STATE OF NEW JERSEY v. MARCUS CASSADY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0221-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS CASSADY,

Defendant-Appellant.

___________________________

November 19, 2012

Submitted September 27, 2012 - Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-03-0431 and 03-10-1842.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marcus Cassady appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial court properly concluded that the evidence was inadequate to sustain defendant's burden, we affirm.

Defendant's PCR petition encompassed separate convictions on two unrelated offenses. The first arose out of his possession of a stolen car. Defendant was sentenced, in accordance with a plea agreement, on one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7, to time served, two years probation, and ordered to pay restitution of $3301.69. The additional convictions arose out of a robbery of Cape Savings Bank in Atlantic City and subsequent attempt to steal a car at a local dealership. Defendant was found guilty by a jury of two counts of second-degree robbery, N.J.S.A. 2C:15-1a, and sentenced to consecutive terms of ten years, each with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant did not file a direct appeal of his conviction for receiving stolen property. On appeal of his robbery convictions, we reversed one of the convictions and remanded for resentencing on the other, with one member of the panel dissenting on the conviction. State v. Cassady, 396 N.J. Super. 392, 402 (App. Div. 2007), rev'd 198 N.J. 165, 174 (2009). The Supreme Court, with three justices dissenting, reinstated defendant's convictions and sentence. Cassady, supra, 198 N.J. at 184.

Defendant filed a petition for post-conviction relief based primarily on claims of ineffective assistance of counsel. The matter was heard by Judge Donio, who had presided over defendant's robbery trial and imposed sentence. After hearing argument, Judge Donio denied the petition on the record.

On this appeal defendant argues:

POINT I:

THE LOWER COURT ORDER MUST BE REVERSED

SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Was Ineffective

Since He Failed to Pursue a

Reasonable Trial Strategy.

B. Trial Counsel Was Ineffective

Since He Failed to Advise

Defendant that He Would be Subject

to Probation as Part of His Plea

Agreement on Ind. No. 03-10-1842.

C. Trial Counsel Was Ineffective

Since He Failed to Advise

Defendant of the Applicability

of NERA With Respect to Ind.

No. 04-03-0431 During Plea

Negotiations.

D. Trial Counsel Was Ineffective

Since He Deprived Defendant of the

Opportunity to Testify on His Own

Behalf.

POINT II:

THE LOWER COURT ORDER MUST BE REVERSED

IN LIGHT OF ADDITIONAL ERRORS.

POINT III:

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We review a claim of ineffective assistance of counsel under the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under this two-part test, a defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, 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 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed 2d, at 693, 698. Measuring defendant's claims against this standard, we find no error in the trial court's denial of the petition.

The gist of defendant's claim of ineffective assistance on the basis of trial strategy is that his counsel argued alternative theories to the jury and theories not ultimately charged by the court. Specifically, defendant contends that his counsel failed to pursue a reasonable trial strategy by arguing that defendant was not the man caught on videotape stealing money from the bank, but if the jury concluded otherwise, then defendant should only be convicted of theft and not robbery.

The judge found that trial counsel reasonably pursued an identification theory based on certain inconsistencies in the eyewitnesses' descriptions of defendant. As for trial counsel's argument that the court should have charged on the lesser-included offense of theft, Judge Donio noted that two judges of the Appellate Division and three Justices of the Supreme Court agreed with defense counsel in two published opinions. Accordingly, he concluded that petitioner could not "even come close" to demonstrating that his counsel's trial strategy had been objectively unreasonable in pursuing alternate theories or that, but for that strategy, the outcome of the trial would have been different.

We agree with Judge Donio that defendant failed to establish a prima facie case of either counsel's deficient performance or prejudice under Strickland. In order to demonstrate deficient performance, defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Moreover, in order to show prejudice, a defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial;" instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing Fritz, supra, 105 N.J. at 60), certif. denied, 169 N.J. 609 (2001). Defense counsel's pursuit of alternate theories on the facts presented at trial does not meet that test.

Defendant's claims of ineffective assistance based on his counsel's failure to advise him that he would be subject to probation as part of his plea agreement on the charge of receiving stolen property, and trial counsel's failure to advise him of the effect of NERA during plea negotiations on the robbery charges are flatly belied by court documents executed by defendant and the transcripts of these proceedings. Accordingly, defendant's arguments on these points do not merit discussion in a written opinion. R. 2:11-3(e)(2).

Defendant also contends that his counsel was ineffective for failing to advise defendant of his opportunity to testify on his own behalf. The judge found that this argument was not borne out by the record. Judge Donio inquired of defense counsel on the record on the day before the State rested as to whether he planned on calling any witnesses. Counsel responded that he did not know yet. The following day, at the close of the State's case, defense counsel advised that he would not call any witnesses. Shortly thereafter, the judge asked if defendant wanted the court to charge the jury on defendant's right not to testify. Defense counsel responded that he had not yet had a chance to review that issue with his client and asked to be allowed to "go over that with him." After consulting with his client off the record, counsel advised the court that his client did not want the charge. The judge then confirmed that with defendant on the record.

Reviewing those events from the perspective of having presided over the trial, Judge Donio found that it was obvious that trial counsel had consulted with defendant as to whether he would testify at trial. Defendant offers nothing beyond his bald assertion to the contrary. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Accordingly, we find no error in Judge Donio's rejection of this argument.

Defendant claims among other additional errors, the court's failure to charge the lesser included offense of theft and "bad jury instructions." These claims are procedurally barred. Defendant may not, in this PCR proceeding, relitigate a claim already decided on the merits, Rule 3:22-5, or assert a new claim that could have been raised on direct appeal, Rule 3:22-4(a). State v. McQuaid, 147 N.J. 464, 483-84 (1997). As defendant's claim on the trial court's failure to charge theft was finally determined by the Supreme Court and any other claim he had as to "bad jury instructions" could have been raised on direct appeal, we find these claims to be without merit.

Finally, we reject defendant's argument that Judge Donio should have held an evidentiary hearing on his petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. State v. Preciose, 129 N.J. 451, 462 (1992);

R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland. Preciose, supra,, at 462-63. As defendant did not establish a prima facie case for relief, no evidentiary hearing was required.

Affirmed.