STATE OF NEW JERSEY v. SHAWN FAUNTLEROY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1933-03T41933-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN FAUNTLEROY,

Defendant-Appellant.

_______________________________

 

Submitted October 3, 2005 - Decided

Before Judges A. A. Rodr guez and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 93-02-0410-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor, attorney for respondent (Jeanne Tordella Covert, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal by defendant from an order entered by Judge Irvin J. Snyder in Camden County denying, after an evidentiary hearing, defendant's motion for post-conviction relief (PCR), R. 3:22-1 to -12.

Defendant was tried in Camden County on a charge of possessing a firearm without a permit, N.J.S.A. 2C:39-5b. He was found guilty by the jury on that charge and then pled guilty to a variety of other charges that had been set forth in five other pending indictments, with the counts to which he had not pled to be dismissed pursuant to his plea bargain.

On the charges to which he pled guilty, and the weapons charge on which he had been convicted, defendant faced an aggregate exposure of forty-one and a half years imprisonment, twenty-two and a half years subject to parole ineligibility. Judge Louis Hornstine sentenced defendant in December 1995 to an aggregate twenty-six year custodial term, thirteen years to be served without eligibility for parole.

After extensively reciting the procedural history, we affirmed defendant's convictions and sentences in an unpublished opinion, State v. Fauntleroy No. A-5883-95T4 (App. Div. June 15, 1998) (slip op. at 7), and the Supreme Court denied his petition for certification. State v. Fauntleroy, 156 N.J. 426 (1998). In our opinion, however, we left open to be raised in a PCR proceeding defendant's ineffective assistance of counsel claims.

Defendant's PCR motion was filed pro se in October 1999, and it was denied on December 8, 2000. On appeal, we reversed and remanded. We directed that an evidentiary hearing be held because we concluded that the decision by PCR counsel to permit the hearing to proceed on the papers prejudiced defendant's "interest in the disposition of the PCR consistent with the dictates of due process." State v. Fauntleroy, No. A-5019-00T4 (App. Div. Nov. 27, 2002) (slip op. at 10).

Thereafter, defendant filed a second PCR motion, which after a hearing was denied by Judge Snyder in an order dated September 12, 2003, which in turn has led to the present appeal.

In this PCR appeal, defendant contends:

POINT I: THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF. (Not Raised Below)

We have carefully considered, in light of the record and the applicable law, each of defendant's contentions on appeal. Because we are satisfied that neither of those contentions is of sufficient merit to warrant discussion in a written opinion, we affirm. R. 2:11-3(e)(2). We add the following, however.

Briefly, the parameters of PCR appeals include the following, and

[t]he right to counsel implies, of course, the right to adequate legal representation. Inadequate representation, as defined by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), includes two elements: substandard professional assistance and ultimate prejudice to the defendant by reason thereof. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

[Pressler, Current N.J. Court Rules, comment on R. 3:4-2 (2006)].

The essential principles pertaining to PCR relief comment on R. 3:4-2 thus are firmly established. As we noted in State v. Russo, 333 N.J. Super. 119, 137-38 (App. Div. 2000),

Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus. State v. Afanador, 151 N.J. 41, 47 (1997); State v. Preciose, 129 N.J. 451, 459 (1992); State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must establish the right to such relief by a preponderance of the credible evidence, Preciose, supra, 129 N.J. at 459; State v. Mitchell, 126 N.J. 565, 579 (1992). Ineffective assistance of counsel claims are particularly suited for post-conviction review because they involve allegations and evidence that lie outside the trial record and, therefore, often cannot reasonably be raised in a prior proceeding. Preciose, supra, 129 N.J. at 460.

In Russo, we further explained that the function of evidentiary hearings in PCR proceedings is a significant one (id. at 138):

Ordinarily, a post-conviction relief court should grant an evidentiary hearing to a defendant who has presented a prima facie case in support of his application. [State v. Marshall, 148 N.J 89, 158, cert. denied, 522 U.S 850, 118 S. Ct 140, 139 L. Ed 2d 88 (1997)]; Preciose, supra, 129 N.J. at 462. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits. Marshall, supra, 148 N.J. at 158; Preciose, supra, 129 N.J. at 463. Moreover, in determining whether to grant an evidentiary hearing, the post-conviction-relief court must consider the facts in the light most favorable to defendant to determine whether a defendant has established a prima facie claim. Marshall, supra, 148 N.J. at 89, Preciose, supra, 129 N.J. at 462-63; State v. Garcia, 320 N.J. Super. 332, 338 (App. Div. 1999). If there are disputed issues as to material facts regarding entitlement to post-conviction-relief, a hearing should be conducted. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Here, the PCR hearing we directed to take place has occurred and, with respect to defendant's claim of ineffective assistance of trial counsel, we conclude that Judge Snyder correctly determined that defendant failed to demonstrate that he was denied such assistance. We are satisfied that there was a substantial basis in the record for the trial court's finding that defendant lacked credibility at the hearing and, in view of his long sentence, that he was "try[ing] to spin the story for [his] . . . benefit," and that "does affect his credibility."

The trial judge having resolved issues of credibility against defendant, and these being determinations to which we are obliged to defer, State v. Locurto, 157 N.J. 463, 470-71 (1999), we have no basis for intervening, particularly inasmuch as defendant's claims rely heavily on his thus-discredited assertions.

With respect to defendant's assertion that he was denied the effective assistance of PCR counsel, we note that the State urges that we require that defendant make a choice as to which court he seeks to have review this issue, and objects to an attempt by defendant, if he were to make such an attempt, to have two opportunities for review on this point.

This course of action is unnecessary because there are no contested issues of fact that would require resolution by our resort to extra-record materials. Instead, we are able to decide these allegations based on the PCR record. Essentially, they are that PCR counsel was ineffective due to an alleged failure to ask enough questions or establish sufficient facts at the PCR hearing to enable defendant to prevail.

These claims lack merit, as we have stated, and indeed the record establishes the contrary of defendant's allegations. Among other things, we take into account the court's careful review with defendant during the plea proceeding of circumstances pertaining to the plea, such as the court's statement, "so that it's crystal clear, these are open pleas . . ., there have been no agreements and no promises given to you on any of these matters. Do you understand?" Defendant's response to this inquiry was unequivocal, "Yes, your Honor."

Our Supreme Court has noted the existence of a presumption of reasonableness that is accorded to counsel's action, for as it stated in State v. Norman, 151 N.J. 5, 37-38 (1997),

"Judicial scrutiny of counsel's performance must be highly deferential," and must avoid viewing the performance under the "distorting effects of hindsight." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; see State v. Buonadonna, 122 N.J. 22, 42 (1991). Thus, we recently recognized that "because of the inherent difficulty in evaluating defense counsel's performance solely on the basis of the circumstances existing at the time of trial, the Strickland Court admonished courts to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" State v. Marshall, 148 N.J. 89, 157 (1997) (Marshall III) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Here, PCR counsel manifestly met his obligation to "give his best efforts to his client's cause." State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). Simply put, defendant has met neither of the Strickland/Fritz prongs, because the record plainly shows that he has not met his burden of demonstrating that PCR counsel's representation was defective, and even if he had done so, that such shortcomings affected the result of his PCR application.

Affirmed.

 

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A-1933-03T4

October 28, 2005