STATE OF NEW JERSEY v. JOHN TUCKER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6213-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN TUCKER,

Defendant-Appellant.

_________________________________

December 17, 2013

Submitted December 9, 2013 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-06-1155.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John Tucker appeals from the January 26, 2012 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Tried to a jury in 2004, Tucker was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-(4); and fourth-degree child abuse, N.J.S.A. 9:6-1 and -3 (two counts). After merger, the trial court sentenced Tucker to an aggregate term of nine years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed the convictions, but remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Tucker (Tucker I), No. A-4588-04 (App. Div. Oct. 16, 2006) (slip op. at 9). The Supreme Court denied certification. State v. Tucker, 189 N.J. 428 (2007).

The remand produced the same sentence, which we affirmed on an Excessive Sentence Oral Argument (ESOA) calendar pursuant to Rule 2:9-11. State v. Tucker (Tucker II), No. A-2471-07 (App. Div. Sept. 23, 2009). The Supreme Court again denied certification. State v. Tucker, 201 N.J. 156 (2010).

The present application for PCR was filed pro se on January
 
14, 2010.1 After PCR counsel2 was assigned, a formal brief was submitted to the Law Division, together with a certification signed by Tucker. Among other things, Tucker argued that he suffered the ineffective assistance of counsel through several putative errors and omissions committed by trial counsel. Additionally, Tucker contended that appellate and initial PCR counsel were ineffective. Finally, Tucker asserted that his trial was irretrievably tainted when the trial judge failed to properly address allegedly inflammatory comments made by Tucker's sister when she was testifying.

The PCR judge conducted oral argument on January 26, 2012. A nine-page written opinion denying relief was issued on January 30, 2012. A memorializing order was entered that same day. This appeal followed.

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

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S ADVICE CONVINCING HIM NOT TO TESTIFY.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO BRING TO THE ATTENTION OF THE TRIAL COURT TWO JURORS WHO MAY HAVE BEEN SLEEPING, AND TO REQUEST A HEARNG BE CONDUCTED TO ADDRESS THIS SITUATION.

D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO SEEK THE APPROPRIATE RELIEF FOLLOWING A DISPARAGING AND EXTREMELY PREJUDICIAL REMARK MADE BY THE DEFENDANT'S SISTER IN THE PRESENCE OF THE JURY.

E. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL WHEN COUNSEL DID NOT PROVIDE HIM WITH APPROPRIATE CLOTHING FOR TRIAL, THEREBY NECESSITATING A SUBSEQUENT REQUEST THAT THE TRIAL COURT INSTRUCT THE JURY THE DEFENDANT WAS INCARCERATED.

F. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN SEVERAL DIFFERENT RESPECTS, HE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THOSE CONTENTIONS.

POINT II: THE TRIAL COURT ERRED IN REJECTING CERTAIN ASPECTS OF THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.

A. THE DEFENDANT'S CONTENTION REGARDING HIS FAILURE TO TESTIFY.

B. THE DEFENDANT'S CONTENTION REGARDING TRIAL COUNSEL'S FAILURE TO SEEK APPROPRIATE RELIEF REGARDING POTENTIALLY SLEEPING JURORS.

C. THE DEFENDANT'S CONTENTTION REGARDING TRIAL COUNSEL'S FAILURE TO SEEK APPROPRIATE REMEDIAL RELIEF REGARDING THE DEFENDANT'S APPEARANCE AT TRIAL.

POINT III: THE TRIAL COURT ERRED IN DENYING THAT ASPECT OF THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF REFERENCING THE PREJUDICIAL AND HIGHLY INFLAMMATORY REMARK MADE BY THE DEFENDANT'S SISTER ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

Based on our examination of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.

We begin with basic concepts:

The legal principles that govern our analysis of a defendant's claim that he was deprived of the effective assistance of counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.[3] See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).

[State v. Quixal, 431 N.J. Super. 502, 507 (App. Div. 2013).]

Trial courts should ordinarily grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim and the facts supporting the claim are outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, a defendant must show a reasonable likelihood of succeeding under the Strickland/Fritz test. Id. at 463. 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. Marshall, 148 N.J. 89, 158 ("The purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief."), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

A defendant must establish by a preponderance of credible evidence that he is entitled to the relief requested. State v. Nash, 212 N.J. 518, 541 (2013). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

The PCR court carefully reviewed all of Tucker's grievances, finding that they were either procedurally barred or without substantive merit. Many of Tucker's urgings were merely re-packaged arguments that had already been addressed on direct
 
 
 
appeal.4 The PCR court rejected Tucker's claim that trial counsel overrode Tucker's will on the decision whether to testify because there was no credible evidence that Tucker's testimony could have obtained a more favorable result.5 Additionally, the PCR court was unpersuaded that Tucker's subjective fashion sense,6 and the trial court's explanation to the jury as to why he was so attired, had any capacity to influence the verdict. We agree.

Like the PCR court, we are convinced that all of the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland/Fritz test. The Sixth Amendment does not require "an attorney to be 'effective' in terms of crafting a defense when none actually exists." State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000).

1 An earlier PCR application, filed pro se on July 24, 2007, was dismissed without prejudice after PCR counsel was assigned, possibly because Tucker's ESOA appeal was pending.

2

This PCR counsel was a different attorney than that assigned in 2007.

3 This two-part analysis is commonly known as the Strickland/Fritz test.

4 For example, Tucker claims to have been aggrieved by trial counsel's failure to aggressively pursue either a mistrial or other corrective action after Tucker's sister improperly remarked, as a blackboard was being wheeled into place to assist her testimony, "Could you turn this this way because I really don't want to look at him?" We inferred from the record that because the trial judge did not hear the comment, "the jury was similarly unable to hear what the witness said." Tucker I, supra, slip op. at 8. There is nothing in the PCR record
suggesting that, even if one or more jurors heard the remark, the result would have been altered.

5
Although Tucker was convicted of serious crimes and is serving a significant sentence, the jury acquitted him of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) and one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). Tucker I, supra, slip op. at 2.

6
Tucker complained that trial counsel failed to provide him with "decent looking clothing for the trial." By Tucker's aesthetic, "the mismatched ill-fitting clothing made [him] look like a clown."