and the court, which would have prevented the plea from going forward. The court additionally found defendant offered no evidence to support his claim of lack of understanding of the length and parole bar of his sentence, noting defendant's signature on the plea form and his acknowledgment of the specific consequences of his plea at sentencing.

In regard to the assertion that appellate counsel should have raised issues other than an excessive sentence, the court stated that an appellate counsel "need not raise every colorable claim suggested by a client. In fact, winnowing out weaker arguments is the hallmark of effective appellate advocacy." The court's denial of defendant's PCR petition was memorialized in an order of October 21, 2008. This appeal ensued.

On appeal, defendant renews the arguments made to the PCR judge as to ineffective assistance of trial and appellate counsel and error by the trial court in accepting his plea. We are not persuaded by defendant's arguments and affirm substantially for the reasons articulated by Judge Den Uyl.

In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Allah, 170 N.J. 269, 283 (2002). Our evaluation is governed by the test that the United States Supreme Court established:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Our Supreme Court subsequently adopted the Strickland standard in interpreting the right to the effective assistance of counsel under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 52-58 (1987). In order to claim ineffective assistance of counsel, a defendant must establish that counsel's performance was "so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction[.]" Id. at 58.

Under the first prong, when we evaluate the reasonableness of counsel's alleged conduct, we must apply an objective standard. Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We judge counsel's conduct on the facts of the particular case, viewed at the time of the challenged conduct. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Ibid. In our analysis, we acknowledge the strong presumption that counsel made all significant decisions in the exercise of his or her reasonable professional judgment. Ibid.

In order to establish the second prong of prejudice, a defendant must do more than show that the error or errors had some conceivable effect on the outcome of his proceeding. See State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). "An error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696.

We recognize that a claim of ineffective assistance of counsel based on facts outside the record must ordinarily be tested by way of an evidentiary hearing. Preciose, supra, 129 N.J. at 462; (1992); State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div. 2002). Nevertheless, it is also clear that in order to qualify for an evidentiary hearing, a defendant must present a prima facie case of remediable ineffectiveness. State v. Marshall, 148 N.J. 89, 158 (1997); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We are satisfied from our review of the record that defendant has failed to make a prima facie showing of ineffectiveness of trial counsel within either prong of the Strickland/Fritz test. Hence an evidentiary hearing was not warranted. Defendant presented coherent responses to the court and counsel during his plea colloquy. He was sentenced in accordance with the plea that he acknowledged he read, understood, and had reviewed with his attorney. The record is devoid of any evidence that defendant's psychological condition or the medication he took interfered with his cognitive abilities when he entered the plea or at the time of sentencing when he declined to further address the court.

We apply the same Strickland/Fritz analysis to a claim of ineffective assistance of appellate counsel. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Since none of the issues regarding trial counsel's performance are sufficient to demonstrate legal error that may have affected the outcome of defendant's trial, it necessarily follows appellate counsel was not ineffective for failing to raise them. State v. Echols, 199 N.J. 344, 361, 365 (2009).