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DOCKET NO. A-5821-07T3







March 22, 2011


Submitted November 30, 2010 - Decided

Before Judges Carchman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.


Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Supervising Assistant Prosecutor, of counsel;

William Kyle Meighan, Assistant Prosecutor,

on the brief).


Defendant Donald Stilton appeals from an order dated September 11, 2008, denying his petition for post-conviction relief (PCR). We affirm.

A jury convicted defendant of fourth-degree theft by deception, N.J.S.A. 2C:20-4 (count one); and third-degree theft by deception, N.J.S.A. 2C:20-4 (count two). Both counts of the indictment charged defendant with theft by deception from a Wal-Mart store in Manahawkin, "by creating or reinforcing the false impression that merchandise presented for return refund had been purchased by the defendant when said merchandise had been taken from the store shelves by defendant to the return counter without being paid for." The jury found that defendant's conduct constituted "one pattern of behavior" and that he unlawfully obtained property from Wal-Mart in the total amount of $916.12. At sentencing on March 24, 2006, the court merged count one with count two and sentenced defendant to five years in prison.

On appeal, we affirmed defendant's judgment of conviction, State v. Stilton, No. A-4738-05 (App. Div. July 26, 2007), and the Supreme Court denied defendant's petition for certification. 192 N.J. 596 (2007). In our prior opinion, we stated that "the jury saw the videotape of defendant allegedly committing the theft crimes." We also noted that the jury "heard defendant's explanation of his actions" and "rejected defendant's explanation as incredible." We summarized the facts of the case as follows:

At 12:39 p.m. on January 3, 2005 defendant entered the Wal-Mart store in Manahawkin with a white box on top of a shopping cart. Defendant went directly to the automotive aisle where he took some items from the shelves and placed them in his cart beneath the white box. He then went to the return counter where he returned two cutwelders and a "Quick-Weld" for a store credit of $685.48, without a receipt. In Wal-Mart those items are displayed in the automotive aisle where defendant had removed them.


Defendant then returned to the automotive department and removed an additional twenty eight items from the shelves which he then purchased using the credit he had received. The total cost of these items was $441.38.


At 5:30 p.m. that same evening, defendant returned to the same store. He entered the store with certain items in a cart. He again walked past the return counter and went to the automotive section. He removed items from these shelves then went to the return counter. Defendant returned a wire, hammer drill, twelve-volt winch, and a six-inch bench grind, with the receipt from the earlier visit. He also returned another "Quick-Weld" without a receipt. Defendant received $478.39 in store credit for the returned items. The dollar amount refunded from the "Quick-Weld" was $269.44. Apparently the jury found defendant guilty on Count One, only as to the "Quick-Weld," referring to the second incident, as they stated the amount of that theft as $269.44 on the verdict sheet. The total verdict was for $916.12.


. . . .


Later that night between 9 p.m. and 10 p.m. defendant redeemed a substantial part of the remaining credit at the Toms River Wal-Mart. The balance of the credit was redeemed by January 8, 2005 in Toms River. Obviously, the jury credited the State's version and rejected the defendant's version.


On defendant's direct appeal he alleged, among other things, that his trial counsel was ineffective. We determined, however, that the issue could not be resolved without an evidentiary hearing:

The claim for ineffective assistance of trial counsel (now deceased) requires an ample record, not available to us on this trial record. On his papers alone, defendant's claim is very self-serving and unpersuasive but he should have the opportunity to present his contention at a plenary hearing. . . . [W]e rely on [State v. Preciose, 129 N.J. 451, 460 (1992)].


In October 2007, defendant filed a petition for PCR alleging that trial counsel, who died on July 17, 2006, was ineffective for failing to obtain an expert witness "to dispute the video evidence introduced by the State." In addition, defendant claimed that his attorney was deficient because he failed to consult with defendant before he "turned down a favorable plea"; "failed to file a motion to suppress the video surveillance tape"; "failed to call witnesses to testify [on] his behalf"; "failed to prepare a defense" for his case; and failed to argue for mitigating factors at sentencing. Defendant and the prosecutor who tried the case were the only witnesses to testify at the evidentiary hearing conducted by the PCR court on July 14, 2008.

After considering the testimony and reviewing trial counsel's detailed handwritten notes, the judge set forth her reasons for denying defendant's petition in a comprehensive fourteen-page written decision dated September 11, 2008. On appeal to this court, defendant raises the same issues he presented to the Law Division. Based on our review of the record, we conclude that defendant's arguments are clearly without merit, Rule 2:11-3(e)(2), and we affirm with only the following comments.

Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "First, the defendant must show that counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must [demonstrate] that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).

In the present matter, Judge Villano found that defendant failed to establish both prongs of the Strickland/Fritz test, and the record fully supports that determination. See State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000) ("Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists."). We therefore affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Villano in her written decision on September 11, 2008.