STATE OF NEW JERSEY v. W.L.-J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

W.L.-J.,

Defendant-Appellant.

_____________________________

September 25, 2015

Submitted September 16, 2015 Decided

Before Judges Sabatino and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0462.

Law Offices of Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant W.L.-J. appeals from the denial of his second petition for post-conviction relief (PCR) claiming the attorney who represented him on direct appeal and on his first PCR application rendered ineffective assistance. We disagree and affirm.

Defendant was convicted by a jury of first-degree aggravated sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14-2(a)(1); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and sentenced to an aggregate ten-year term of imprisonment subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirmed defendant's conviction on direct appeal but deferred consideration to a PCR petition defendant's claims that his trial counsel was ineffective for having failed to call a witness to counter the State's medical expert, to object to his ex-wife's testimony that he was jailed for domestic violence against her, to challenge the State's method of interviewing the child, and to move for a judgment of acquittal under Rule 3:18-2, State v. W.L.J., No. A-0819-08 (App. Div. Mar. 25, 2011). We did, however "in the interests of justice and at defendant's urging," consider and reject his claim that a new trial should have been granted, barring that issue from consideration in post-conviction proceedings pursuant to Rule 3:22-5. W.L.J., supra, slip op. at 29-30.

Defendant did not petition for certification. Employing the same counsel who represented him on his direct appeal, defendant filed a PCR petition raising the claims we deferred to that proceeding. The same judge who presided over defendant's trial considered those claims and denied them without an evidentiary hearing in March 2013.

Defendant did not appeal the denial of his PCR petition. Instead, three months later, he filed his second PCR petition claiming his appellate counsel rendered ineffective assistance by failing to petition for certification following our denial of his appeal and being "conflicted by handling my original post-conviction relief petition, blocking review of his mishandling of my direct appeal."

The same judge who presided over defendant's trial and his first PCR proceeding heard oral argument and denied the second petition. The judge noted defendant had no right of appeal following our unanimous affirmance of his conviction and sentence, and that counsel could not be considered ineffective for failing to petition the Court for certification. The judge further found no impermissible conflict by counsel representing defendant on direct appeal and on his first PCR application.

Defendant appeals raising the same issues, that counsel was ineffective for not petitioning for certification after we denied relief on his direct appeal, thereby precluding defendant from seeking habeas relief, for failing to appeal from the denial of his first PCR petition and by putting himself in a position of "inherent conflict in representing a defendant during direct appeal and then again during the PCR."

We review the legal conclusions drawn by a trial court on PCR de novo. 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). Because there was no evidentiary hearing in this matter, we likewise exercise de novo review over the factual inferences the trial court drew from the record. Id. at 421.

To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial;" instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). Measured by that standard, defendant has not established that he received ineffective assistance of counsel on this record.

We do not agree with defendant's assertion that "it is more than likely that the Supreme Court would have granted certification since the trial court had such problems with the State's proofs." Defendant bases that argument on the trial judge's comment to defendant at his sentencing that the judge, who had the benefit of seeing defendant's ex-wife testify at the pre-trial hearing as well as at trial, did not find her credible and would not have voted to convict defendant had the judge been on the jury. We addressed this issue at length in our opinion on defendant's direct appeal. W.L.J., supra, slip op. at 13-19. Indeed, it was that comment that impelled us to consider whether the trial court should have sua sponte set aside the verdict as against the weight of the evidence, notwithstanding that defendant's counsel did not move for a new trial under Rule 2:10-1. Id. at 13-14.

After thoroughly canvassing the record, we concluded "[t]he proofs . . . were sufficient to present to the jury a rational basis to find beyond a reasonable doubt that the crimes were committed," and thus that there was "sufficient support to conclude that the verdict was not against the weight of the evidence." Id. at 19. The case turned on the credibility of the witnesses. That issue, of course, was for the jurors, not the judge, to decide; a point the trial judge also noted to defendant at sentencing. The judge explained to defendant that it was not for the judge "to act as a 13th juror . . . ." Id. at 14. Because there was sufficient evidence in the record to allow the jury to determine that defendant was indeed guilty of the crimes charged, and we could find no basis for defendant's numerous claims of trial error, defendant's argument that certification should have or was likely to have been granted is without merit.

Accordingly, we cannot conclude that appellate counsel was ineffective for failing to file a petition for certification that had little chance of success. See Harris, supra, 181 N.J. at 518-20. Defendant's argument that the failure to file the petition has deprived him of the chance of habeas review does not appear to be in accord with federal law, see Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984), and is speculative in any event as defendant has not apparently sought habeas review or demonstrated any likelihood of obtaining relief in such a proceeding on the merits.

We likewise find no error in defendant's counsel's failure to file an appeal from the trial court's denial of defendant's first petition for PCR. Defendant does not claim that he directed his counsel to file an appeal on his behalf, or that upon realizing no appeal was filed that he sought relief from this court nunc pro tunc. Moreover, defendant does not explain why such an appeal would have been successful, a prerequisite to obtaining relief in these circumstances. See State v. Echols, 199 N.J. 344, 361 (2009) (explaining that without a showing of reversible error, the failure of appellate counsel to have raised an issue "could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different").

Defendant has not cited any case in support of his argument that there is an inherent conflict in counsel on direct appeal representing the same defendant on a subsequent petition for PCR, and our research has not uncovered such a case. Accordingly, we find no basis for defendant's argument that he was prejudiced by appellate counsel's successive representation of him in this matter.

Finally, we reject defendant's argument that the judge should have held an evidentiary hearing on his petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. State v. Preciose, 129 N.J. 451, 462 (1992);

R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland. Preciose, supra, 129 N.J. at 462-63. As defendant did not establish a prima facie case for relief, no evidentiary hearing was required.

Affirmed.