STATE OF NEW JERSEY v. ELEANOR BROWN-BILAL

NOT FOR PUBLICATION WITHOUT THE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.

ELEANOR BROWN-BILAL, a/k/a

BETTY BRITT, BETTY E. BELAL-BROWN,

BETTY E. BILAL-BROWN, BETTY E. BILAL,

SUSAN W. BRITT, BETTY BROWN,

BETTY E. BROWN, JACQUELINE

BROWN, CYNTHIA HALLOWAY,

SUSAN WALODE,

Defendant-Appellant.

_______________________________________________

July 28, 2016

Before Judges St. John and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-02-0156.

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

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (MarcA. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eleanor Brown-Bilal appeals the Law Division's denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. Having reviewed the record in light of applicable law, we affirm.

I.

The record discloses the following facts and procedural history. In August 2009, defendant went to a senior and disabled housing building in Paterson to visit her friend, W.P. While there, defendant saw Domingo Calo, pushed him inside his apartment, and attempted to take his money. During the struggle, defendant grabbed the chain around Calo's neck and choked him.

A Passaic County grand jury returned Indictment No. 10-02-0156, charging defendant with second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1) (count one); first-degree robbery, in violation of N.J.S.A. 2C:15-1 (count two); third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2) (count three); fourth-degree criminal trespass, in violation of N.J.S.A. 2C:18-3a (count four); and second-degree burglary, in violation of N.J.S.A. 2C:18-2 (count five).

On June 14, 2010, pursuant to a negotiated plea agreement, defendant pled guilty to first-degree robbery, in exchange for the prosecutor's recommendation to dismiss the remaining counts and a sentence of seventeen years' imprisonment subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Before sentencing, defendant moved to withdraw her guilty plea, alleging she was innocent, and her attorney did not thoroughly investigate by failing to interview W.P., the friend she was intending to visit on the date of the alleged crime. After a hearing, the court denied her motion. On November 12, 2010, defendant was sentenced to fifteen years' imprisonment subject to the requirements of NERA on count two, and the remaining counts were dismissed. Appropriate fines and penalties were imposed.

On October 19, 2011, we heard defendant's appeal pursuant to an Excessive Sentencing Oral Argument (ESOA) calendar and affirmed her sentence. Her petition for certification was denied by the Supreme Court. State v. Brown-Bilal, 210 N.J. 109 (2012).

In January 2013, defendant filed a pro se petition for PCR, and thereafter a counseled petition, including a certification. In her petition, defendant contended that her trial counsel was ineffective for failing to investigate her case by not interviewing W.P., pressuring her into taking a guilty plea, and failing to present relevant mitigating evidence during sentencing. She also alleged that appellate counsel was ineffective for failing to adequately appeal the denial of her motion to withdraw her plea.

On March 21, 2014, the PCR judge heard oral argument on defendant's petition and denied relief finding the petition to be without merit. He determined "there's no colorable claim of innocence. There was a plea bargain which, as I recall kept the defendant from being exposed to a greater penalty." Further, "[the trial court] took note . . . that [defendant's plea colloquy] didn't appear to be the language of anyone who was being strong armed into taking a guilty plea by defense counsel." The judge concluded

I don't see that there's anything set forth that meets begins to meet the standard for . . . an evidentiary hearing to be held . . . . The fact that . . . she had a legitimate reason for appearing at the building has nothing to do with what she chose to do when she arrived at the building. So, the [W.P.] issue does not compute.

It is from that decision that defendant appeals.

II.

On appeal, defendant presents the following issue for our consideration

POINT ONE

MS. BROWN-BILAL IS ENTITLED TO AN EVIDENTIARY HEARING ON HER CLAIMS THAT HER TRIAL AND APPELLATE ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

We are satisfied from our review of the record that these contentions are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). However, we add the following comments.

Defendant argues her claim of ineffective assistance of counsel was improperly denied without an evidentiary hearing. We disagree. Rule 3:22-10(b) states, "[a] defendant shall be entitled to an evidentiary hearing only upon establishment of a prima facie case in support of post-conviction relief." "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington and United States v. Cronic, which [the Court] adopted in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Preciose, 129 N.J. 451, 463 (1992) (citations omitted).

Under the Strickland standard, a petitioner must show counsel's performance was both deficient and prejudicial. State v. Martini, 160 N.J. 248, 264 (1999). The performance of counsel is "deficient" if it falls "below an objective standard of reasonableness" measured by "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984). Counsel's performance is "prejudicial" only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As with a summary judgment motion, a PCR court deciding whether to grant an evidentiary hearing "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Preciose, supra, 129 N.J. at 462-63.

Defendant again contends that she was coerced into pleading guilty and that her trial counsel's failure to interview W.P. amounted to ineffective assistance of counsel. As the PCR judge concluded, these arguments lack merit and do not satisfy the standard for an evidentiary hearing. Even if W.P. confirmed defendant's story that she intended to visit him on the night of the robbery, it does not conflict with or contradict the State's proofs that she robbed the victim on her way there. Further, the record does not support defendant's claim that she was pressured to plead guilty. This contention is belied by the fact that when asked by the trial judge if "anybody in any way, shape or form threatened you to get you to plead?" defendant answered, under oath, "No."

For those reasons, we agree with the PCR court that defendant failed to present a prima facie case of ineffective assistance of counsel. Defendant's bald assertion of ineffective assistance is clearly not sufficient and an evidentiary hearing would not have aided the PCR court's analysis of defendant's entitlement to PCR. R. 3:22-10(e)(1). Therefore, the PCR judge did not err in denying defendant an evidentiary hearing with respect to her ineffective assistance claim.

Affirmed.