STATE OF NEW JERSEY v. RICHARD A. SCOTT

NOT FOR PUBLICATION WITHOUT THE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.

RICHARD A. SCOTT,

Defendant-Appellant.

________________________________

June 26, 2015

Submitted March 25, 2015 Decided

Before Judges Maven and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-2792.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard Scott appeals from the February 22, 2013 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Tried to a jury on May 13, 14, and 15, 2008, Scott was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(1); second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and 2C:35-5(b)(1); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b); second-degree weapons possession during CDS offenses, N.J.S.A 2C:39-4.1(a); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The court dismissed the charge of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). After merger, Scott received an aggregate No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, sentence of twenty years in prison, and a consecutive term of ten years imprisonment, with an aggregate thirteen-year period of parole ineligibility. Scott appealed, raising three issues: the admission of a lab report, the prosecutor's summation, and the sentence imposed. We rejected all of these arguments and affirmed. State v. Scott, No. A-0081-08, (App. Div. March 2, 2011). The Supreme Court denied certification. State v. Scott, 207 N.J. 190 (2011).

Scott filed a timely pro se petition for PCR, arguing ineffective assistance of counsel for failing to adequately communicate with him. The petition states

[T]he lawyer client relationship had deter[iorated] and became hostile. In addition [trial counsel] ask[ed] Judge Natal could he withdraw from representing me. Judge Natal decline[d] and there was no interest in me far as [trial counsel] representing me. I did not attend trial until last day. I did not want him representing me.

Appointed counsel filed a supplemental brief.1 After hearing the arguments of counsel, including additional allegations that had not been included in Scott's PCR petition, Judge Samuel D. Natal, the same judge that presided at Scott's trial, denied the petition.

After canvassing the record, and reciting the familiar elements of the Strickland/Fritz2 test applicable to claims of ineffective assistance of counsel, the judge summarized Scott's arguments

The petitioner asserts that his [S]ixth [A]mendment right that assures him effective assistance of counsel was violated by counsel's constitutionally inadequate performance. This assertion has the basis in the following arguments: One, counsel was ineffective in communicating to the petitioner which is evident in that the petitioner stated on the record that counsel was not his attorney. . . . Two, counsel failed to provide discoverable material to the petitioner . . . . Three, counsel was disadvantaged in cross-examining the State's witness by failing to have a suppression transcript in the [c]ourt. Four, counsel failed to object to the introduction of the lab report that revealed cocaine possession. Five, counsel was ill prepared for his direct examination of the petitioner, and six, counsel failed to consult with petitioner regarding plea agreements or trial strategy.

As an initial matter, it's important for the [c]ourt to note that although the petitioner asserts ineffective assistance based on the aforementioned allegations, his brief neither elaborates on the assertions nor provides support with similar case law to bolster these assertions. Further, his brief fails to effectively demonstrate how the alleged ineffectiveness shows prejudice. There are no supporting affidavits or certifications to that effect.

While addressing Scott's claims, Judge Natal concluded

Before the [c]ourt on more than one occasion, the petitioner claimed in breakdowns of communication between his counsel and him. The record additionally reflects that the petitioner's desire to seek a new public defender, as his trial [counsel] was a pool attorney appointed by the State, during which counsel moved to withdraw his representation and have new counsel assigned because the petitioner insisted he needed a private attorney. However, at each turn when the [c]ourt promptly addressed the petitioner and gave him the forum to discuss these matters, the petitioner failed to set forth any responses that would rise to the level of a substantial cause.

In effect, the petitioner proffered no instances of ineffectiveness or prejudice as a result of counsel's failure to communicate.

. . . .

Accordingly, the petitioner's claim on this point has no merit in the present petition for post-conviction relief. In fact, the [c]ourt, after examining the record, finds that the difficulty in communication between counsel and the petitioner was both created and perpetrated by the petitioner. Counsel complained to the [c]ourt that the petitioner refused to communicate with him . . . stating for the record following the petitioner's testimony, his consternation over the fact that until the morning of the testimony, the petitioner had avoided communicating with him.

The petitioner made it clear that he did not wish to communicate with counsel.

. . . .

The petitioner also claims counsel was constitutionally deficient for not having objected to the State's certification of a lab report that revealed the presence of 5.83 ounces of cocaine. Further, the petitioner now claims that he instructed his counsel to object to not only the lab report but also to everything. On May 13, 2008, the petitioner's counsel[,] as opposed to objecting to the admission of the report, stipulated to its admission.

. . . .

In this matter, while the defendant indicates he told his attorney to object to everything, there's no basis for the [c]ourt to know what he's to object to as required by the statute. It's not unusual for a competent and experienced trial attorney to decide to stipulate to the contents of an uncontested lab report. . . . In effect, such a decision constitutes trial strategy, to serve to reserve public resources and properly utilize the court time. Rather, as it pertains to a claim of constitutional effectiveness on the part of trial counsel, failed strategy alone fails to meet the Strickland standard.

In response to Scott's request for an evidentiary hearing, Judge Natal ruled

Here, no evidentiary hearing is warranted, as the opinion [h]as revealed, the petitioner failed to present a prima facie case of ineffective assistance of counsel as required by Strickland and Fritz. Further, the petitioner's initial petition . . . for post-conviction relief, although accompanied by a supporting brief, presents neither affidavits nor certifications in support of his allegations.

The [c]ourt is in receipt of only assertions and arguments that neither arise to the level of ineffective assistance of counsel, nor persuade the [c]ourt to pursue any further examination. Therefore, the request for an evidentiary hearing on this matter is denied pursuant to the rule. For all of these reasons, the [c]ourt is denying petitioner's request for post-conviction relief.

Defendant appeals, arguing in a single point

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

Where the trial court does not conduct an evidentiary hearing on a PCR petition, we may review de novo the factual inferences the court has drawn from the documentary record. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We also review de novo the court's conclusions of law. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). After close examination of the record in light of the contentions posed in this appeal, we affirm substantially for the reasons set forth by Judge Natal in his comprehensive and well-reasoned oral decision. We add only the following.

As the record reveals, by his own admission, Scott refused to cooperate with his trial counsel prior to and during the trial. Scott chose not to attend the entire trial, and therefore, was not present to hear his counsel's examination of witnesses, or the objections made on his behalf. Though Scott complained to the court numerous times, when given the opportunity to address the court, Scott failed to specify the reasons why he was dissatisfied with his counsel's performance. Defendant cannot be heard to complain if he has elected not to communicate with his attorney, and absented himself from trial.

We therefore agree with the PCR judge that defendant's allegations were merely complaints about his attorney's conduct that fail to establish a prima facie case of ineffective assistance of counsel or warrant an evidentiary hearing.

Affirmed.

1 We have not been provided a copy of the supplemental brief.

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