STATE OF NEW JERSEY v. WILLIAM ECKBOLD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5069-03T45069-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM ECKBOLD,

Defendant-Appellant.

____________________________

 

Submitted October 18, 2005 - Decided February 7, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, 95-02-00202-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Shepard Kays, Designated Counsel,

on the brief).

Ronald J. Casella, Cumberland County Prosecutor,

attorney for respondent (Matthew M. Bingham,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury, defendant appeals from the denial of his petition for post-conviction relief (PCR). He was convicted of second-degree aggravated arson, N.J.S.A. 2C:17-1(a) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); third-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of murder, (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) as a lesser-included offense of attempted murder, (count four); and second-degree possession of weapon (explosives) for an unlawful purpose, N.J.S.A. 2C:39-4(b) (count five). After merger of offenses, defendant was sentenced to life imprisonment with thirty years to be served without parole for felony murder and a consecutive seven-year term for the aggravated assault. On direct appeal of his conviction and sentence, defendant makes the following arguments:

POINT I - THE CUMULATIVE EFFECT OF TRIAL COUNSEL'S ERRORS PREJUDICED THE DEFENDANT, THEREBY CONSTITUTING INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL'S EXCESSIVE STIPULATIONS AS TO ELEMENTS REQUIRED TO BE PROVEN BY THE STATE REPRESENTED UNSOUND TRIAL STRATEGY, THEREBY RESULTING IN PREJUDICE TO THE DEFENDANT.

B. TRIAL COUNSEL'S FAILURE TO PURSUE A MIRANDA HEARING IN AN EFFORT TO SUPPRESS CERTAIN STATEMENTS ALLEGED TO HAVE BEEN MADE BY THE DEFENDANT CONSTITUTED UNSOUND TRIAL STRATEGY TO THE DETRIMENT OF THE DEFENDANT.

C. TRIAL COUNSEL'S FAILURE TO RAISE AN INTOXICATION DEFENSE AND TO REQUEST THE DELIVERY OF AN INTOXICATION INSTRUCTION TO THE JURY CONSTITUTED DEFICIENT PERFORMANCE WHICH PREJUDICED THE DEFENDANT.

D. TRIAL COUNSEL'S FAILURE TO REGISTER APPROPRIATE OBJECTIONS AND HIS DEFICIENCIES AS A WHOLE, MATERIALLY CONTRIBUTED TO DEFENDANT'S CONVICTION.

POINT II - THE CUMULATIVE EFFECT OF PROSECUTORIAL IMPROPRIETIES, IN THE FORM OF IMPROPER REMARK, SUBSTANTIALLY PREJUDICED AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT III - THE TRIAL COURT IMPROPERLY IMPOSED CONSECUTIVE TERMS IN SENTENCING DEFENDANT.

We affirmed on March 6, 1998. Defendant later filed a pro se PCR petition on March 10, 2000, in which he made non-specific allegations of ineffective assistance of counsel. After assignment of PCR counsel, an amended petition set forth the following arguments:

POINT I - THE DEFENDANT'S SIXTH AMENDMENT RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO CONTEST MANY STIPULATIONS AT TRIAL.

B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE MADE NO EFFORT TO HAVE A MIRANDA HEARING.

C. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO REQUEST AN INTOXICATION DEFENSE AND BECAUSE HE FAILED TO REQUEST AN INTOXICATION JURY INSTRUCTION.

D. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO OBJECT TO MANY INFLAMMATORY COMMENTS MADE BY THE PROSECUTOR.

POINT II - THE DEFENDANT IS ENTITLED TO A HEARING TO ESTABLISH HIS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III - THE DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE HE DID NOT MAKE AN INTELLIGENT WAIVER OF MIRANDA RIGHTS, BECAUSE THE POLICE DID NOT ADEQUATELY INFORM HIM OF THE NATURE OF THE CHARGES THAT HE WAS BEING INVESTIGATED FOR.

POINT IV - DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE HIS STATEMENT WAS MADE AFTER HE INVOKED HIS RIGHT TO COUNSEL.

Judge John M. Waters held that defendant's petition was barred by R. 3:22-4 and R. 3:22-5 because the arguments set forth had either been asserted on direct appeal or could have been raised at that time. On appeal from this determination defendant makes the following argument:

POINT I - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AS THE DEFENDANT DID NOT RECEIVE THE ASSISTANCE OF COUNSEL ON POST-CONVICTION RELIEF AS SET FORTH IN STATE V. VELEZ, 329 N.J. SUPER. 128 (APP. DIV. 2000).

After consideration of the arguments presented and applicable portions of the record, we conclude that defendant's argument is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

To successfully argue that trial counsel did not provide the level of assistance required under the Sixth Amendment, a defendant must show that counsel's performance was not only inadequate but also prejudiced his defense so that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). As to claims of ineffective assistance of PCR counsel, we have stated that,

We think a different rule should be applied in a case such as the one before us, where the defendant's post-conviction relief attorney entirely failed to subject the prosecution's case to meaningful adversarial testing. See United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984). Where, as here, the attorney's representation of the defendant amounts to no representation at all, the post-conviction relief process should begin anew with the appointment of an attorney willing and able to serve as an advocate for his client.

[State v. Velez, 329 N.J. Super. 128, 135 (App. Div. 2000).]

See also State v. Clark, 260 N.J. Super. 559 (App. Div. 1992); State v. King, 117 N.J. Super. 109 (App. Div. 1971). Our review of the record in this case indicates that PCR counsel reviewed the prosecutor's case and adequately represented defendant. We also note that on this appeal defendant fails to state any specific claim of ineffective assistance of counsel in addition to those arguments raised by counsel at the PCR hearing.

 
Affirmed.

(continued)

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A-5069-03T4

February 7, 2006