STATE OF NEW JERSEY v. GARRET MATTOX

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1193-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GARRET MATTOX, a/k/a
DEREK PEOPLES,

     Defendant-Appellant.
_______________________________

              Submitted May 14, 2018 – Decided May 25, 2018

              Before Judges Rose and Firko.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              10-12-1206.

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

              Michael A. Monahan, Acting Union County
              Prosecutor, attorney for respondent (Izabella
              M.   Wozniak,    Special   Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM

        Defendant Garret W. Mattox appeals from a September 28, 2016

order denying his petition for post-conviction relief (PCR) after
oral argument, but without an evidentiary hearing.          We affirm,

substantially for the reasons expressed in Judge John M. Deitch's

written opinion.

     Following trial, defendant was convicted of first degree

robbery and second degree aggravated assault, and was sentenced

to an aggregate twenty-year sentence subject to the No Early

Release Act, 
N.J.S.A. 2C:43-7.2.       See State v. Mattox, No. A-0644-

12 (App. Div. Dec. 26, 2014) (slip op. at 1) (affirming defendant's

convictions on direct appeal), certif. denied, 
222 N.J. 15 (2015).

The victim, an adult male, was brutally assaulted by defendant on

January 14, 2010, outside of a restaurant.      At the time of arrest,

the victim's wallet was found on defendant after he dislodged it

from the victim during the assault.        There were no eyewitnesses.

Defendant's trial counsel argued that the surveillance video did

not conclusively establish defendant being at the scene.

     Defendant presented a zealous defense at his trial. He called

witnesses and presented demonstrative evidence, including the

surveillance video.

     On appeal, defendant argues:

          POINT I:

          DEFENDANT WAS ENTITLED TO POST-CONVICTION
          RELIEF, OR, IN THE ALTERNATIVE, WAS ENTITLED
          TO AN EVIDENTIARY HEARING ON HIS CLAIM OF
          INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE
          COUNSEL.

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     New Jersey courts follow the rule formulated by the United

States Supreme Court in Strickland v. Washington, 
466 U.S. 668,

687 (1984).   To establish ineffective assistance a defendant must

identify   acts   or   omissions   showing   unreasonable   professional

judgment, and then must demonstrate that these errors had a

prejudicial effect on the conviction.         State v. Fritz, 
105 N.J.
 42, 58 (1987).     The same standards are applied to ineffective

assistance of appellate counsel claims.       State v. Harris, 
181 N.J.
 391, 518 (2004).

     In reviewing claims of ineffective assistance of counsel, we

apply a strong presumption that defense counsel "rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment."       Strickland, 
466 U.S.  at 690.

"[C]omplaints 'merely of matters of trial strategy' will not serve

to ground a constitutional claim of inadequacy of representation

by counsel." Fritz, 
105 N.J. at 54 (quoting State v. Williams, 
39 N.J. 471, 489 (1963)).       "The quality of counsel's performance

cannot be fairly assessed by focusing on a handful of issues while

ignoring the totality of counsel's performance in the context of

the State's evidence of defendant's guilt."         State v. Castagna,


187 N.J. 293, 314 (2006) (citation omitted).       "As a general rule,

strategic miscalculations or trial mistakes are insufficient to

warrant reversal 'except in those rare instances where they are

                                    3                            A-1193-16T3
of such magnitude as to thwart the fundamental guarantee of [a]

fair trial.'"    Id. at 314-15 (quoting State v. Buonadonna, 
122 N.J. 22, 42 (1991)).

     Judge Deitch reviewed in detail defendant's various claims

of his former counsel's trial errors and claims of ineffective

appellate counsel.      On appeal, defendant combined those theories

into the following categories: 1) failure to argue affirmatively

to the jury that defendant was only guilty of theft; 2) failure

to argue "afterthought theft" because defendant claims that he did

not have the intent to steal the victim's wallet until after the

assault and, therefore, defendant did not have the mens rea

required   to   prove     robbery;   3)   deficient   performance;    4)

ineffectiveness of appellate counsel; 5) cumulative errors; 6)

prejudice; and 7) other claims.1

     Judge Deitch discussed the alleged errors in light of the

State's evidence and found that had his trial counsel utilized the

strategies now advanced in hindsight by defendant, there was "no

showing of any eventuality that would have resulted in a different

result at trial."       Post-trial and post-appeal disagreement with




1
  Judge Deitch noted that during oral argument, PCR counsel
modified his position to include an argument that afterthought
theft was not charged to the jury.

                                     4                         A-1193-16T3
strategy do not constitute ineffective assistance of counsel.

Castagna, 
187 N.J. at 314-15.

       We find no error in denying defendant an evidentiary hearing,

as Judge Deitch correctly found that there was no showing of a

prima facie case of ineffective assistance of counsel because it

was clear from statements made during his opening and summation

that counsel argued that defendant was not guilty of robbery or

the underlying theft itself.     State v. Preciose, 
129 N.J. 451, 462

(1992).

       Judge Deitch determined that defendant failed to demonstrate

that    his   trial   or   appellate   counsel   was   constitutionally

defective.     He delineated his sound reasons in a careful and

thorough thirteen-page written opinion, which we adopt.

       Affirmed.




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