STATE OF NEW JERSEY v. RODNEY WILLIFORD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2552-06T42552-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY WILLIFORD,

Defendant-Appellant.

__________________________

 

Submitted September 15, 2008 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-08-2441.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Roseann A. Finn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Rodney Williford, appeals the Law Division's October 2, 2006 order denying him post-conviction relief (PCR). We affirm.

On September 17, 1999, defendant was convicted by a jury of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He had also been charged with first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1. The jury was unable to agree as to this count, and, at sentencing, the trial court granted the State's motion to dismiss the charge.

Defendant was sentenced on October 22, 1999, to a twenty-year extended term of imprisonment, subject to a ten-year period of parole ineligibility, on the second-degree aggravated assault, consecutive to a sentence that defendant was already serving on an aggravated manslaughter conviction. The remaining convictions were merged into the second-degree aggravated assault. In an unreported per curiam opinion, we affirmed the conviction and sentence. State v. Rodney Williford, No. A-2033-99 (App. Div. September 27, 2001). Defendant's petition for certification was denied on January 10, 2002. State v. Williford, 171 N.J. 42 (2002).

On September 30, 2003, defendant filed a pro se petition for PCR asserting ineffective assistance of counsel. A letter brief, dated July 24, 2006, was subsequently filed by counsel in support of defendant's petition. Counsel contended that failure to obtain a psychiatric evaluation and school, hospital, and prison records, in support of the theory that defendant was incapable of forming the requisite criminal intent, constituted ineffective assistance of trial counsel. In addition, the brief asserted that trial counsel was derelict in failing to investigate the alleged traumatizing effect of ten years of incarceration on defendant.

At the September 29, 2006 oral argument on the PCR application, the court found that the issues should have been raised on direct appeal and were, therefore, procedurally barred. The PCR judge also concluded that defendant's claims did not rise to the level of ineffective assistance of counsel because they were mere "bald assertions" and nothing more. Because he determined that the application did not establish a prima facie case, the PCR judge denied the request for an evidentiary hearing.

On appeal, defendant raises the following points:

POINT I

RULE 3:22-4 DOES NOT BAR DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

POINT II

DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS, ENTITLING HIM TO A FULL EVIDENTIARY HEARING BELOW.

The charges against defendant arose from a February 21, 1997 incident at Riverfront State Prison, during which defendant stabbed Senior Corrections Officer Raymond Powers in the left chest area. As a result, Powers was treated for life-threatening injuries.

We do not agree with the PCR judge's conclusion that defendant's petition raised claims that should have been addressed on direct appeal. Defendant could not have asserted his attorney's failure to raise potential mental status defenses on direct appeal. The issue could only be raised via a claim of ineffective assistance of counsel, in contrast, for example, to a complaint about jury charges or the outcome of a motion, which would be fully developed in the trial record. Had defendant raised claims cognizable on direct appeal, he would now be procedurally barred from consideration by way of PCR. R. 3:22-4; State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000); State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

We do agree, however, with the PCR judge's second basis for denying the motion, that defendant's claims lacked substantive merit. To establish a deprivation of the right to the effective assistance of counsel under the Sixth Amendment, a defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). When reviewing ineffective assistance claims, we apply a strong presumption that defense 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.

In State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), we held that "bald assertions" are not a sufficient basis to establish ineffective assistance of counsel. A defendant must do more:

[He] must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[Ibid.]

In this case, no certifications or affidavits were submitted to substantiate defendant's position that if trial counsel had investigated his mental health history, information would have come to light establishing that he was incapable of forming the necessary intent. In the absence of any proof corroborating defendant's claims, nothing more than bald assertions have been made. Furthermore, as the PCR judge opined, without such proofs, no prima facie case was presented such as would warrant an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant has not established that his trial counsel's performance was deficient. Accordingly, we affirm.

Affirmed.

 

The Judgment of Conviction incorrectly states that defendant was convicted of fourth-degree possession of a weapon for an unlawful purpose.

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A-2552-06T4

November 5, 2008