STATE OF NEW JERSEY v. JAMES BLACKBURN

NOT FOR PUBLICATION WITHOUT THE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.

JAMES BLACKBURN,

Defendant-Appellant.

________________________________________________________________

April 22, 2014

Submitted March 12, 2014 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-12-1507.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant James Blackburn appeals from a May 11, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons stated by Judge Raymond A. Reddin in his well-reasoned written opinion.

Following a four-day trial, a jury convicted defendant of second-degree aggravated assault as the lesser-included offense of attempted murder, N.J.S.A. 2C:12-1(b)(1); second-degree possession of a weapon for an unlawful purpose without a permit, N.J.S.A. 2C:39-5(b); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b)(1). After appropriate mergers, the court sentenced defendant to an aggregate nine-year custodial term with an eighty-five percent parole disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a consecutive custodial term of eight years' imprisonment with a five-year parole disqualifier for the certain persons offense. We affirmed the conviction and sentence on direct appeal.

Defendant filed a timely PCR petition in which he alleged, among other things, ineffective assistance of counsel. He claimed counsel had failed to call the victim as a witness, and had pressured defendant not to testify at trial. Following oral argument, Judge Reddin denied the petition in its entirety. The judge rejected defendant's claim of ineffective assistance of counsel, noting first that trial counsel had subpoenaed the victim to testify at trial, but he did not appear. The judge recognized trial counsel had strategically used the victim's non-appearance to make additional arguments on defendant's behalf. Next, the judge found that defendant, rather than his attorney, had elected not to testify.

On appeal, defendant argues:

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 At the Trial Level Involving Trial Counsel Pressuring Him Not to Testify at Trial, He was Entitled to An Evidentiary Hearing to Fully Address His Contention.

We have considered defendant's contentions in light of the record and applicable legal principles, and conclude they lack merit.

Rule 3:22-10(b) recognizes judicial discretion to conduct evidentiary hearings on post-conviction claims. A defendant "shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief[.]" R. 3:22-10(b). To establish a prima facie case, a "defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." Ibid. "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief and the facts supporting the claim are outside the trial record." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing State v. Preciose, 129 N.J. 451, 462 (1992)), certif. denied, 162 N.J. 199 (1999).

Defendant contends a hearing was necessary to assess his claim that trial counsel coerced him not to testify. This assertion is belied by the trial record that demonstrates defendant waived his right to testify after a comprehensive voir dire by his counsel and by the court. At that time, the judge fully explained to defendant his right to testify before defendant made his decision whether to take the stand in his own defense. The judge's questions ensured defendant understood the decision to testify was his and not that of his attorney. The judge also explained if defendant testified, he would be subject to impeachment by introduction of his prior criminal convictions. After defendant informed the judge of his choice not to testify, the judge offered defendant the opportunity to decide if the jury should be informed that he exercised his right to remain silent. We are satisfied Judge Reddin thoroughly analyzed defendant's responses and properly concluded that defendant made the decision not to testify on his own accord, without coercion from his attorney.

Based upon our review of the record, we agree with the PCR judge that defendant failed to present a prima facie case of ineffective assistance of counsel. Therefore, an evidentiary hearing was not warranted. Preciose, supra, 129 N.J. at 462.

Affirmed.