STATE OF NEW JERSEY v. MICHAEL EITEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3825-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL EITEL,

Defendant-Appellant.

___________________________________

January 16, 2013

Submitted January 8, 2013 - Decided

Before Judges Reisner and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1705.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Eitel appeals from an order of the Law

Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On May 17, 2007, a Camden County grand jury issued an eleven-count indictment against Eitel for, among other things, first-degree kidnapping, first-degree carjacking, and second-degree endangering the welfare of a child. The charges in the indictment were based upon two incidents that allegedly occurred in September and November 2006, in which the putative victims were Eitel's former paramour and her child.

On the day scheduled for trial, Eitel pled guilty to a single count of second-degree possession of a weapon a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), even though only a gun clip, and not a gun itself, was recovered during the police investigation.1 Pursuant to the plea arrangement, on January 30, 2009, Eitel was sentenced to a term of five years imprisonment with a three-year parole disqualifier pursuant to N.J.S.A. 2C:43-6(c). The ten remaining counts of the indictment were dismissed.

Eitel elected to forego a direct appeal, and instead, in May 2009, sought post-conviction relief in the Law Division. Proceeding pro se, Eitel initially sought only a review of his sentence pursuant to N.J.S.A. 2C:43-6.2 and stated, "I would like a reduce [sic] in sentence or sentence overturned."

After PCR counsel was assigned, the focus of Eitel's application turned to whether he suffered the ineffective assistance of counsel. Specifically, Eitel claimed that his prior attorney failed to adequately investigate the facts of the case, and neglected to interview three important witnesses, particularly missing the defense of whether he actually ever possessed a gun. Assigned PCR counsel also argued that Eitel should be allowed to withdraw his guilty plea because he was pressured into pleading guilty by a lawyer who told him that "his case was hopeless." Finally, PCR counsel claimed that Eitel was entitled to a review of his sentence because he was "a first-time Graves Act offender."

A hearing was conducted in July 2010, following which Judge Michele M. Fox rendered a lengthy oral decision on August 16, 2010. Judge Fox recounted the nature of the offenses outlined in the indictment and accurately recited the procedural history leading to the filing of Eitel's petition for post-conviction relief. The judge notably commented upon the lack of any certifications from either Eitel or the supposed important witnesses whose testimony would have assisted the defense. The only certification that Eitel submitted was from a purported expert, who opined that a fingerprint analysis of the gun clip found by the police might produce a "ten percent success rate" in recovering latent fingerprints. Eitel argued that because his trial attorney never had the gun clip examined for fingerprints, another possible defense, that he was not in possession of a firearm, was lost.

Judge Fox found that Eitel had not demonstrated that his attorney's assistance was not within the range of competence demanded of attorneys in criminal cases. Additionally, she found:

In light of the evidence against the defendant available at trial and a drastic reduction of the defendant's potential sentence exposure as a result of the defendant's negotiated plea agreement, the defendant cannot show a "reasonable probability that but for counsel's error defendant would not have pled guilty and would've insisted on going to trial." [State v.] DiFrisco, [] 137 N.J. [434,] 457 [(1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)].

In addition, the judge reviewed the plea allocution in detail and found that Eitel not only failed to provide competent evidence of his "colorable claim of innocence," but also did not "[meet] his burden" to withdraw his guilty plea. Eitel's other contentions were similarly rejected as lacking merit.

An order memorializing the Law Division's denial of post-conviction relief was entered on August 18, 2010. This appeal followed.

II.

On appeal, Eitel presents the following arguments for our consideration:

POINT I: MR. EITEL WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO INVESTIGATE AND PURSUE ALL AVAILABLE DEFENSES.

POINT II: MR. EITEL SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS PLEA OF GUILTY.

POINT III: CUMULATIVE ERRORS DENIED MR. EITEL THE RIGHT TO A FAIR TRIAL.

We reject these claims as wholly without merit, Rule 2:11-3(e)(2), and affirm substantially for the reasons expressed by Judge Fox. We add only the following brief comments.

The standard for determining whether 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, Eitel 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). Eitel 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 Eitel's naked conclusions about the nature of his prior representation satisfied either the performance or prejudice prong of the Strickland/Fritz paradigm.

Additionally, the PCR record did not demonstrate anything to suggest that Eitel's post-sentencing motion to withdraw his guilty plea was for the purpose of correcting "a manifest injustice." R. 3:21-1.

Affirmed.

1 During the plea allocution, Eitel testified under oath that on November 11, 2006, he was in possession of a B.B. gun for the purpose of attempting to commit aggravated assault against his former paramour.