STATE OF NEW JERSEY v. ANTONIO E. MCGEARY

NOT FOR PUBLICATION WITHOUT THE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.

ANTONIO E. MCGEARY,

Defendant-Appellant.

__________________________________

September 15, 2016

Submitted April 4, 2016 Decided

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-12-0960.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen Ann Lodeserto, Designated Counsel, on the brief).

Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Antonio E. McGeary, appeals from the January 27, 2014 order denying his petition for post-conviction relief (PCR). Defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and third-degree criminal restraint, N.J.S.A. 2C:13-2(a). He was sentenced to a term of ten years with parole ineligibility of eighty-five percent under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the robbery. He received a lesser concurrent sentence for the criminal restraint.

We affirmed defendant's convictions and sentence. State v. McGeary, No. A-5000-07T4 (App. Div. May 23, 2011). In May 2012, defendant filed a pro se PCR petition and was subsequently assigned counsel who filed a brief on his behalf. The petition alleged ineffective assistance of both trial and appeal counsel. Judge Paul Armstrong denied the petition and declined to conduct an evidentiary hearing. The judge issued a comprehensive, well-written decision and an order. This appeal followed. In his brief defendant argues

DEFENDANT'S POST-CONVICTION RELIEF COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL

We reject this argument and affirm.

Defendant, along with two others, went to a party with the intention of robbing the other guests of their "weed" and money. As they had planned, defendant and another member of the trio entered the party as guests. The third participant subsequently entered with a mask, an imitation gun, and handcuffs. Defendant asserted that he was supposed to lend assistance, if needed, and act as a look-out while maintaining his status as a guest. Although he admitted he knew his companion had the fake gun and handcuffs, defendant told the police that no one was to be hurt.

After being arrested, defendant confessed to being a participant in the robbery plan and performing his role; however, defendant stated that when his companion struck two of the victims with the gun and the victims began to bleed from the head, he "panicked" and fled from the scene. According to defendant's confession to the police, which was introduced into evidence at trial over trial counsel's objection, the victims had already been restrained, threatened with the weapon, struck in the head, and robbed by the time defendant left. Yet, defendant sought to minimize his involvement by his assertion that he did not expect any violence and left immediately after the victims were injured.

The trial court did not charge the jury on "renunciation" of the crime as a defense. Defendant did not testify at trial, and he claims he was coerced by trial counsel to waive his right to testify.

On direct appeal, defendant raised the following points

POINT I: FAILURE OF THE COURT TO PROPERLY CHARGE RENUNCIATION TO THE JURY DENIED THE DEFENDANT A FAIR TRIAL.

POINT II: THE COURT SUBMITTED AN IMPROPER CHARGE OF ACCOMPLICE LIABILITY TO THE JURY DENYING THE DEFENDANT A FAIR TRIAL.

POINT III: HEARSAY TESTIMONY IMPACTING DEFENDANT'S SIXTH AMENDMENT RIGHTS DENIED DEFENDANT A FAIR TRIAL.

POINT IV: THERE IS INSUFFICIENT EVIDENCE TO SUPPORT A VERDICT FOR CRIMINAL RESTRAINT. (NOT RAISED BELOW)

POINT V: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL'S PERFORMANCE WAS INADEQUATE AND SUBSTANTIALLY PREJUDICIAL TO THE DEFENDANT. LESSER INCLUDED OFFENSES WERE NOT SOUGHT BY DEFENSE COUNSEL. NO WADE HEARING WAS REQUESTED. FAILURE TO OBJECT TO OR PROTECT THE DEFENDANT FROM PREJUDICIAL/INADMISSIBLE TESTIMONY.

We reviewed and rejected all of these points except for the claim of ineffective assistance of counsel, which we left for future review if raised in a PCR petition. Appeal counsel did not raise the issue of trial counsel coercing defendant to waive his right to testify.

Defendant filed a pro se supplemental request for PCR and was assigned PCR counsel, who filed a brief on his behalf arguing that defendant was denied effective assistance of counsel by both his trial counsel and his appeal counsel. Specifically, PCR counsel argued that trial counsel was ineffective in failing to request a renunciation charge, failing to request a charge on a lesser included offense of theft, failing to request a Wade hearing, and failing to object to certain testimony of State's witnesses. Also, PCR counsel specifically argued trial counsel was ineffective by coercing defendant not to testify, and appeal counsel was ineffective for failing to raise this issue on appeal. At oral argument, PCR counsel did not present an argument and relied upon his brief.

Judge Armstrong, in a comprehensive and thoughtfully written opinion with which we agree, rejected all the arguments raised in the application for relief.

Now, on appeal of the denial of his PCR petition, defendant raises the argument that his PCR counsel was ineffective because he failed to support the arguments raised in the petition with an affidavit stating that defendant was coerced into not testifying and that PCR counsel generally failed to provide support for the arguments raised on defendant's behalf.

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel [makes] errors so serious that counsel [is] not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the New Jersey Constitution, a criminal defendant is entitled to "reasonably competent counsel." State v.Fritz, 105 N.J. 42, 58 (1987). Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. In order to rebut this presumption, a defendant must prove that counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. New Jersey has adopted the Strickland test. Fritz, supra, 105 N.J. at 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). The defendant bears the burden of proving, by a preponderance of the evidence, that counsel's decisions were not within the broad spectrum of competent legal representation. State v. Gaitan, 209 N.J. 339, 350 (2012). cert. denied, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

Because we are urged to reverse due to ineffective assistance of PCR counsel, we review the legal standards relevant to PCR counsel. Our state constitution affords defendants the "right to counsel when raising ineffective assistance of trial counsel for the first time, whether raised on direct appeal or by way of PCR." State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013). "[T]here can be no question that a defendant is entitled to effective and competent assistance of counsel when" counsel is appointed for a PCR petitioner. State v. McIlhenny, 333 N.J. Super. 85, 87 (App. Div. 2000). In addition to the constitutional right to counsel, "Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010). The rule provides

Counsel should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference. Pro se briefs can also be submitted.

[R. 3:22-6(d).]

In State v. Webster, 187 N.J. 254, 257 (2006), the Court held that PCR counsel must investigate claims urged by a client and "should advance all of the legitimate arguments that the record will support". See also State v. Rue, 175 N.J. 1, 18 (2002) (recognizing "the critical nature of faithful and robust representation of a defendant at a PCR proceeding").

The record reveals that PCR counsel complied with his obligations in presenting the matter to the PCR court. Although he did not engage in oral argument, he raised and presented in writing, in a logical and coherent manner, all available arguments on behalf of defendant.

From our review of the record, we conclude there was not a reasonable probability that the result of the application would have been different if defendant had provided an affidavit. We note we still have no affidavit from defendant. We do have his statement in which he acknowledged his participation in the planning and execution of the robbery. Any affidavit provided would have been in direct conflict with his representation at the trial that he voluntarily waived his right to testify.

Defendant was faced with overwhelming evidence of his guilt based on the testimony of eye witnesses and his own confession.

The PCR judge would have had to find defendant's affidavit, if one had been submitted, alleging he was coerced into not testifying at trial, was more than just a bald assertion made in order to obtain an evidentiary hearing. Defendant presents no corroboration of his assertion on this appeal. All the circumstances militate against defendant's assertion of coercion.

We therefore conclude that defendant has not shown that his PCR counsel was ineffective, just as he failed to show that his trial or appeal counsel was ineffective.

Affirmed.