STATE OF NEW JERSEY v. KENNETH DAMON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4935-06T44935-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH DAMON,

Defendant-Appellant.

_________________________________________

 

Submitted September 10, 2008 - Decided

Before Judges Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-08-2449 and 00-09-2796.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kenneth Damon appeals from the denial of his petition for post-conviction relief (PCR), challenging his convictions and sentences after two jury trials. We affirm.

Camden County Indictment No. 2449-08-00

In 2001, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree being a person not permitted to have a weapon, N.J.S.A. 2C:39-7. After the conviction for possession of a weapon for an unlawful purpose was merged into the robbery conviction, the judge imposed an extended fifty-year term with a NERA period of parole ineligibility on the robbery; a concurrent five-year term on the conviction for unlawful possession of a weapon; and a consecutive ten-year term for being a person not allowed to have a handgun. We affirmed the conviction and sentence on direct appeal. State v. Damon, No. A-3742-02T4 (App. Div. April 5, 2004). The Supreme Court summarily reversed the sentence and remanded in light of State v. Meekins, 180 N.J. 321 (2004). State v. Damon, 181 N.J. 283 (2004). On remand, the judge imposed the same aggregate term of sixty years with the period of parole ineligibility reduced to seventeen years.

Camden County Indictment No. 2796-09-00

In 2001, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree being a person not permitted to have a weapon, N.J.S.A. 2C:39-7. After the convictions for aggravated assault, possession of a weapon for an unlawful purpose, and unlawful possession of a handgun were merged into the conviction for first-degree robbery, the judge imposed an extended fifty-year term subject to a seventeen-year period of parole ineligibility on the robbery conviction and a consecutive ten-year term for being a person not permitted to have a weapon. This sentence was to run consecutively to the sentence defendant was serving. We affirmed the conviction and sentence. State v. Damon, No. A-3741-02T4 (App. Div. March 30, 2004), certif. denied, 180 N.J. 455 (2004).

Defendant then filed a PCR petition challenging both convictions. He alleged that the convictions should be reversed due to "trial counsel['s] failure to present evidence at trial and appellate counsel['s] failure to raise issues on direct appeal." Attorney David A. Snyder filed a brief on behalf of defendant. The judge denied an evidentiary hearing and the PCR petition.

Defendant appeals contending:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

We disagree. In fact, the following three contentions are barred by operation of Rules 3:22-4 or 3:22-5.

THE LOWER COURT ORDER MUST BE REVERSED SINCE

THE SENTENCE SHOULD HAVE BEEN REDUCED.

A. The Sentence Is Excessive and Illegal.

B. The Imposition Of Consecutive Sentences Is Illegal and Unjustly Harsh.

C. The Imposition Of Periods Of Parole Ineligibility, Extended Terms and Consecutive Sentences Violates Due Process and The Right To A Trial By Jury Because Aggravating Factors Were Not Found By A Jury.

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ITS CHARGE TO THE JURY.

THE LOWER COURT ORDER MUST BE REVERSED SINCE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE ROBBERY CONVICTION.

Defendant also contends:

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Failed To Request A Jury Charge On The Presumption Of Innocence.

B. Trial Counsel Failed To Object To Prosecutorial Misconduct.

C. Trial Counsel Failed To Cross-Examine In An Effective Manner.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BY REVERSED.

We disagree, concluding that the ineffective assistance of counsel claims at the trial, appellate and PCR levels must fail.

A charge of ineffective assistance of counsel must be evaluated in light of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987). Pursuant to Strickland, a defendant seeking to vacate a conviction on the grounds of ineffective assistance of counsel has the heavy burden of proving both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Deficient performance is a failure to exercise the skill and diligence of a reasonably competent attorney under a similar circumstance. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Counsel's conduct must be viewed, without hindsight, from his perspective at the time of trial. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Representation is constitutionally deficient only when it falls "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Prejudice is shown by proof creating "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.

Judicial scrutiny of counsel's performance must be highly deferential. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonably professional judgment. Ibid.

Here, with respect to the claims of ineffective assistance of trial counsel, we note that the alleged deficiencies can be analyzed on the basis of the trial record. Therefore, these three claims of trial counsel's deficiencies are barred by virtue of Rule 3:22-4, i.e., issues that could have been raised on direct appeal, but were not; or Rule 3:22-5 issues that were adjudicated on direct appeal.

Even if we were to ignore the procedural bar, it is clear that defendant has not made a prima facie showing of ineffective assistance. Our review of the record does not disclose any deficiency by trial counsel. Further, the evidence establishes that defendant committed the crimes of which he was convicted. Counsel's representation, no matter how effective, cannot alter the evidence and the inferences to be drawn therefrom. The same conclusion applies to appellate and PCR counsel. There is no showing of ineffective assistance.

We merely note that the remand from the Supreme Court was merely for the purpose of correcting the judgment to reflect the correct computation for the NERA disqualifier. The Court did not anticipate that the Law Division would exercise its sentencing function. Therefore, defendant's absence from the resentencing is not a judicial error warranting a reversal.

We also note that defendant is not entitled to a Natale remand. His sentence is not entitled to review based on pipeline retroactivity. Defendant also contends:

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

As stated above, when issues of defective performance of trial counsel are raised that involve disputed facts outside the record, the PCR judge must hold a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-461 (1992). However, here, the lack of merit of the ineffective assistance claims can be determined from a review of the trial record.

Defendant also contends:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

However, we conclude that there were no harmful errors warranting reversal.

 
The denial of the PCR petition is affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

The judgment of conviction indicates that the NERA parole disqualifier is 85 percent of the extended term. Thus, the NERA parole disqualifier was computed based on 85 percent of 50 years or 42 years, 5 months and 2 days.

State v. Natale, 184 N.J. 458 (2005) (Natale II).

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A-4935-06T4

March 4, 2009