STATE OF NEW JERSEY v. VICTOR PENZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR PENZO,

Defendant-Appellant.

__________________________

October 16, 2013

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0477.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Victor Penzo appeals from the August 25, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and was sentenced to a twenty-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Penzo, No. A-4616-06 (App. Div. Jan. 8, 2009), certif. denied, 198 N.J. 474 (2009).

Defendant timely filed a PCR petition, contending that trial counsel rendered ineffective assistance by failing to: investigate and locate witnesses who would have bolstered his claim of self-defense; request a Driver1 hearing; and object more sufficiently to submitting a transcript of his statement to the police to the jury. Defendant also contended that appellate counsel rendered ineffective assistance by failing to argue that defendant was unduly prejudiced and denied a fair trial when his statement to the police was given to the jury after he testified.

In an August 25, 2011 oral opinion, Judge Venable denied the petition, concluding that defendant failed to satisfy the first prong of the Strickland test that trial and appellate counsel rendered ineffective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge found that defendant failed to provide the names of the alleged witnesses, as well as certifications or affidavits from those witnesses asserting facts that would have been favorable to defendant. The judge found that trial counsel had "vehemently objected" to the admission of the transcript of defendant's statement, the transcript was admissible and properly admitted into evidence, and defendant failed to point to any inaccuracy in the transcript. The judge also found that appellate counsel was not required to raise unsuccessful arguments.

Even assuming that defendant had satisfied the first prong of the Strickland test, Judge Venable concluded that defendant failed to satisfy the second prong that trial and appellate counsels' deficiency prejudiced his defense. Ibid. The judge found that multiple eyewitnesses and other evidence of defendant's guilt were presented at trial. This appeal followed.

On appeal, defendant raises the following contention:

The Court should reverse the denial of defendant's [PCR] and remand this matter for an evidentiary hearing on defendant's claims.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the 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 only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "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.

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, 105 N.J. 42, 52 (1987), the 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.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Venable in her well-reasoned August 25, 2011 oral opinion.

1 State v. Driver, 38 N.J. 255 (1962).