STATE OF NEW JERSEY v. RONNIE L. BOYKIN

NOT FOR PUBLICATION WITHOUT THE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.

RONNIE L. BOYKIN,

Defendant-Appellant.

_________________________________________

August 1, 2014

Submitted February 24, 2014 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1766.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ronnie L. Boykin appeals from the denial, without an evidentiary hearing, of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm for the reasons set forth by the PCR judge on the record on July 25, 2012.

On August 4, 2008, defendant pleaded guilty to second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b). In exchange, the State dismissed one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and one count of fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1, and agreed to a sentence of five years, with a five-year parole disqualifier. On November 14, defendant was sentenced pursuant to the plea agreement. Defendant had a previous conviction of possession of a controlled dangerous substance (CDS) with intent to distribute pursuant to N.J.S.A. 2C:35-5, a predicate offense which subjected defendant to a mandatory five-year parole disqualifier under N.J.S.A. 2C:39-7(b).

Defendant appealed, alleging the trial court erred in denying his motion to suppress the gun found on him by police. We affirmed the denial of the motion to suppress and the conviction. State v. Boykin, No. A-2154-08 (App. Div. March 1, 2010). The Supreme Court denied certification. State v. Boykin, 202 N.J. 348 (2010).

On August 17, 2011, defendant filed a pro se PCR petition to set aside his guilty plea and conviction. Defendant alleged (1) ineffective assistance of counsel; (2) excessive sentence; (3) his prior criminal record did not warrant the sentence imposed; and (4) a request for relief from the excessive sentence with a reduction that fits his criminal history and culpability. Counsel filed a supplemental letter brief alleging that defendant was denied effective assistance of counsel "due to the cumulative errors of counsel during the suppression proceeding" because trial counsel did not adequately challenge the police officer's testimony, and that the police did not have grounds for a field inquiry or reasonable or articulable suspicion.

After hearing arguments on July 25, 2012, the PCR judge denied defendant's petition and entered a corresponding order. The judge noted that defendant received the minimum sentence of five years for a violation of N.J.S.A. 2C:39-7(b), second-degree certain persons not to have weapons. The judge also held that defendant's claim concerning the denial of his suppression motion was procedurally barred under Rule 3:22-5 because the issue was adjudicated on direct appeal.

On appeal, defendant raises the following issues:

POINT I

THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS, AND A REMAND IS REQUIRED TO SUPPLEMENT THE RECORD.

POINT II

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

We find no merit in these arguments and affirm the court's order denying defendant's PCR petition for the reasons stated on the record on July 25, 2012. We add only the following comments.

In order 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. State v. Preciose, 129 N.J. 451, 463 (1992). That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

Adequate assistance of counsel is measured by a standard of "reasonable competence." State v. Fritz, 105 N.J. 42, 60-61 (1987). This standard "does not demand 'the best of attorneys,' but rather requires that attorneys be not 'so ineffective as to make the idea of a fair trial meaningless.'" State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003). Thus, the 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.'" Fritz, supra, 105 N.J.at 52 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)). "Reasonable probability" means "'a probability sufficient to undermine confidence in the outcome.'" Ibid.(quoting Strickland, supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed.2d at 698). Defendant does not establish the deficiency of his counsel's performance or any prejudice to his defense, and therefore, he did not demonstrate that the result of the proceeding would have been different.

Defendant contends that trial counsel was ineffective by failing to adequately challenge the testimony of the police officers who testified at the suppression hearing. However, defendant fails to explain how his attorney deviated from what a reasonable attorney would or should have done, or that the motion to suppress would have been granted had counsel proceeded at the hearing differently. As the PCR judge found,

There's nothing presented beyond a bald assertion that trial counsel failed to adequately challenge . . . the testimony of the police officers regarding the circumstances of the initial seizure of the defendant. There's no transcript presented that would show me anything in terms of how that proceeding went forward, and would have perhaps a tendency to persuade me that the defense attorney, the trial counsel's performance was Constitutionally sub-par. There are no specific deviations alleged from what a reasonable attorney would or should have done, how he would have conducted his cross examination in the circumstances.

The judge further determined that there was no basis in the record to support a prima facie case of ineffective assistance of counsel and therefore no reason "to conduct an evidentiary hearing." We agree with the PCR judge and conclude that defendant failed to establish a prima facie case of ineffective assistance of counsel.

Defendant's additional arguments do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.