STATE OF NEW JERSEY v. ROLAND SIMEON

NOT FOR PUBLICATION WITHOUT THE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.

ROLAND SIMEON,

Defendant-Appellant.

___________________________________

April 15, 2014

Submitted April 7, 2014 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-03-00429.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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

I.

On October 12, 2007, after a jury trial, Simeon, together with a co-defendant, was convicted of second-degree conspiracy and two counts of second-degree robbery arising from separate incidents on the same date in which two victims were attacked and robbed.1 After merger, Simeon was sentenced to an aggregate term of fourteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On direct appeal, we affirmed Simeon's conviction and sentence.2 State v. Simeon, No. A-6014-06 (App. Div. Oct. 21, 2010). The Supreme Court denied certification. State v. Simeon, 205 N.J. 518 (2011).

On October 4, 2011, Simeon filed a pro se application for PCR. After PCR counsel was appointed, Simeon's grievances focused upon trial counsel's (1) failure to immediately move for a mistrial due to tainted identification testimony by the victims and (2) failure to effectively argue for mitigating factors at sentencing.

On June 7, 2012, the Law Division conducted a hearing on Simeon's claims. In an oral decision delivered that day, the PCR judge concluded that his canvass of the record revealed that immediately after the challenged identifications were made, Simeon's trial attorney brought his concerns to the attention of the trial judge. Furthermore, the attorney succeeded in having the identifications stricken from the record and a curative instruction provided to the jury, all of which we affirmed on appeal. See Simeon, supra, slip op. at 20. The circumstance that a mistrial motion was deferred for several days was found by the PCR judge to be inconsequential. Furthermore, the PCR judge noted, and we agree, that Simeon's trial counsel effectively cross-examined the victims with respect to their identifications, and the timing of the mistrial motion would not have affected the jury's verdict.

The PCR judge further commented that trial counsel's summation with respect to the identifications was adequate, and that Simeon "has not proven by a preponderance of the evidence that a different or perhaps lengthier discussion of the tainted identification issue to the jury during summation would have created any different result." Finally, the PCR judge noted that trial counsel's argument during sentencing did include mitigating factors, and "there is nothing in the petition that indicates which specific mitigating factors, now five years later, the petitioner believes should have been presented with more specificity by the then trial counsel for him at that time." An order denying PCR relief was issued on June 7, 2012. This appeal followed.

II.

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

POINT I: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

We have deliberated upon all of these arguments in light of the record, and we conclude that they are entirely unpersuasive.

Generally, PCR is a "'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). A petition for PCR essentially acts as a defendant's final opportunity to contest the "fairness and reliability of a criminal verdict in our state system." Ibid. (quoting State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). Ultimately, if a mistake created an injustice in the preceding trial or sentencing, a PCR hearing provides a final opportunity to redress such an error. State v. Hess, 207 N.J. 123, 144-45 (2011).

A defendant must establish by a preponderance of credible evidence that he is entitled to the relief requested. Nash, supra, 212 N.J. at 541. "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).

In order to obtain relief for suffering the ineffective assistance of trial counsel, a defendant must allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, 216 N.J. 577, 579 (2014). A defendant "must show both (1) that counsel s performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.

To satisfy the first factor, Simeon is required to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Generally, a reviewing court proceeds from the "strong presumption that counsel's performance falls within the 'the wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305, 323 (1986) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Therefore, Simeon "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. 1999).

Regarding the second Strickland/Fritz factor, Simeon must demonstrate that there was a reasonable probability that the proceeding's outcome would have been different but for his counsel's conduct. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Here, "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In this context, it is insufficient for Simeon to demonstrate that his counsel's errors "had some conceivable effect on the outcome of the proceeding [since] [v]irtually every act or omission of counsel would meet that test." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 866-67, 102 S. Ct. 3440, 3446-47, 73 L. Ed. 2d 1193, 1201-03 (1982)).

On appeal, the standard of review of a denial of a PCR petition is whether the PCR court's findings are supported by sufficient credible evidence. State v. State v. Nu ez-Vald z, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we engage in "highly deferential" scrutiny of counsel with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted). However, we give no deference to and are not bound by the PCR court's legal conclusions, which are reviewed de novo. Nash, supra, 212 N.J. at 540. Additionally, if the Law Division did not conduct an evidentiary hearing, we may exercise de novo review over the factual inferences the PCR court has drawn from the record. State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010) (citing State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)), certif. denied, 206 N.J.64 (2011).

Simeon argues that trial counsel was deficient in the timeliness of the mistrial motion, the effectiveness of cross-examination of the victims' identifications, the delivery of the summation, and the arguments provided during sentencing. We have reviewed the record, and conclude that Simeon has failed to satisfy either the performance or prejudice prong of the Strickland/Fritz paradigm. Whether Simeon suffered ineffective assistance of counsel is not measured by the adverse jury verdict or severe sentence; rather, it is determined from an objective assessment of whether "'[t]he error committed [was] so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)). We detect no such erosion here.

1 The co-defendant was convicted of conspiracy and only one count of robbery.

2 We also affirmed the conviction of the co-defendant, but on the State's cross-appeal from the imposition of a third-degree, three-year NERA term, we vacated the co-defendant's sentence and remanded for resentencing.