STATE OF NEW JERSEY v. WALTER H. WEBB
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3098-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALTER H. WEBB,
Defendant-Appellant.
______________________________
Submitted February 13, 2018 – Decided March 13, 2018
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-01-0210.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the briefs).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Roseanne Sessa,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Walter H. Webb appeals from a December 21, 2016
order, which denied his petition for post-conviction relief (PCR)
without an evidentiary hearing. We affirm.
The following facts are taken from the record. In October
2010, David Wilczek, an employee of an Outback Steakhouse (Outback)
restaurant in Secaucus, was in the back of the restaurant waiting
for a co-worker to open the door in order to begin his shift.
Defendant approached Wilczek and offered twenty-three dollars in
exchange for his car. Defendant then grabbed Wilczek's car keys
and punched him in the face. A co-worker opened the door, observed
the altercation, and then closed the door. Defendant tried to
grab the door, but fell to the ground. Wilczek grabbed his keys,
fled to the front of the restaurant, and called police.
When officers from the Secaucus Police Department arrived,
Wilczek gave them a detailed description of defendant. Within ten
minutes, police apprehended defendant nearby. Police drove
defendant back to the scene, where Wilczek identified him as the
assailant.
Defendant was tried and convicted by a jury of second-degree
robbery, contrary to
N.J.S.A. 2C:15-1. He was sentenced to a ten
year prison term 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 appeal, we affirmed defendant's conviction
and sentence. State v. Webb, No. A-0809-13 (App. Div. March 12,
2015).
2 A-3098-16T4
Subsequently, defendant filed his PCR petition. Pertinent
to this appeal, defendant argued his trial counsel was ineffective
for failing to file a motion to compel discovery, namely, a
surveillance video he claimed would have exonerated him. Defendant
argued his counsel failed to file a motion to dismiss the
indictment. He also argued his counsel was ineffective for failing
to object to prejudicial remarks by the prosecutor during
sentencing.
Judge Sheila A. Venable heard oral argument and issued a
comprehensive written opinion denying the petition.1 The judge
determined trial counsel was not ineffective for failing to obtain
a video that did not exist. The judge noted the prosecutor did
not have the video, and the manager of the Outback searched for
the recording four months after the incident, but learned it had
been erased. The judge noted that Outback only retained videos
for ten days.
Judge Venable determined counsel's decision not to file a
motion to dismiss the indictment was a matter of trial strategy
and would not have succeeded. Defendant had argued that no prima
facie case for robbery had been demonstrated because Wilczek
1
Defendant asserted additional grounds for relief in his PCR
petition, which the judge adjudicated. However, we address only
those aspects of the PCR adjudication challenged by defendant in
this appeal.
3 A-3098-16T4
claimed a co-worker who opened the door saw the incident, yet "no
effort was made to identify or produce [the co-worker] for
corroboration." Defendant sought to challenge Wilczek's
credibility as to whether a co-worker had actually witnessed the
robbery.
Judge Venable rejected this argument and stated "trial
counsel cannot be deemed to have been ineffective for failing to
locate an unnamed employee who opened the door during the
altercation, but was not alleged to have actually witnessed any
of the incident." The judge found defendant's challenge to the
indictment was "a difference of opinion with the result of the
grand jury" rather than evidence of a defective indictment. The
judge held: "There is no evidence in the record to indicate that
the indictment was manifestly deficient or palpably defective,
therefore trial counsel cannot be deemed to . . . have been
ineffective . . . for choosing to not pursue a motion under the
stringent motion to dismiss standard."
Judge Venable also rejected defendant's claim the sentencing
judge was prejudiced as a result of comments made by the prosecutor
during the sentencing hearing. Specifically, the prosecutor had
argued defendant had violated a Tennessee order of protection,
protecting his ex-wife and children, by shooting open the door to
his ex-wife's home, shooting through the house, and killing the
4 A-3098-16T4
family dog. Defendant argued his trial counsel was ineffective
because he did not object to the prosecutor's presentation, which
was factually misleading. Defendant claimed there was no order
of protection, defendant thought there was no one home when he
entered his ex-wife's residence, and he did not fire a weapon
during the incident. Thus, defendant argued the factual
inaccuracies led the trial judge to believe he had a propensity
for violence in applying the aggravating factors for sentencing.
Judge Venable rejected defendant's argument that the failure
to object to the prosecutor's comments was an ineffective
assistance of counsel. The judge found the sentencing court did
not rely on the prosecutor's remarks regarding the alleged
violation of the order of protection as a part of the sentencing.
Indeed, the judge stated:
There is no indication in the record that the
[c]ourt relied on these statements by the
prosecutor in determining the sentence. In
sentencing [p]etitioner, the [c]ourt found
aggravating factor nine, the need for
deterring defendant and others from violating
the law, and aggravating factor three, the
risk of reoffending. The [c]ourt explained
the finding of aggravating factor three based
on [p]etitioner's prior arrests and the
current sentence he was serving in Tennessee.
The [c]ourt did not make any reference to an
order of protection in its decision, therefore
[p]etitioner has failed to establish that the
fact that trial counsel did not object to the
prosecutor's statement resulted in trial
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counsel's representation falling below an
objective standard of reasonableness.
This appeal followed. Defendant makes the following
arguments:
POINT I – DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL ENTITLING HIM TO POST
CONVICTION RELIEF AND AN EVIDENTIARY HEARING.
(A) Counsel was ineffective for failing to
compel/review discovery prior to trial.
(B) Counsel was ineffective for failing to
move to dismiss the sole charge of robbery
contained in the indictment.
(C) Counsel was ineffective for failing to
move to object to prosecutor's misconduct
during the sentencing proceedings which
allowed for hearsay evidence to be considered
in imposing a sentence.
We begin by reciting our standard of review. A PCR court
need not grant an evidentiary hearing unless "a defendant has
presented a prima facie [case] in support of post-conviction
relief." State v. Marshall,
148 N.J. 89, 158 (1997) (alteration
in original) (quoting State v. Preciose,
129 N.J. 451, 462 (1992)).
"To establish such a prima facie case, the defendant must
demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits." Ibid. The court must view the
facts "in the light most favorable to defendant." Ibid. (quoting
Preciose,
129 N.J. at 462-63); accord R. 3:22-10(b). If the PCR
6 A-3098-16T4
court has not held an evidentiary hearing, we "conduct a de novo
review . . . ." State v. Harris,
181 N.J. 391, 421 (2004).
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
[Strickland v. Washington,
466 U.S. 668, 687
(1984); State v. Fritz,
105 N.J. 42, 52 (1987)
(quoting Strickland,
466 U.S. at 687).]
Counsel's performance is evaluated with extreme deference,
"requiring 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance
. . . .'" Fritz,
105 N.J. at 52 (alteration in original) (quoting
Strickland,
466 U.S. at 688-89). "To rebut that strong
presumption, a [petitioner] must establish . . . trial counsel's
actions did not equate to 'sound trial strategy.'" State v.
Castagna,
187 N.J. 293, 314 (2006) (quoting Strickland,
466 U.S.
at 689). "Mere dissatisfaction with a 'counsel's exercise of
7 A-3098-16T4
judgment' is insufficient to warrant overturning a conviction."
State v. Nash,
212 N.J. 518, 542 (2013) (quoting State v. Echols,
199 N.J. 344, 358 (2009)).
To demonstrate prejudice, "'actual ineffectiveness' . . .
must [generally] be proved[.]" Fritz,
105 N.J. at 52 (quoting
Strickland,
466 U.S. at 692-93). Defendant must show the existence
of "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Ibid. (quoting
Strickland,
466 U.S. at 694). Indeed,
[i]t is not enough for [a] defendant to show
that the errors had some conceivable effect
on the outcome of the proceeding. Virtually
every act or omission of counsel would meet
that test and not every error that conceivably
could have influenced the outcome undermines
the reliability of the result of the
proceeding.
[Strickland, 466 U.S. at 693 (citation
omitted).]
We are satisfied from our review of the record that defendant
failed to make a prima facie showing of ineffectiveness of counsel
within the Strickland-Fritz test, substantially for the reasons
stated by Judge Venable in her thoughtful written opinion.
Accordingly, the judge correctly concluded that an evidentiary
hearing was not warranted. See Preciose,
129 N.J. at 462-63. To
8 A-3098-16T4
the extent we have not specifically addressed arguments raised by
defendant, we find them without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
9 A-3098-16T4
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