STATE OF NEW JERSEY v. SHARIF ALI BASS

NOT FOR PUBLICATION WITHOUT THE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.

SHARIF ALI BASS,

Defendant-Appellant.

______________________________

June 23, 2015

Submitted May 12, 2015 Decided

Before Judges Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Law Divisions, Monmouth County, Indictment No. 06-07-1613.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an order denying his petition for post-conviction relief ("PCR"). He contends that his trial counsel provided ineffective assistance. We affirm.

On July 31, 2006, defendant and three co-defendants were charged in Monmouth County Indictment No. 06-07-1613 with second-degree conspiracy, N.J.S.A. 2C:5-2 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Three); and first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (Count Four). Defendant was also charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Six); and second-degree certain person not to have a weapon, N.J.S.A. 2C:39-7b(1) (Count Seven).

On September 16, 2008, defendant was charged in Monmouth County Indictment No. 08-09-2136 with third-degree theft from a person, N.J.S.A. 2C:20-3 (Count One); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Two); second-degree robbery, N.J.S.A. 2C:15-1 (Count Three); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Count Four). The charges in both indictments stemmed from a series of crimes in Asbury Park in September 2005, the most serious of which was the homicide of a victim who was violently set upon, robbed, and killed by defendant's cohorts.

On November 21, 2008, defendant entered a guilty plea, pursuant to a plea agreement, to an amended charge of first-degree aggravated manslaughter under Indictment No. 06-07-1613, and second-degree conspiracy to commit robbery under Indictment No. 08-09-2136. Defendant was sentenced to a twenty-eight year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the aggravated manslaughter charge, and to a ten-year concurrent term for the conspiracy charge. Defendant appealed, and we affirmed. State v. Bass, No. A-6264-08 (App. Div. Feb. 15, 2011), certif. denied, 208 N.J. 597 (2011).

Defendant filed a pro se PCR petition. PCR counsel was assigned and filed a supplemental brief and certification. Following oral argument on January 18, 2013, Judge Francis J. Vernoia issued a written opinion denying relief on August 9, 2013.

On appeal, defendant raises the following argument

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL'S INEFFECTIVENESS, IN THAT TRIAL COUNSEL DID NOT ADEQUATELY CONSULT WITH OR INVESTIGATE HIS MATTER.

We have considered this argument in light of the record and the applicable legal standards, and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Vernoia's thorough written opinion. We add the following brief remarks.

"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). "[A] defendant's claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required." 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." Ibid. "It is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013).

In determining whether a prima facie claim is established, courts must view the facts "in the light most favorable to a defendant," just as in a summary judgment motion. Preciose, supra, 129 N.J. at 462-63. A prima facie case is established if there is a reasonable likelihood of showing that 1) "counsel's performance was deficient" and 2) that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 463-64 (internal citations and quotation marks omitted).

Defendant argues that he was entitled to an evidentiary hearing based upon his assertion that his trial counsel failed to investigate an exculpatory witness and a diminished capacity defense, effectively communicate with him, and adequately discuss the terms and conditions of his plea agreement. In considering those arguments and denying relief, Judge Vernoia found that defendant "offer[ed] no facts upon which th[e] court could consider that if his trial counsel had met with him more often or communicated with him in person, as opposed to through video conferencing, that the result in his case would have been different[,]" and, as such, "ha[d] not satisfied the second prong of the Strickland standard."1 Similarly, the assertions that defendant's counsel failed to adequately investigate a diminished capacity defense and failed to investigate an exculpatory witness were also found to lack sufficient evidential support to demonstrate the likelihood of a different result. Judge Vernoia properly determined that defendant did "no morethan offer his conclusory opinion that such an investigation might have supported a diminished capacity defense[,]" thereby failing to show prejudice under Strickland/Fritz. Furthermore, defendant failed to present any evidence whatsoever that investigating the alleged exculpatory witness would have yielded information leading to a different result.

We agree that a plenary hearing was not warranted. Judge Vernoia correctly determined that no such prima facie case was established, as there was no reasonable likelihood of showing deficient performance or prejudice.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (providing that a criminal petitioner seeking relief on the grounds of ineffective assistance of counsel must establish (1) deficient performance of counsel such that a defendant was denied the Sixth Amendment's guarantee of counsel; and (2) prejudice to the petition resulting from counsel's deficient performance, such that the petitioner was deprived of a fair trial and reliable result); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland as the standard in New Jersey). The Strickland/Fritz standard applies to assertions of ineffective assistance of counsel associated with guilty pleas, and a petitioner seeking relief after entering a guilty plea must show a reasonable probability that, but for errors by counsel, he or she would have decided not to plead guilty and instead have gone to trial. State v. Gaitan, 209 N.J. 339, 350-51 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).