STATE OF NEW JERSEY v. MARVIN DAMON
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3105-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN DAMON, a/k/a MARVIN
T. DAMON,
Defendant-Appellant.
_________________________________
Submitted February 13, 2018 – Decided March 6, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
11-01-0160.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Nancy P. Scharff,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Marvin Damon appeals from a December 21, 2016 Law
Division order denying his petition for post-conviction relief
(PCR). For the reasons that follow, we affirm.
I
The facts surrounding defendant's offenses are set forth in
our opinion on direct appeal. See State v. Damon, No. A-0486-12
(App. Div. Dec. 17, 2014) (slip op. at 2-4), certif. denied,
221 N.J. 287 (2015). The following summary gives context to
defendant's arguments regarding this appeal from the order denying
PCR.
On July 31, 2010, G.H. was riding his bike on the sidewalk
near an intersection, when defendant struck him with a gun,
knocking him onto the ground. G.H. testified defendant "had
this . . . big gun in his hand and he swung it at me and I fell
and then he jumped over top of me and told me to give him
everything . . . ." G.H. pushed defendant away, stood up, and
began backing into the street, hoping to attract the attention of
passing motorists, while defendant pointed a gun directly at him.
As this occurred, a Pennsauken Township Police Department
patrol officer approached the intersection in a patrol car. The
officer saw defendant attempting to hide the gun in his pants.
Defendant fled, and the officer gave pursuit.
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The patrolman lost sight of defendant for a short time, but
then saw him run across the street and hide between parked cars.
Defendant was unarmed when police ultimately apprehended him. The
following day, police recovered a revolver with a distinctive
appearance near the location where they apprehended defendant.
At trial, defendant maintained his innocence. He presented
an alibi witness who testified he was with defendant during the
incident, and never saw defendant with a gun.
A jury found defendant guilty of first-degree armed robbery,
N.J.S.A. 2C:15-1(a)(1), and fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(4). At sentencing, the trial judge granted
the State's motion to impose an extended term pursuant to
N.J.S.A.
2C:44-3. The judge sentenced defendant to twenty-five years in
prison with an eighty-five percent parole ineligibility on the
first-degree armed robbery charge, and a concurrent eighteen
months, with eighteen months parole ineligibility, on the fourth-
degree aggravated assault charge.
Defendant appealed, and we affirmed defendant's conviction
and sentence. Damon, slip op. at 19. In that opinion, we declined
to address defendant's ineffective assistance of counsel claims,
noting "we routinely decline to entertain ineffective assistance
of counsel claims on direct appeal because those claims 'involve
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allegations and evidence that lie outside the trial record.'" Id.
at 15 (quoting State v. Hess,
207 N.J. 123, 145 (2011)).
On June 30, 2015, defendant filed a pro se PCR petition
alleging he had been denied effective assistance of counsel;
appointed PCR counsel later filed a supporting brief, which the
State opposed. On December 21, 2016, the PCR judge heard oral
argument, and denied defendant's petition in an oral opinion on
the same date. The judge found defendant merely presented "blanket
allegations . . . not supported by anything in the record,
or . . . by any exhibits either." Accordingly, she found
defendant failed to present a prima facie showing of ineffective
assistance of counsel, and denied his PCR petition.
II
On this appeal, defendant's brief presents the following
points of argument:
THE TRIAL COURT ERRED IN DENYING RELIEF
WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY
HEARING[.]
A. The Jury Instruction on Second Degree
Robbery
B. Ineffective Assistance of Appellate
Counsel
C. Failure to Investigate
Restated, defendant argues: (1) trial counsel was ineffective
because he did not request a charge on the lesser-included offense
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of second-degree robbery; (2) appellate counsel was ineffective
for failing to address the lesser-included offense issue; and (3)
trial counsel was ineffective for failing to investigate.
Defendant also submitted a pro se brief, which presented two
additional points of argument:
Point One
Defendant's Constitutional Rights [were]
violated when [the] [T]rial Court failed to
conduct a fair and impartial trial for
Defendant.
Point Two
Trial Counsel admitted on brief for [Judgment]
of acquit[t]al that he himself was ineffective
in representing Defendant at trial.
We review the PCR judge's findings de novo because she did
not hold an evidentiary hearing on defendant's claims. See State
v. O'Donnell,
435 N.J. Super. 351, 373 (App. Div. 2014) (citing
State v. Harris,
181 N.J. 391, 421 (2004) (denying PCR)).
Ineffective assistance of counsel claims are considered under the
two-prong test enunciated in Strickland v. Washington,
466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz,
105 N.J. 42, 58 (1987). The Strickland test requires a defendant
to show that the performance of his or her attorney was deficient,
and counsel's deficient performance prejudiced the defense.
466 U.S. at 687.
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To meet the first prong of the Strickland test, a defendant
must establish that his or her attorney "made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Ibid. The defendant must
rebut the "strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance . . . ." Id.
at 689.
Moreover, to satisfy the second prong of the Strickland test,
a defendant must show "that counsel's errors were so serious as
to deprive [him or her] of a fair trial, a trial whose result is
reliable." Id. at 687. A defendant must establish that there is
"a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 694.
We have considered defendants contentions in light of the
record and the applicable legal principals. We conclude
defendant's arguments lack merit.
Defendant's argument that his trial counsel provided
ineffective assistance in failing to advocate and request a jury
charge for second-degree robbery finds no support in the record.
Trial counsel considered requesting such a charge, but ultimately
decided against it. As the PCR judge noted, it was the trial
attorney's "position that the State put forth evidence only to
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support first-degree robbery." She determined the evidence,
including trial counsel's cross-examinations and "presentation of
an alibi witness" demonstrated defendant's trial counsel pursued
an "all or nothing position"; to wit: "[e]ither [the jury] find[s]
that [defendant] was guilty of a [first-degree] robbery when the
facts presented by the State supported a [first-degree] robbery
only, or [the jury] find[s] [defendant] guilty of none of the
charges."
Notably, the trial judge ultimately charged the jury on
second-degree robbery. Therefore, defendant cannot demonstrate
the trial's results would have been different had trial counsel
pursued the second-degree robbery charge. Accordingly, the PCR
judge appropriately held defendant failed to meet the first and
second Strickland prongs.
Furthermore, defendant's arguments against appellate counsel
fail for the same reasons. Appellate counsel cannot be faulted
for failing to pursue the lesser-included offense issue when
defendant can neither refute that trial counsel's actions were the
result of strategy nor establish that he was prejudiced.
Moreover, this court declined to address defendant's ineffective
assistance of counsel arguments on direct appeal. Damon, slip op.
at 15-16.
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Finally, defendant's contention that his trial counsel failed
to properly investigate also lacks merit. We acknowledge that
"counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary." State v. Savage,
120 N.J. 594, 618 (1990) (internal
quotation marks and citation omitted). To demonstrate failure to
investigate, a defendant "must assert the facts that an
investigation would have revealed, supported by affidavits or
certifications based upon personal knowledge of the affiant or the
person making the certification." State v. Cummings,
321 N.J.
Super. 154, 170 (App. Div. 1999).
Here, defendant fails to present any evidence to support his
allegation. Instead, he asserts "the extent of counsel's
investigation is unclear . . . because proof as to what a non-
existent investigation may have unearthed is beyond the capacity
of any defendant . . . ." This bald allegation provides no basis
for relief.
Moreover, defendant's trial counsel presented an alibi
witness who claimed he and defendant were together on a porch
during the robbery. The PCR judge found "counsel certainly would
not have known that this individual was allegedly
with . . . defendant at the time of this incident unless there was
some communication with defense counsel." Accordingly, the PCR
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judge did not err in finding defendant presented merely "blanket
allegations" that did not support his contentions.
The arguments defendant raises in his pro se brief also lack
merit. The first argument should have been raised on direct appeal
and is not appropriate for PCR. See State v. Reevey,
417 N.J.
Super. 134, 148 (App. Div. 2010) (citing R. 3:22-4) ("Issues that
could and should have been raised on direct appeal from the
defendant's conviction are barred by Rule 3:22-4(a) unless the
exceptions to the Rule have been established."). The second
argument lacks support in the record.
The PCR judge correctly found defendant failed to establish
a prima facie showing of ineffective assistance of both trial and
appellate counsel. We discern no basis to disturb the order under
review.
Affirmed.
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