STATE OF NEW JERSEY v. JEFFREY C. LEAK

NOT FOR PUBLICATION WITHOUT THE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.

JEFFREY C. LEAK,

Defendant-Appellant.

__________________________________

April 15, 2014

Submitted April 7, 2014 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-04-1153.

Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jeffrey C. Leak appeals from the February 3, 2012 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Tried to a jury, Leak was convicted on April 8, 2008, of seven crimes, including first-degree attempted murder and second-degree certain persons not to have weapons. After merger, he received a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, sentence of sixteen years in prison plus a consecutive term of seven years imprisonment with a five-year period of parole ineligibility.

On direct appeal, after considering his five points of contention, we affirmed the conviction and sentence. State v. Leak, No. A-4556-07 (App. Div. July 1, 2010). The Supreme Court denied certification. State v. Leak, 205 N.J. 98 (2010).

On January 21, 2011, Leak filed a pro se application for PCR, arguing that his trial lawyer "did nothing to prepare a defence [sic] on [his] behalf," forcing Leak "to take [the] stand to try to defend [him]self." After PCR counsel was appointed, a comprehensive brief was submitted on Leak's behalf arguing that both trial and appellate counsel were ineffective largely due to each attorney's failure to investigate the case and properly communicate with Leak.

A PCR hearing, but not an evidentiary hearing, was conducted by the same judge who presided at Leak's trial (in 2008) and was fully familiar with the case. After canvassing the record, and reciting the familiar elements of the Strickland/Fritz1 test that is applied to claims of ineffective assistance of counsel, the PCR judge concluded,

In the end, what we have is the defendant's generalized and inconsistent factual position about trial preparation and presentation being considered against the detailed affidavit of trial counsel [that] explains rather substantial investigatory and preparatory efforts.

[Trial counsel] did not present evidence that she determined would be irrelevant, inconsistent or otherwise harmful to the defendant's case, and . . . to the extent that there are arguable factual disputes between the two versions of what happened here, I'm left to conclude that there's no particularly strong showing that this evidence coming out in favor of the defendant would have had any particular impact on the outcome of the case anyway, given the overwhelming evidence that otherwise existed in this case relative to the defendant's guilt.

. . . .

As to the conduct of [a]ppellate counsel, the [c]ourt will accept the defense's assertion for the purposes of argument that there was no communication between [a]ppellate counsel and the defendant. As such, under the [R]ules of Professional Conduct, the RPC's, that does constitute or would constitute a deficiency on the part of [a]ppellate counsel. However, there is no assertion of any particular legal issue that should have been pursued in fact in this case.

The [c]ourt reviewed the five errors presented in [the twenty-eight] page [Appellate Division] opinion and affirmed the trial court on all points. Accordingly, the second prong of Strickland as to actual prejudice relative to the lack of communication arguably on the part of [a]ppellate counsel is not met.

An order denying PCR relief was entered on February 3, 2012. This appeal followed.

II.

On appeal, Leak presents the following points for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO THOROUGHLY INVESTIGATE ALL POSSIBLE DEFENSES RAISED BY DEFENDANT.

C. COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO ADEQUATELY CROSS-EXAMINE THE ALLEGED VICTIM DURING TRIAL.

D. APPELLATE COUNSEL RENDERED INEFFECTIVE LEGAL REPRESENTATION BY VIRTUE OF HER FAILURE TO COMMUNICATE WITH DEFENDANT PRIOR TO FILING AND ARGUING DEFENDANT'S APPEAL.

E. DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT TO AFFORD HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

We are unpersuaded.

The standard for determining whether a trial or appellate attorney's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, and adopted by our Supreme Court in Fritz.2 To establish a prima facie claim of ineffective assistance of counsel, Leak must demonstrate a reasonable likelihood of success under the Strickland framework.

Under Strickland's first prong, Leak must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish the first prong, "a defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the "counsel" guaranteed' by the Sixth Amendment." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted).

Under the second prong, Leak must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "[T]he defendant must show that the deficient performance prejudiced the defense." State v. Taccetta, 200 N.J. 183, 193 (2009) (quotation marks and citation omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

An applicant for post-conviction relief must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). One seeking such a remedy must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the applicant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[B]ald assertions" of ineffective assistance are not enough. Ibid.

Leak would be entitled to an evidentiary hearing only if he makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. But where there are "material issues of disputed fact which cannot be resolved by reference to the existing record an evidentiary hearing should be held." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Here, notwithstanding the debatable discordance between Leak's version of trial preparation events and the account of his former trial attorney, the PCR judge rightly determined that the totality of the record convincingly negated Leak's grievances, which, at their core, are simply differences of opinion over trial strategy. "A criminal defendant's constitutional guarantee of loyal counsel and open communication, however, does not equate to a guarantee of attorney-client rapport." Miller, supra, 216 N.J. at 64.

Our review of the record yields the same conclusion reached by the PCR judge concerning trial counsel: the proposed supplementation of information about Leak's contentious relationship with the victim, Leak's physical condition at the time of the crime, Leak's prowess with martial arts, and the circumstance surrounding a key to the apartment where Leak assaulted the victim were all inconsequential and would have been ineffectual in altering the verdict. Furthermore, nothing in the record competently supports the contention that trial counsel was either ill-prepared or engaged in meaningless cross-examination. Finally, we see nothing untoward that impelled Leak to elect to testify against his better judgment.

Leak's ineffective assistance claims with respect to appellate counsel fare even worse. He argues, without a shred of evidence or logical reasoning to support it, that "had appellate counsel consulted with him prior to filing an appellate brief on his behalf, he would have been able to provide meaningful input, which would have increased his chances on appeal." We are left to speculate about the nature of this "meaningful input" and how it would have affected the outcome of the appeal because no details were provided. This claim falls squarely within our state's "bald assertions" jurisprudence, Cummings, supra, 321 N.J. Super. at 170, which rejects conjectural claims of ineffective assistance of counsel based upon wishful thinking.

1 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

2 The Strickland/Fritz model remains in full force and effect. See Burt v. Titlow, ___ U.S. ___, 134 S. Ct. 10, 13, 187 L. Ed. 2d 348, 351 (2013); State v. Miller, 216 N.J. 40, 58 (2013), cert. denied, Miller v. New Jersey, ___ U.S. ___, ___ S. Ct. ___, 188 L. Ed. 2d 339 (2014).