A-0STATE OF NEW JERSEY v. KEVIN A. MATTHEWS

NOT FOR PUBLICATION WITHOUT THE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.

KEVIN A. MATTHEWS,

Defendant-Appellant.

____________________________________

September 4, 2015

Submitted April 14, 2015 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-11-1171.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. H. Abbasi, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Kevin Matthews, appeals from a March 8, 2013 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons expressed by Judge James W. Palmer, Jr. in his concise and clear written opinion of the same date.

On appeal, defendant challenges the denial of his PCR and his request for an evidentiary hearing, raising these arguments for our consideration

POINT I

THE PCR COURT ERRED IN DENYING MATTHEWS AN EVIDENTIARY HEARING EVEN THOUGH MATTHEWS PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

MATTHEWS INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL PETITION FOR POST-CONVICTION RELIEF.

Defendant s conviction arose from a March 30, 2008 traffic stop. New Jersey State Trooper Erin Micciula clocked defendant driving eighty-three miles per hour on the Garden State Parkway. Trooper Micciula and her partner, Trooper James Albett, initiated a traffic stop. Trooper Albett approached defendant s vehicle from the passenger's side. He observed on the passenger's side seat an unopened beer can, a sandwich bag, and an aluminum foil wrapper with bread crumbs. Trooper Albett asked defendant about the items on the seat, at which point defendant grabbed the sandwich bag and put it in his mouth. As defendant was bringing the bag to his mouth, Trooper Albett saw several wax packages, consistent with heroin packaging, in the sandwich bag.

Trooper Albett then proceeded to the driver s side door and asked defendant to exit the vehicle. Defendant refused, and Trooper Albett tried to pull him out of the car. Defendant then started his vehicle, put his foot on the gas, and drove away. Trooper Albett s hand became caught in the car's seatbelt bracket causing him to be spun into the Garden State Parkway s right lane.

The Troopers then got back into their car and pursued defendant s vehicle. During the pursuit, Trooper Albett observed defendant s vehicle drive along the shoulder, where he suspected defendant threw the heroin packages out the window. Defendant eventually pulled off to the side of the road and exited his car voluntarily to be arrested.

On November 20, 2008, defendant was indicted as follows: count one, second-degree eluding, N.J.S.A. 2C:29-2b; count two, second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); and count three, tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1). Following a jury trial, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b. The State successfully argued for an extended term sentence and defendant was sentenced to thirteen years in New Jersey State Prison, with a five-year period of parole ineligibility.

Defendant filed a notice of appeal on February 23, 2010, and on May 26, 2011, we affirmed defendant s conviction and sentence.1 A petition for certification to the New Jersey Supreme Court was denied on March 29, 2012.

In May 2012, defendant filed this PCR petition, contending his trial counsel was ineffective because he failed to: (1) timely and effectively discuss trial strategy with him, (2) conduct an investigation prior to trial, and (3) effectively represent him during sentencing.

New Jersey s PCR is analogous to the federal writ of habeas corpus. State v. Jones, 219 N.J. 298, 310 (2014). 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). 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).

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. The right of counsel includes the right of effective counsel. State v. Cottle, 194 N.J. 449, 466 (2008). To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy the two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) as adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing that trial counsel s performance was deficient and, but for the deficient performance, the result would have been different. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (1984).

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 only if the defendant has presented a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992).

A petitioner must "allege facts sufficient to demonstrate counsel s alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Jones, supra, 219 N.J. at 311-12 (quoting Cummings, supra, 321 N.J. Super. at 170). There is a strong presumption 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.

At the conclusion of the hearing on March 8, 2013, Judge Palmer rendered a written opinion denying defendant s petition. Judge Palmer found defendant's claim of ineffective assistance of counsel did not require an evidentiary hearing. The alleged failure to investigate was based on counsel not personally visiting the scene. Counsel had instead viewed the videotape of the incident, and this decision did not demonstrate substandard assistance of counsel. Judge Palmer rejected the claim that counsel was ineffective during sentencing and explained that counsel had argued at length for a lower sentence. Finally, Judge Palmer concluded defendant was not entitled to an evidentiary hearing because he failed to establish a prima facie case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 462.

We have considered defendant s contentions in light of the record and applicable legal principles. We affirm substantially for the reasons expressed by Judge Palmer in his well-reasoned March 8, 2013 written opinion. As for Point II of defendant's brief, we conclude it is without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 State v. Matthews, No. A-2930-09 (App. Div. May 26, 2011) (slip op. at 1).