STATE OF NEW JERSEY v. MAURICE SHEPARD

NOT FOR PUBLICATION WITHOUT THE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.

MAURICE SHEPARD,

Defendant-Appellant.

________________________________________________________________

May 13, 2014

Submitted April 29, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-01-00058.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Maurice Shepard appeals from the Augusts 8, 2012 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons expressed in Judge Joseph P. Donahue's thorough statement of reasons attached to his order.

A jury found defendant not guilty of murder, N.J.S.A. 2C:11-3(a)(1) and (2), but guilty of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2) (count one); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count three). Defendant was sentenced to an extended term of fifteen years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed on appeal. State v. Shepard, No. A-3569-07 (App. Div. May 6, 2010). The Supreme Court denied defendant's petition for certification. 203 N.J. 438 (2010).

The facts underlying defendant's convictions as well as the trial proceedings are set forth in our opinion affirming his convictions and need not be repeated at length here. Shepard, supra, slip op. at 3-8. Defendant was convicted of stabbing a man who had earlier beaten up the defendant in a fistfight. Witnesses, including defendant's mother, testified that they observed the fight and saw defendant removing the knife from the victim's neck. The victim identified defendant as his attacker before he expired. Defense counsel argued self-defense in response to the charges. In his PCR petition, defendant argues that his lawyer was ineffective in not listening to defendant's trial strategy, which was to argue that he was not the individual who stabbed the victim.

In his PCR appeal, defendant raises the following issues:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY CORRECT R. 3:22-2 PRIMA FACIE CRITERIA.

POINT II: TRIAL COUNSEL'S UNILATERAL DECISIONS TO PRESENT A DEFENSE OF SELF-DEFENSE, AND TO CALL MS. BRANDON AS A WITNESS IN SUPPORT OF THAT DEFENSE, RESULTED IN PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV: POST-CONVICTION RELIEF SHOULD BE GRANTED BECAUSE CUMULATIVE ERRORS DENIED DEFENDANT A FAIR TRIAL.

The standard of review of a PCR petition denial is whether the judge's findings were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we engage in "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotation marks and citations omitted).

A deprivation of the constitutional right to effective assistance of counsel occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). See also State v. Fritz, 105 N.J. 42, 57-58 (1987) (adopting the Strickland two-part test in New Jersey).

Sufficient credible evidence supported Judge Donohue's finding that trial counsel's decision to argue self-defense and his decision to call defendant's mother as a witness represented sound trial strategy that resulted in a conviction for a lesser charge than murder. Judge Donohue presided over the trial and was well aware of the evidence presented.

Affirmed.