STATE OF NEW JERSEY v. LUIS R. FIGUEROA

NOT FOR PUBLICATION WITHOUT THE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.

LUIS R. FIGUEROA,

Defendant-Appellant.

___________________________

June 15, 2015

Submitted May 26, 2015 Decided

Before Judges Simonelli and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-0371.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Luis R. Figueroa appeals from the August 27, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) following a partial evidentiary hearing. For the following reasons, we affirm.

Following a jury trial, defendant Luis Figueroa was convicted of second-degree robbery, N.J.S.A. 2C:15-1. The trial judge subsequently found defendant guilty of resisting arrest, N.J.S.A. 2C:29-2(a)(1), a disorderly persons offense. The charges stemmed from defendant's fight with a Stop & Shop store manager while attempting to leave the store without paying for merchandise. The incident was captured on videotape, which was played to the jury.

The trial judge sentenced defendant to an 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, on the robbery charge, and to a concurrent six months in the county jail on the resisting arrest charge. The judge also imposed a $200 Violent Crimes Compensation Board (VCCB) assessment for the disorderly persons conviction, among other things.

Defendant appealed his conviction and sentence. We affirmed the conviction and sentence, but reversed the imposition of the VCCB assessment and remanded for the entry of a corrected judgment of conviction to reduce the assessment to $50 on the disorderly persons conviciton. State v. Figueroa, No. A-6437-08 (App. Div. Mar. 2, 2011). Our Supreme Court denied certification. State v. Figueroa, 207 N.J. 188 (2011).

Defendant timely filed his PCR petition, arguing, in part, that trial counsel rendered ineffective assistance by failing to properly prepare for or speak with him prior to the trial. Defendant also argued that trial counsel rendered ineffective assistance by advising him not to testify and appellate counsel rendered ineffective assistance by failing to raise all appropriate issues on direct appeal.

In a May 16, 2013 order and written opinion, the PCR judge found that following a Sands1 hearing, trial counsel exercised sound legal strategy by advising defendant not to testify due to defendant's three admissible indictable convictions. The judge also found that defendant failed to specify any issues that appellate counsel should have raised on direct appeal. Accordingly, the judge held that defendant failed to satisfy the two prongs in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) that counsels' performance was deficient and the deficient performance prejudiced the defense. However, the judge found that defendant's claim that trial counsel failed to adequately prepare for trial merited further review at an evidentiary hearing.

Following a hearing, in an August 27, 2013 order and written opinion, the judge found that defendant failed to show any deficiency in trial counsel's trial preparation or that he was prejudiced thereby. The judge emphasized that given the overwhelming evidence of defendant's guilt, defendant could not show that the result would have been different. This appeal followed.

On appeal, defendant concedes that he did not specify the issues that appellate counsel should have raised on direct appeal. However, he argues, again without any specificity, that he was entitled to an evidentiary hearing regarding appellate counsel's performance because "there were issues with jury selection" that counsel should have raised on direct appeal. Defendant also contends that the PCR judge erred by finding that trial counsel was not ineffective in his trial preparation or in advising him not to testify.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons the PCR judge expressed in his May 16, 2013 and August 27, 2013 written opinions. However, we make the following brief comments.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013); State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. State v. O'Neil, 219 N.J. 598, 611 (2014).

"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.

We are satisfied that defendant failed to make a prima facie showing of ineffective assistance of appellate counsel to warrant an evidentiary hearing and failed to satisfy both prongs of Strickland as to trial counsel.

Affirmed.

1 State v. Sands, 76 N.J. 127 (1978).