STATE OF NEW JERSEY v. CHRISTIAN DELOACH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0891-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTIAN DELOACH,

Defendant-Appellant.

___________________________________________________________

April 18, 2012

Submitted December 14, 2011 - Decided

Before Judges Fuentes, Graves and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

02-03-0485.

Joseph E. Krakora, Public Defender, attorney

for appellant (Alan I. Smith, Designated

Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County

Prosecutor, attorney for respondent (Mary R.

Juliano, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant Christian Deloach appeals from an order dated May 24, 2010, denying his petition for post-conviction relief (PCR). We affirm.

After a twelve-day jury trial in June 2003, defendant was convicted on nineteen counts of a twenty-two count indictment. Defendant was sentenced to an aggregate prison term of sixty years with fifty-one years of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction and sentence. In an unpublished opinion,1 we affirmed all of defendant's convictions except for a single count of carjacking. Because defendant had been sentenced to a consecutive ten-year term with five years of parole ineligibility for carjacking, and defendant raised other sentencing arguments, we remanded for resentencing.

At the resentencing hearing, the court eliminated the carjacking sentence but imposed the same sentence on defendant's other convictions, resulting in a fifty-year term of imprisonment with a NERA parole ineligibility period of forty-two-and-one-half years. Defendant appealed claiming that his aggregate sentence was excessive, but we affirmed. State v. Deloach, No. A-5851-05 (App. Div. June 28, 2007). The Supreme Court denied defendant's petition for certification. State v. Deloach, 192 N.J. 595 (2007).

Counsel was assigned after defendant filed a pro se petition for PCR. Defendant filed an amended verified petition on November 5, 2009. In a supporting certification, defendant stated his trial attorney "often seemed half asleep and distracted, and he certainly did not want to be bothered by me asking him questions. We got a chance to talk during the recesses, and he could never explain to me exactly why he was doing things any particular way." Defendant also stated he turned down "a plea offer of 30 years" prior to trial because his attorney said his "sentence would not be more than 30 years even if [he] was convicted of all charges in the Indictment."

Defendant also presented a certification from his mother. She stated defendant's attorney "was more than just unprepared in dealing with the trial itself. He was often spaced out, very disorganized, sometimes his speech was slurred, and he could not always remember important things about the case."

On April 27, 2010, the court heard argument on defendant's petition. At the outset of the hearing, the court noted that defendant's attorney died "approximately a year" after the trial, which concluded in June 2003. During the hearing, PCR counsel acknowledged that the trial court explained defendant's "entire potential sentence" at a plea cutoff hearing on February 20, 2003.2 Nevertheless, PCR counsel argued that defendant turned down the plea offer because he did not receive "effective advice" from his attorney. Additionally, PCR counsel alleged that defendant's attorney was "asleep at the wheel" during the trial. In response, the State noted that during his sentencing hearing, defendant stated he never considered "a plea of guilty" because he knew he "didn't shoot four people." The prosecutor also argued that defendant's "after-the-fact post-hoc allegations" were an attempt "to make up a defense" because what defendant "advanced at trial simply didn't work."

In an oral decision on April 27, 2010, the PCR judge rejected defendant's claim that he was misinformed regarding his potential sentence. The judge explained his reasons for denying the remainder of defendant's claims in a written decision on May 24, 2010. An order denying PCR was entered on the same date.

On appeal, defendant presents the following arguments:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST BEING REPRESENTED BY TRIAL COUNSEL WHOSE SUBSTANCE ADDICTION WAS SO DEBILITATING, OR "FOR WHATEVER REASON," THAT COUNSEL FOR THE CO-DEFENDANT FELT COMPELLED TO COMPLAIN TO THE TRIAL COURT, AND WHICH RESULTED IN A VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHTS TO A REASONABLE PRETRIAL INVESTIGATION AND A REASONABLE CROSS-EXAMINATION OF THE STATE'S WITNESSES, AND HIS DUE PROCESS RIGHT NOT TO HAVE HIS CREDIBILITY IMPEACHED BY AN INVOLUNTARY AND UNTRUSTWORTHY INCULPATORY ORAL STATEMENT.

POINT II

SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

POINT III

THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO VISIT THE SCENE OF THE SHOOTING AND FOR FAILING TO LOCATE POTENTIAL WITNESSES.

B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RETAIN AN EXPERT IN BALLISTICS.

Based on our review of the record and the applicable law, we conclude that these arguments are clearly without merit. R. 2:11-3(e)(2). We add only the following comments.

To prevail on a claim of ineffective assistance of counsel, defendant must satisfy the Strickland/Fritz test.3 Under this two-part test, defendant must first establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

To establish a prima facie claim in support of PCR, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). It is not enough to simply allege that some injustice may have occurred. Rather, defendant must allege and articulate specific facts, "which, if believed, would provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

In this case, after carefully considering defendant's PCR claims, the court found that defendant failed to show that his attorney "was ineffective and that any deficient performance prejudiced him." Those determinations are amply supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999). We therefore affirm the order denying defendant's petition substantially for the reasons stated by Judge Richard W. English on April 27, 2010 and May 24, 2010.

Affirmed.

1 State v. Deloach, No. A-2301-03 (App. Div. Feb. 7, 2006), certif. denied, 186 N.J. 603 (2006).

2 During the plea cutoff hearing, the judge informed defendant that he could be sentenced to "393 years in State Prison" with 320 years of parole ineligibility, if he was "convicted of everything."

3 Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).