STATE OF NEW JERSEY v. MARK TOMPKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3503-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK TOMPKINS,

Defendant-Appellant.

__________________________________

March 4, 2011

Submitted January 24, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-03-0893.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor,attorney forrespondent(Barbara A. Rosenkrans, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

This is an appeal from the trial court's denial of post-conviction relief ("PCR") to defendant, Mark Tompkins.

After a jury trial in 2004, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b. He was sentenced to an extended custodial term of fifteen years, with a period of seven-and-a-half years of parole ineligibility. In an unpublished opinion on direct appeal, see State v. Tompkins, No. A-5006-04 (Dec. 8, 2006), we upheld defendant's conviction but remanded for resentencing in light of the Supreme Court's intervening opinion in State v. Pierce, 188 N.J. 155, 163 (2006). On remand, the trial court reimposed the same sentence. In the meantime, the Supreme Court denied certification. State v. Tompkins, 189 N.J. 649 (2007). Defendant then filed a PCR petition, which the trial court denied after considering the parties' written submissions and oral argument.

We incorporate by reference the factual chronology described in our opinion on direct appeal. Briefly stated, defendant was pulled over by a Newark police officer who had observed him making an illegal turn with his gray Pontiac near an entrance ramp to Route 78. Defendant stopped temporarily, but, as the officer got out of his squad car, he then drove away, at speeds estimated to be as high as eighty miles per hour. The officer gave chase, and then came upon defendant's Pontiac, which had just struck another vehicle head-on. As the officer arrived at the accident scene, defendant ran off through an open lot. He was apprehended nearby in a stairwell leading to the cellar of an abandoned building. The officer issued several motor vehicle summonses to defendant, and he was thereafter indicted on the eluding charge.

Before trial, defendant moved to preclude references by the State or its witnesses to the motor vehicle summonses. The trial court granted the motion to bar such references unless and until the summonses were produced. The record reflects that the summonses were, in fact, produced by the State to defendant's trial attorney before the arresting officer testified at trial and referred to the summonses.

Defense counsel argued to the jury that the arresting officer had fabricated his assertion about seeing defendant make an illegal turn. He argued that, in actuality, there was no vehicular chase and that the officer first encountered defendant at the scene of the collision. The jury evidently disbelieved defendant's theory and found him guilty.

In seeking a reversal of the PCR ruling, defendant's present counsel argues:

POINT I

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL DEPRIVED TOMPKINS OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

A. Tompkins Was Deprived of His Constitutional Right To Effective Assistance of Counsel Under the United States Constitution and the New Jersey Constitution.

B. Trial Counsel Failed to Object to the Testimony Concerning the Alleged Motor Vehicle Summonses Issued to Tompkins.

C. Trial Counsel Failed to Represent Tompkins Effectively During the Trial.

POINT II

TOMPKINS WAS DENIED EFFECTIVE TRIAL, APPELLATE AND PCR COUNSEL BECAUSE THEY ALL FAILED TO INVESTIGATE AND CHALLENGE THE EXISTENCE AND LEGALITY OF THE MOTOR VEHICLE SUMMONSES. (NOT RAISED BELOW).

POINT III

APPELLATE COUNSEL WAS INEFFECTIVE BECAUSE COUNSEL FAILED TO RAISE THE ISSUE RELATED TO TRIAL COUNSEL'S FAILURE TO OBJECT TO THE STATE'S INTRODUCTION OF THE MOTOR VEHICLE SUMMONSES EVEN THOUGH THE TRIAL COURT RULED THAT IT WOULD PRECLUDE TESTIMONY CONCERNING THE SUMMONSES IF OBJECTED TO BY TOMPKINS' TRIAL COUNSEL.

POINT IV.

CUMULATIVE ERRORS DENIED TOMPKINS HIS RIGHT TO A FAIR TRIAL.

POINT V

THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY TOMPKINS.

Additionally, defendant makes the following argument in a pro se supplemental brief:

SUPPLEMENTAL POINT I

THE CRIMINAL CO[N]VICTION OF N.J.S.[A.] 2C:29-2b IS CONSTITUTIONALLY DEFECTIVE BASED ON THE STATES OWN ADMITTANCE, IN VIOLATION OF THE UNITED STATES CONSTITUTION 4TH, 6TH AND 14TH AMENDMENT, NEW JERSEY STATE CONSTITUTION, ART 1, PARA 10 AND N.J.S.A. 2C:29-2b; AS A MATTER OF LAW THE CONVICTION AND SENTENCE MUST BE VACATED.

We have fully considered these points, and the State's opposition. Having done so, we affirm the dismissal of the PCR petition, substantially for the reasons expressed in Judge Martin Cronin's oral opinion of October 20, 2008. Little else needs to be said, except we offer the following comments by way of amplification.

The crux of defendant's PCR application and this appeal is based upon his assertion that he did not receive the effective assistance of his former attorneys, first at the trial level and then on direct appeal. In reviewing such claims of ineffectiveness, courts apply a strong presumption that prior defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489, cert. den., 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Echols, 199 N.J. 344, 357-59 (2009). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006).

"As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). "'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).

We concur with Judge Cronin that, applying these well-established legal standards here, defendant's prior counsel were not ineffective, and, moreover, that defendant was not prejudiced at trial or on direct appeal because of counsel's alleged errors.

Trial counsel's failure to object to the admission of the traffic summonses was consistent with the provisional nature of the trial court's in limine ruling. Once the summonses were produced by the State, they could be used as part of the State's proofs. Moreover, even if, as defendant posits, the summonses were defective, his trial attorney was not obligated to cross-examine the arresting officer about those claimed defects and instead permissibly saved his criticisms tactically for closing argument. In his summation, trial counsel urged the jury to treat the summonses as part of the officer's alleged efforts at fabrication. Trial counsel also reminded the jury that there had been no summons issued to defendant for speeding, thereby supporting his theme that the officer's narrative of the police chase was concocted. We discern no constitutional deprivation in counsel's chosen methods of dealing with these matters, which were all within the realm of reasonable trial strategy and tactics.

We are also satisfied that defendant failed to demonstrate ineffective assistance and ensuing prejudice in any other respect, including the quality of trial counsel's investigation, the lack of a photograph of the accident scene, the non-appearance of the other driver involved in the collision, and the claim that counsel on direct appeal omitted certain arguments that might have been made. Nor did defendant present a prima facie case warranting a plenary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451, 459 (1992).

Defendant's remaining arguments, including those raised in his supplemental brief, lack sufficient merit to be discussed in this opinion. R. 2:11-3(e)(2).

Affirmed.