STATE OF NEW JERSEY v. BASIYR POWELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BASIYR POWELL,

Defendant-Respondent.

________________________________

October 22, 2013

Submitted October 15, 2013 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-3571.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Basiyr Powell appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

A jury convicted Powell of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). After merger, Powell was sentenced to an aggregate seventeen-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The charges arose from an armed robbery of a convenience store in East Orange. The State proffered the testimony of the victim, a police officer, and two eyewitnesses regarding Powell's commission of the crimes. Powell elected not to testify, and he presented no witnesses on his behalf.

On direct appeal, we affirmed the judgment of conviction but remanded for reconsideration of the sentence in light of the then-current applicable considerations required by State v. Natale, 184 N.J. 458 (2005), and its progeny. State v. Powell, No. A-2145-04 (App. Div. Sept. 19, 2006). The Supreme Court denied further review. State v. Powell, 189 N.J. 641 (2007).

After the Law Division resentenced Powell "with the same sentence as previously ordered," we affirmed the sentence on an Excessive Sentencing Oral Argument calendar pursuant to Rule 2:9-11. State v. Powell, A-1923-07 (App. Div. February 4, 2009). The Supreme Court again denied certification. State v. Powell, 199 N.J. 541 (2009).

On March 22, 2011, Powell filed a petition for PCR, alleging that he was entitled to an evidentiary hearing in order to prove that he suffered the ineffective assistance of trial counsel. In support of his petition, Powell alleged generalized shortcomings of his attorney: "Trial counsel gave me misinformation and ill-advise [sic]. Counsel failed to file necessary motions, failed to argue all appropriate things at sentence, failed to consider all defenses and failed to investigate defenses that existed in the case. Counsel failed to educated [sic] himself and utilize an investigator on my behalf." The only specific grievances that Powell alleged were the following:

Prior to trial my lawyer only visited m[e] one time in the jail. This was the only real opportunity I had to speak with him about the case. I repeated, what I had told him several times before, about the witnesses['] drug problems. I told him specifically that [the eyewitnesses] had drug problems and that these drugs impaired their ability to testify truthfully. Counsel, however, refused to investigate these witnesses. Furthermore, I told him that [the victim] also had a drug addiction problem. Again, my attorney failed to look into this as well. I believe had this information been investigated that the witnesses['] credibility would have been impeached and the jury would not have rendered a guilty verdict.

The PCR judge, who was also the trial and remand judge, denied Powell's request for an evidentiary hearing, concluding that Powell had failed to demonstrate a prima facie case of ineffective assistance of counsel. The judge stated, "my perception, having presided over the trial . . . is that there . . . was overwhelming evidence [of Powell's guilt] in the trial of this matter." He further noted that "[t]he question is not whether or not these people used drugs. The question is whether or not on the night in question when the incident happened, were they under the influence of drugs." The PCR judge determined that "being a user of drugs isn't relevant unless they're under the influence when they're perceiving the events they testify about." Furthermore, "what an investigator would find at this point is pure speculation." Consequently, the judge denied relief and entered a memorializing order on July 14, 2011. This appeal followed.

II.

On appeal, Powell raises the following issues for our consideration:

POINT I: THE POST CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION ON THE ARGUMENT THAT HIS ATTORNEY FAILED TO INVESTIGATE THE DRUG USE OF STATE WITNESSES YOUNG, DOUGLAS AND DOCKERY.

A. DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE DRUG USE OF STATE WITNESSES YOUNG, DOUGLAS AND DOCKERY AND SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING.

Our review of the record convinces us that these contentions are not persuasive.

The standard for determining whether trial counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the framework set forth in Strickland. Under the first prong of Strickland, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

To prevail, Powell 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). Powell presents no facts to support even a prima facie contention of ineffective assistance of trial counsel. There was nothing presented in the Law Division to support a finding that Powell's naked conclusions about the nature of his prior representation satisfied either the performance or prejudice prong of the Strickland/Fritz paradigm.

At trial, Powell's attorney cross-examined witnesses about their observations at the time of the incident, and about their ability to observe. Counsel touched on the witnesses' possible substance abuse on the day in question, and the record is devoid of any evidence beyond Powell's self-serving musings to the contrary. We, like the PCR judge, also fail to see how hiring an investigator would have made a difference in the conduct of the defense. At their core, Powell's claims are "too vague, conclusory, or speculative" to warrant an evidentiary hearing, much less post-conviction relief. State v. Marshall, 148 N.J. 89, 158 (1997).