STATE OF NEW JERSEY v. SHAWN TERRELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5827-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN TERRELL,

Defendant-Appellant.

_________________________________________________

December 7, 2010

Submitted October 26, 2010 - Decided

Before Judges Payne and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

01-11-04606.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent

(LeeAnn Cunningham, Assistant Prosecutor,

on the brief).

PER CURIAM

Defendant, Shawn Terrell, appeals from the denial of his petition for post-conviction relief (PCR), without an evidentiary hearing. He argues:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT TRIAL BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO COMPREHENSIVELY AND THOROUGHLY INVESTIGATE A POTENTIAL ALIBI DEFENSE.

We affirm.

The record offers evidence that, on June 16, 2000, defendant shot Ronald Parrish in the back, at the urging of Kayo Broadus, as part of a drug/gang dispute. Parrish survived and identified defendant and Broadus as suspects. Broadus was then arrested and implicated defendant as the shooter. Following a trial, defendant was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, in part on the basis of Broadus's testimony, given under a grant of use immunity. Because he had a prior Graves Act conviction, defendant was subject to a mandatory extended term, and a sentence of fifty years in custody with a twenty-five-year period of parole ineligibility was imposed. We affirmed defendant's conviction and sentence, State v. Terrell, No. A-6176-02 (App. Div. May 18, 2005), and certification was denied by the Supreme Court. State v. Terrell, 184 N.J. 212 (2005).

In a PCR petition, filed on May 23, 2006, PCR counsel argued that trial counsel was ineffective in failing to investigate background information that would have established an alibi defense that defendant was in Virginia at the time of the shooting, in failing to present applicable mitigating factors at sentencing and to argue against certain aggravating factors, and in failing to investigate the claim that the victim was a rival drug dealer and to argue to the jury that the victim had a motive to falsely identify defendant as his shooter. PCR was denied in a written opinion following oral argument, without an evidentiary hearing. The judge found that both defendant and his counsel had attempted to obtain a receipt from the hotel where defendant allegedly lodged at the time of the shooting, but they were unable to do so because the hotel changed hands. In this regard, the judge quoted testimony by defendant at his sentencing hearing, in which he stated:

[W]hen he spoke of the Virginia, the alibi, at that time I'm I was in Virginia visiting my daughter. . . . [W]hat I was attempting to retrieve from Virginia would be the hotel receipt, unfortunately, the hotel became under new management. I myself, as well as my lawyer . . . tried to contact the clerk at the desk, because . . . she knew me, not on a personal basis, but . . . on a visual basis where she knows who I am, because I'm from out of town for one, and I always frequented . . . that hotel whenever I come into town to visit my daughter. She could not find the . . . hotel receipts, because the hotel came under new management or whatever . . . .

With respect to sentencing, the judge noted that counsel had urged leniency, and that defendant's family members had spoken at length on his behalf, but that the judge's sentencing discretion was severely restricted by applicable statutes. The potential mistaken identification issue raised by defendant was not specifically addressed.

On appeal, defendant argues only that counsel was ineffective in not more thoroughly investigating his potential alibi defense and in not issuing a subpoena to compel the attendance at trial of a Virginia hotel's desk clerk named Kerry, who could have testified that defendant frequented the hotel. We reject this argument. Whether defendant frequented the hotel is not the issue, which was, instead, whether he was there on the day in question. Defendant has offered nothing to suggest that evidence of that fact was available. In the absence of an affidavit or other supporting evidence, we conclude that defendant has failed to establish a prima facie claim of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App Div.) (holding that "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."), certif. denied, 162 N.J. 199 (1999).

In order for defendant to have prevailed on his petition for PCR premised upon inadequate assistance of trial counsel, he must have made the two-part showing set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), namely, that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and that counsel's deficient performance prejudiced the defense. Defendant has not offered such evidence, and as a consequence, we conclude that his petition for PCR was properly denied.