STATE OF NEW JERSEY v. JESSE JAMES PINCKNEY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

JESSE JAMES PINCKNEY,

Defendant-Appellant.

________________________________

May 8, 2014

Submitted: April 30, 2014 Decided:

Before Judges Fasciale and Haas.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-06-717.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jesse James Pinckney appeals from the April 26, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

On June 24, 2004, a jury convicted defendant of second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. On January 14, 2005, Judge Lorraine Pullen merged the endangering the welfare of a child conviction into the sexual assault conviction and sentenced defendant to a ten-year term of imprisonment, subject to an eighty-five percent period 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 In an unpublished opinion, we affirmed the conviction, but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Pinckney, No. A-3426-04 (App. Div. January 24, 2007) (slip op. at 3). Our Supreme Court denied certification. State v. J.J.P., 190 N.J. 394 (2007). On remand, a different judge also sentenced defendant to a ten-year term, subject to NERA. Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed defendant's sentence.

Defendant then filed a petition for PCR, contending that trial counsel rendered ineffective assistance by failing to (1) investigate the credibility of a witness; (2) make a motion for a new trial; (3) move to preclude the testimony of the State's expert witness; and (4) request a "false in one, false in all" jury charge. Defendant also argued that the "cumulative effect" of these "alleged trial and counsel errors . . . manifestly prejudiced" him.

In a thorough written opinion, Judge Pullen considered each of these contentions and denied defendant's petition. The judge concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. After fully explaining her reasons for rejecting each of defendant's contentions, Judge Pullen stated:

At the time of trial, [defendant's] counsel was an experience[d] trial attorney and had previously tried many serious cases. Hindsight is said to be twenty/twenty and it is no different in this case. A review of the trial transcript reveals that [defendant's] counsel had a plan/strategy prior to the commencement of trial that he felt would best get the result of a not guilty verdict and followed that plan as best he could with the facts he had to work with. Viewing [defendant's] contentions in a light most favorable to [defendant], there has been no showing from [defendant] either in his written brief, during oral argument or in the trial transcripts that convinces this Court that [defendant] has [met] the two-pronged test established in [Strickland, supra], requiring an evidentiary hearing . . . to be held.

Defendant now appeals from the denial of his petition and raises the following argument:

POINT ONE

THE PCR COURT COMMITTED ERROR BY NOT GRANTING THE DEFENDANT AN EVIDENTIARY HEARING.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "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). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Pullen in her well-reasoned written opinion.

Affirmed.