STATE OF NEW JERSEY v. FRANCIS THOMSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4779-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS THOMSON,

Defendant-Appellant.

_________________________________

April 5, 2011

Submitted March 9, 2011 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-06-1321.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jill G. Kail, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Francis Thomson appeals from the December 1, 2008 order denying his petition for post-conviction relief (PCR). We affirm.

At approximately 4:00 a.m. on August 24, 2001, defendant, then a juvenile, stabbed an unarmed gas station attendant multiple times, severing his jugular vein, cutting the arch of his aorta, and slicing through one of his lungs. The victim died as a result of his wounds. Defendant was charged with juvenile delinquency for acts which, if committed by an adult, would constitute murder, N.J.S.A. 2C:11-3, and other offenses.

Following the denial of his motion to suppress his statements to the police, defendant entered a conditional guilty plea to an amended charge of aggravated manslaughter, reserving his right to challenge the denial of his motion to suppress. The judge imposed a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole supervision following release.

Defendant appealed his conviction and sentence. We affirmed defendant's sentence but remanded for a determination of whether defendant had stated during the interview that he wanted to go home. State v. Thomson, No. A-1404-03 (App. Div. Dec. 27, 2004) (slip op. at 17-19). The trial judge subsequently found that neither defendant nor his mother, who was present during the interview, ever asked to leave. Defendant appealed, and we affirmed. State v. Thomson, No. A-0133-06 (App. Div. Dec. 10, 2007) (slip op. at 13), certif. denied, 195 N.J. 422 (2008).

Defendant subsequently filed a PCR petition grounded, in part, on ineffective assistance of trial, appellate and PCR counsel. Defendant argued that trial counsel failed to (1) provide him with discovery indicating that the victim died as a result of the failure of emergency medical service (EMS) personnel to treat him; (2) properly prepare for the Miranda1 hearing or provide discovery to or discuss it with defendant; and (3) conduct a full and complete pretrial investigation. Defendant also argued that appellate and PCR counsel were ineffective for failing to raise trial counsel's deficiencies.

Judge Donald Venezia denied the petition without a hearing, concluding defendant failed to establish a prima case of ineffective assistance of trial or appellate counsel. The judge found that the record "clearly indicates that trial counsel reviewed the entire file with . . . defendant" and "there's not one iota of circumstance that would dictate . . . that [trial counsel] was ineffective at all." The judge also found that even if counsel's performance was deficient, "it wouldn't change anything in this case one iota because the guilt of this defendant is overwhelming based on the evidence." This appeal followed.

On appeal, defendant raises the following arguments:

I. THE ORDER DENYING DEFENDANT'S MOTION FOR [PCR] MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PLEA COUNSEL, APPELLATE COUNSEL AND [PCR] COUNSEL

A. Defendant received the ineffective assistance of plea [c]ounsel when plea counsel failed to request that the court order a new pre- sentence report that would contain important information about the defendant's background or to correct the Judge's misperception of the plea agreement at sentencing. Defendant again received the ineffective assistance of appellate counsel and PCR counsel when both counsel failed to raise the issue of the Court's erroneous belief that the negotiated sentence called for imposition of a 20 year sentence and when PCR counsel failed to identify and argue that plea counsel was ineffective at the sentencing proceedings.

II. THE PCR COURT ERRED IN NOT ANALYZING ALL OF THE ARGUMENTS ADVANCED BY THE DEFENDANT. THE COURT CONCLUDED WITHOUT ANY EVIDENCE BEFORE IT THAT DEFENDANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL. THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.

We decline to address defendant's contentions in Point I.A., raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); R. 2:5-4. Further, these contentions should have been raised on direct appeal, and they are without merit considering we previously affirmed defendant's sentence. State v. Afandor, 151 N.J. 41, 50 (1997); R. 3:22-4 and -5; see also Thomson, supra, No. A-1403-03, slip op. at 18.

Defendant argues in Point II that Judge Venezia erred in denying his petition because trial counsel was ineffective in failing to provide him with discovery, properly prepare for the Miranda hearing, and investigate the conduct of EMS personnel who allegedly contributed to the victim's death by failing to treat him. We disagree.

Claims of ineffective assistance of counsel are well suited for post-conviction review. State v. Preciose, 129 N.J. 451, 460 (1992); see also R. 3:22-4(a)(2). The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that 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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

Adequate assistance of counsel must be measured by a standard of "'reasonable competence.'" Fritz, supra, 105 N.J. at 53 (citation omitted); see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Our review of the record satisfies us that defendant has not established either prong of the Strickland/Fritz test. The record reveals that trial counsel reviewed defendant's statements with him before the Miranda hearing, and the two discussed possible defenses and reviewed the autopsy report, which showed that the victim died from multiple stab wounds. Further, defendant produced no expert evidence establishing that the EMS personnel's alleged failure to treat the victim was an "independent intervening cause" of the victim's death that would lessen defendant's criminal liability. See State v. Pelham, 176 N.J. 448, 454, cert. denied, 540 U.S. 909 124 S. Ct. 284, 157 L. Ed. 2d 198 (2003).

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).