STATE OF NEW JERSEY v. HAROLD DAWES

NOT FOR PUBLICATION WITHOUT THE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.

HAROLD DAWES,

Defendant-Appellant.

____________________________________

September 21, 2015

Submitted March 18, 2015 Decided

Before Judges Fuentes and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-0255.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor,attorney forrespondent (LucilleM. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

On October 4, 2007, a jury convicted defendant Harold Dawes of first degree armed robbery, N.J.S.A. 2C:15-1, third degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b1, and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. On December 14, 2007, the trial court sentenced defendant to an aggregate term of sixteen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision as mandated pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed defendant's conviction and sentence on direct appeal in an unpublished, per curiam opinion. State v. Harold Dawes, Docket No. A-5197-07 (App. Div. March 9, 2010). The Supreme Court denied defendant's petition for certification. State v. Dawes, 203 N.J. 439 (2010). Defendant filed a petition seeking post-conviction relief (PCR) on November 1, 2011, alleging ineffective assistance of trial counsel. Specifically, defendant claimed his attorney: (1) did not conduct a proper investigation in support of his alibi defense; (2) coerced him not to testify at trial in his own defense; and (3) failed to request and state the reasons why the juvenile record of the victim of the robbery was needed.

By order dated November 2, 2011, the trial court assigned counsel to represent defendant in the prosecution of this PCR petition. PCR counsel filed an amended petition and brief on defendant's behalf and presented oral argument before the PCR judge on October 28, 2013. After considering the record and applying the relevant standards of review, the PCR judge found defendant had not presented a prima facie case of ineffective assistance of counsel and an evidentiary hearing on the issue was not required. The judge placed her statement of reasons on the record and denied defendant's PCR petition in an order dated the same day.

Defendant now appeals raising the following arguments

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER R. 3:22 POST-CONVICTION RELIEF STANDARDS.

POINT II

THE PCR COURT'S RULING VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We reject these arguments and affirm. We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate 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. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Applying these standards to the record developed before the PCR court, we are satisfied defendant has not presented a prima facie case of ineffective assistance of trial counsel. We will not restate here the evidence presented at defendant's trial that led to his conviction. Instead, we incorporate by reference the salient facts of the case as we described in our opinion affirming defendant's conviction on direct appeal. Dawes, supra, Docket No. A-5197-07, slip op. at 3-5. This record shows the State presented overwhelming evidence establishing defendant's guilt beyond a reasonable doubt. By contrast, defendant did not present any competent evidence supporting his claims of ineffective assistance of trial counsel. In short, defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 The Legislature amended N.J.S.A. 2C:39-5b in 2009 making possession of a handgun without a permit a second degree offense.