Opinion
DOCKET NO. A-3334-10T1
07-25-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS F. DASILVA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-5524.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the briefs).
Appellant filed a pro se supplemental brief. PER CURIAM
This is an appeal from an order denying post-conviction relief (PCR) without an evidentiary hearing. Defendant argues the trial court erred in rejecting his claim of ineffective assistance of trial and appellate counsel, and, alternatively, finding his PCR petition time-barred. Defendant asserts his trial attorney was ineffective because: he failed to conduct a sufficient pre-trial investigation to enable him to impeach the State's witnesses and to support an alibi defense; he suffered from a conflict of interest; and he failed to protect defendant's right to remain silent. Defendant raises numerous additional issues in a supplemental pro se brief, in which he also asserts his PCR counsel was ineffective and failed to fulfill his obligations under Rule 3:22-6(d). We affirm.
I.
An Essex County jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; and additional weapons and theft charges, in connection with the November 4, 2002 fatal shooting and robbery of a Newark cab driver. After appropriate mergers, Judge Peter J. VAZQUEZ sentenced defendant, in an August 6, 2004 judgment of conviction, to an aggregate forty-five years, with a parole-ineligibility term of eighty-five percent pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the conviction, but remanded solely for correction of the judgment of conviction (JOC) involving the penalties imposed. State v. DaSilva, No. A-2039-06 (App. Div. July 8, 2009), and the Supreme Court denied certification on October 21, 2009. State v. DaSilva, 201 N.J. 145 (2009).
We summarized the essential facts in our previous opinion.
The charges against defendant arose out of an incident in the early morning hours of November 4, 2002, in which Felix Chininin, a twenty-year-old Newark cab driver, was shot in the head and killed, apparently during a robbery of a portable DVD player he had in his cab and the cab fare he had collected during his shift.
There were no eyewitnesses to the shooting but, shortly thereafter, a passerby who did not know Chininin saw him staggering in the street, his head bloody. The witness notified police, who responded immediately. Chininin was transported to the hospital where he died shortly thereafter. At 5:30 a.m. that morning, Chininin's cab was reported parked in a driveway in Elizabeth. A few days later, an anonymous caller to the cab company identified defendant as the shooter. The caller said she was a relative of defendant's.
Investigators ultimately identified defendant . . . . Chininin was shot with a gun identified from ballistic tests as having been stolen from a Newark police officer who lived in the same building as defendant. Defendant had sold the gun to an acquaintance after the shooting. The acquaintance was subsequently arrested and linked defendant to the gun.
When he was arrested on May 4, 2003, defendant was staying at the Belleville Motor Lodge under another person's name. He was in possession of a Brazilian passport, credit cards and social security cards, all in the names of other people. He had also
recently bleached his hair blond and was apparently preparing to flee to Brazil.
Defendant testified at trial and denied all of the allegations but did admit to sending his family to Brazil, stealing a passport and social security card, and changing his appearance.
[DaSilva, supra, (Slip op. at 2-3).]
On July 29, 2009, shortly after our decision on defendant's direct appeal, defendant apparently executed a pro se verified petition for PCR. The return receipt was signed by the court on August 3, 2009, but the petition itself was stamped received by the Criminal Division Manager on August 10, 2009. The sole basis for relief stated in the initial petition was, "[I]neffective Assistance of counsel Denied Defendant of a fair Trial[.] The convictions should be Reversed And the Matter Remanded for Retrial."
The trial court then sua sponte dismissed the petition without prejudice by order entered August 31, 2009, on the grounds that an appeal was pending.
Under Rule 3:22-3, as it existed until prior to September 1, 2009, a petition could not be filed "while such appellate review or motion is available." See Pressler, Current N.J. Court Rules (2009). As of September 1, 2009, the Rule barred filing "while such appellate review or motion is pending." Pressler, Current N.J. Court Rules (2010).
According to the trial court, defendant again filed a PCR petition on January 11, 2010. However, the record before us does not include that filing.
We note that defendant's appointed counsel's trial court brief asserted that the motion for post-conviction relief was filed January 4, 2010.
The record does include a pro se verified petition dated May 25, 2010, which asserts again defendant was denied his Sixth Amendment right to the effective assistance of trial and appellate counsel, but provides no other cognizable evidence. We surmise that an undated pro se brief included in the record was filed along with the May 2010 petition. In that pro se brief, defendant argued, without evidential support, that trial counsel failed to protect his right to remain silent; failed to present proof of an alibi; and appellate counsel failed to properly present issues to the court.
Defendant also argued, without a certification, that he was denied effective assistance of counsel because his trial attorney, Ronald S. Sampson, substituted on the eve of trial for Paul Bergrin, with whom Sampson was associated, and who had been charged with various criminal offenses. Defendant argued that he objected to Sampson's assumption of trial responsibilities, but provided no cognizable evidence of when and how he registered that objection.
He claimed Sampson was unprepared to try the case, failed to perform a pretrial investigation, "fail[ed] to challenge the denial of an alibi defense under the correct legal standard and principles of law, fail[ed] to develop a viable defense, or to subject the state's case to an adversarial testing." He asserted Sampson failed to investigate the State's witnesses, Carlos Marquinez, Alexis Tixi, Jaime Solano, Josephine Garcia and Gloria Nieves. He argued Sampson's substitution for Bergrin constituted a conflict of interest.
An amended petition prepared by counsel and dated June 9, 2010, but lacking a signed verification, simply stated, "Petitioner alleges ineffective assistance of counsel because counsel failed to adequately investigate, to present an alibi defense, to call favorable witnesses and to advise Petition[er] to remain silent." The amended petition was supported by a brief. Although our record includes only excerpts of the brief, included is the table of contents that reflects that counsel filed a forty-six-page brief, a twenty-five-page facts section, a legal argument that, aside from asserting that defendant's petition was not procedurally barred, mirrored points in defendant's pro se brief, but lacked any further evidential support. The points were:
POINT I
PETITIONER'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES IS NOT BARRED BY R. 3:22 ET SEQ.
POINT II
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PROTECT PETITIONER'S RIGHT TO REMAIN SILENT.
B. TRIAL COUNSEL FAILED TO DO ANY INVESTIGATION PRIOR TO TRIAL AND AS A RESULT FAILED TO CALL FAVORABLE WITNESSES AND INTERPOSE AN ALIBI DEFENSE.
C. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A NOTICE OF ALIBI DEFENSE AND TO USE AN ALIBI DEFENSE.
POINT III
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV
PCR COUNSEL INCORPORATES BY REFERENCE ALL ISSUES RAISED BY PETITIONER IN HIS PETITION.
The brief refers to an appendix of at least seventy-four pages long, stating, "Petitioner's motion for post-conviction relief is contained in the Appendix at DA 27-31A, 53-74." However, it is unclear what portion of that appendix is before us.
The brief also included argument apparently taken from another brief that had no relevance to defendant's case. The brief stated, "Trial counsel should have known that defendant had numerous alibi witnesses as well as a witness who would impeach the credibility of Sommer Williams, a star witness for the State. His failure to interview these witnesses deprived Petitioner of the effective assistance of counsel." As defendant asserts before us, no one named Sommer Williams testified in his case, let alone was the "star witness" for the State.
With respect to defendant's alibi claim, counsel's brief stated, "According to Petitioner, he was going to work in Maryland at the time of the incident and has numerous witnesses to prove this fact." No certification was presented to support this claim. However, counsel did append an excerpt of the trial transcript in which defendant testified that he traveled to Ocean City, Maryland during the week to perform construction work. "I would leave early Monday around 4, 5 o'clock in the morning, and I will [sic] come back on a Saturday afternoon." The same transcript, however, reflects that the homicide occurred between 2:56 and 3:30 a.m.
Judge VAZQUEZ denied defendant's petition in a written opinion. He applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel: a petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) that counsel's performance created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-89, 694-95, 104 S. Ct. 2052, 2064, 2065, 2068, 80 L. Ed. 2d 674, 693, 694, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).
Judge VAZQUEZ summarized defendant's claims.
Petitioner's claim is based on four assertions:
(1) Trial Counsel was ineffective in failing to protect Petitioner's right to remain silent;
(2) Trial Counsel was ineffective in failing to investigate prior to trial and as a result failed to call favorable witnesses and interpose an[] alibi defense;
(3) Trial Counsel was ineffective in failing to file a notice of alibi defense and to use an alibi defense; and
(4) Trial Counsel was ineffective in failing to remove himself from Petitioner's case after the lead defense attorney withdrew representation.
Judge VAZQUEZ rejected each of defendant's arguments. We quote from his opinion:
(1) Trial Counsel was ineffective in failing to protect Petitioner's right to remain silent.
. . . .
Petitioner alleges that trial counsel was ineffective for failing to protect petitioner's right to remain silen[t], arguing that he was not properly advised on his Miranda rights when taken into custody. However, this allegation is completely unsupported by the record or by any supplement to Petition's motion. Accordingly, Petitioner fails to make a prima facie showing for Post-Conviction Relief as required under the Strickland-Cronic approach.
(2) Trial Counsel was ineffective in failing to investigate prior to trial and as a result failed to call favorable witnesses and interpose an alibi defense.
. . . .
Petitioner claims that trial counsel should have known that petitioner had numerous alibi witnesses as well as a witness who would impeach the credibility of Sommer Williams, a star witness for the State's case. Petitioner concludes trial counsel's failure to interview these witnesses deprived Petitioner of the effective assistance of counsel.
However, Petitioner fails to identify these alleged favorable witnesses and has failed to specify via affidavits what said witnesses would say. Although Petitioner now alleges the existence of a host of favorable witnesses, he made no reference to such witnesses during his trial testimony. Equally, consistent with Tinsely, the record shows that defense counsel effectively cross-examined the State's witnesses, suggesting that he conducted prior investigations into each of the witnesses. In sum, there is no credible evidence suggesting [] that Petitioner told his attorney about these witnesses, prompting the attorney to investigate them.
Petitioner fails to make a prima facie showing for Post-Conviction Relief as required under the Strickland-Cronic approach.
(3) Trial Counsel was ineffective in failing to file a notice of alibi defense and to use an alibi defense.
. . . .
Petitioner argues that he was going to work in Maryland at the time of the incident and that there exists numerous corroborating witnesses. Petitioner further argues that trial counsel did not interview these witnesses, nor file a notice of alibi with the Court. Petitioner concludes that this failure denied him a right to effective assistance of counsel.
However, Petition[er] fails to present any credible evidence that he provided trial counsel with information about his alleged alibi defense. In fact, his testimony at trial is contrary to his alleged alibi and exhibits a lack of detail and information petitioner himself has about his alleged alibi.[] The Petitioner, in failing to support any aspect of his alleged alibi in affidavits, or even in disclosing so much as a last name of an alibi witness, has failed to make a prima facie showing as required under the Strickland-Cronic approach.
. . . .
(4) Trial Counsel was ineffective in failing to remove himself from Petitioner's case after the lead defense attorney withdrew representation.
Effective assistance of counsel requires that counsel's position as advocate not be compromised or impaired by
conflicting interests. State v. Bellucci, 81 N.J. 531, 538-539 (1980) . . . .
Petitioner alleges that trial counsel should have withdrawn because the lead counsel before him withdrew. This substitution raises an issue of successive counsel, which would be governed by the flexible standard of [State v. ]Bell[, 90 N.J. 163 (1982)]. Under Bell, a petitioner must show both a significant likelihood of prejudice and an actual or potential conflict of interest. Bell, 90 N.J. at 171. However, Petitioner presents no additional evidence that trial counsel was ineffective for failing to withdraw or that this inaction created a significant likelihood of prejudice under Bell. Petitioner fails to make a prima facie showing for Post-Conviction Relief as required under the Strickland-Cronic approach.
Judge VAZQUEZ also found that defendant's claim of ineffective assistance of appellate counsel lacked merit, as defendant had failed to demonstrate that had appellate counsel raised the issues now raised in his petition, the result would have differed. Judge VAZQUEZ held that defendant's petition was time-barred by utilizing the January 2010 filing date, which was filed more than five years after entry of the judgment of conviction. However, he wrote, "despite this bar, Petitioner's motion is decided on the above discussed merits . . . ."
On appeal, defendant presents the following points:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
1. Defendant's petition was not time barred.
2. Defendant established at least prima facie evidence of ineffective assistance of counsel.
3. At the very least, defendant's ineffective assistance claims warranted an evidentiary hearing in the court below.
After he filed his notice of appeal, defendant filed two discovery motions in April and May 2011 before Judge VAZQUEZ, seeking logs of the communications of the police officers involved in the homicide investigation, as well as telephone, cell phone, or pager records of the victim, the cab company, two witnesses who testified against defendant, and defendant himself. He asserted this information would assist him in establishing that others had communicated with, and killed the victim. Judge VAZQUEZ denied the motion without prejudice pursuant to Rule 2:9-1(a).
In a supplemental pro se brief filed in November 2011, defendant presents the following additional points:
POINT I
PRETRIAL, TRIAL, APPELLATE AND PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, WHICH DEPRIVED THE DEFENDANT OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE U.S. CONST. AMEND. VI, AND THE N.J. CONST. ART. I, PAR. 10. (Partially Raised Below).
POINT II
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL BECAUSE COUNSEL ARGUED AN ISSUE FROM AN UNRELATED CASE IN DEFENDANT'S BRIEF, IN VIOLATION OF U.S. CONST. AMEND. VI. (Not Raised Below).
POINT III
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE PCR COUNSEL FAILED TO OBTAIN AFFIDAVITS FROM DEFENDANT'S ALIBI WITNESSES TO ESTABLISH A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN VIOLATION OF THE U.S. CONST. AMEND. VI. (Not Raised Below).
POINT IV
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL OF CHOICE DUE TO THE UNEXPLAINED WITHDRAWAL OF HIS RETAINED ATTORNEY AND THE SUBSTITUTION OF AN ASSOCIATE ATTORNEY WITHOUT DEFENDANT'S WRITTEN CONSENT, IN VIOLATION OF THE U.S. CONST. AMEND. VI AND N.J. COURT RULE 1:11-2. (Not Raised Below).
POINT V
THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO BE PRESENT AT EVERY CRITICAL STAGE OF HIS DEFENSE AND DEPRIVED OF CRITICAL INFORMATION NECESSARY TO MAKE A KNOWING, INTELLIGENT AND VOLUNTARY DECISION TO PERMIT SUBSTITUTION OF COUNSEL, IN VIOLATION OF THE U.S. CONST. AMENDS. IV, XIV. (Partially Raised Below).
POINT VI
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND PCR COUNSEL FOR THEIR FAILURE TO OBJECT OR RAISE THE ISSUE OF A STATE'S WITNESS TESTIFYING AT TRIAL WITHOUT TAKING AN OATH OR AFFIRMATION,
IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV. (Not Raised Below).
POINT VII
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND PCR COUNSEL FOR THEIR FAILURE TO PROPERLY OBJECT OR ADVANCE THE DEFENDANT'S RIGHT TO CONFRONT THE STATE'S WITNESSES ABOUT THEIR OTHER CRIMES OR BAD ACTS, IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV. (Not Raised Below).
POINT VIII
IN HIS SUMMATION, THE PROSECUTOR IMPLIED THAT ONCE A CRIMINAL DEFENDANT CHOOSES TO TAKE THE WITNESS STAND AND TESTIFY, HE THEN HAS THE BURDEN TO PRODUCE EVIDENCE TO ESTABLISH HIS INNOCENCE. THEREAFTER, NO CURATIVE INSTRUCTION WAS GIVEN AND THE FINAL JURY CHARGE FAILED TO INSTRUCT THE JURY THAT THE BURDEN OF PROOF NEVER SHIFTS TO THE DEFENDANT, NOR DOES THE DEFENDANT HAVE AN OBLIGATION TO PROVE HIS INNOCENCE OR OFFER ANY PROOF OF HIS INNOCENCE. THESE ERRORS VIOLATED DEFENDANT'S PRESUMPTION OF INNOCENCE, THE DUE PROCESS CLAUSE, AND HIS RIGHT TO A FAIR TRIAL, AS GUARANTEED BY U.S. CONST. AMENDS. V, XIV. (Not Raised Below).
POINT IX
THE TRIAL COURT MADE NUMEROUS ERRORS, OMISSIONS, AND ABBREVIATIONS TO THE FINAL JURY CHARGE, WHICH DEPRIVED THE DEFENDANT OF A PROPERLY INSTRUCTED JURY AND A FAIR TRIAL, IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV. (Not Raised Below).
POINT X
THE TRIAL COURT FAILED TO POLL THE JURY AT THE BEGINNING OF EACH DAY OF TRIAL REGARDING EXPOSURE TO OUTSIDE INFLUENCES (MEDIA AND PERSONAL CONTACTS) AND FAILED TO INSTRUCT
THE JURY TO AVOID OUTSIDE INFLUENCES AT THE END OF EACH DAY OF TRIAL. (Not Raised Below).
POINT XI
PRETRIAL COUNSEL FAILED TO FILE PRETRIAL MOTIONS TO SUPPRESS OR SANITIZE PREJUDICIAL TESTIMONY BY THE ARRRESTING OFFICERS AND N.J.R.E. 404(b) EVIDENCE SEIZED PURSUANT TO THE DEFENDANT'S ARREST. EVIDENCE THAT WAS SEIZED OVER SIX MONTHS AFTER THE INSTANT OFFENSE, WAS UNRELATED TO THE INSTANT OFFENSE WAS IMPROPERLY ADVANCED BY THE STATE TO PROVE "FLIGHT." THEREFORE, THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL. ADDITIONALLY, APPELLATE AND PCR COUNSEL WERE INEFFECTIVE FOR FAILING TO ADVANCE THIS CLAIM. (Not Raised Below).
POINT XII
PRETRIAL AND TRIAL COUNSEL WERE INEFFECTIVE FOR FAILING TO FILE MOTIONS TO COMPEL THE STATE TO PROVIDE CALL LOG EVIDENCE FOR OTHER PHONE AND BEEPER NUMBERS RELATED TO THIS CASE, AS WELL AS THE CALL OUT LOGS FOR POLICE AND OTHER EMERGENCY RESPONDERS, TO REFUTE THE VERACITY OF THE STATE'S STAR WITNESSES AGAINST THIS DEFENDANT. (Not Raised Below).
Defendant attached to his supplemental brief a September 14, 2011 certification, setting forth that he was unaware of Bergrin's legal problems, had he known about them he would have sought different representation, and he did not approve of Sampson's entry into the case.
II.
We affirm denial of the petition substantially for the reasons explained by Judge VAZQUEZ in his written opinion on the merits of defendant's claims. As Judge VAZQUEZ correctly observed, defendant's petition was grounded in conclusory allegations that he was prejudiced by his attorney's alleged failure to investigate, to develop an alibi defense, to protect his right against self-incrimination, and to be free from a conflict of interest.
Although Judge Vasquez did not rely on his conclusion that defendant's refiled petition was untimely, we note that if defendant did refile his petition in January 2010, as Judge Vasquez observed (although the record before us does not confirm that), then the petition would have been timely, as it was refiled within ninety days of the Supreme Court's denial on October 21, 2009 of defendant's petition for certification. See R. 3:22-12 ("A petition dismissed without prejudice pursuant to R. 3:22-6A(2) because a direct appeal, including a petition for certification, is pending, shall be treated as a first petition for purposes of these rules if refiled within 90 days of the date of the judgment on direct appeal, including consideration of a petition for certification . . . .").
The verified petition and supplemental petition presented to the trial court lacked factual support. "The petition shall be verified by defendant and shall set forth with specificity the facts upon which the claim for relief is based[.]" R. 3:22-8. "[B]ald assertions" are not sufficient to establish a prima facie case of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). In particular, "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
We do not reach the merits of the numerous points presented in defendant's supplemental pro se brief that were not raised below. See State v. Robinson, 200 N.J. 1, 20-21 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding that appellate courts will decline to consider issues not properly presented to the trial court when an opportunity for such a representation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest") (internal quotation marks and citations omitted).
However, we do briefly address defendant's assertion that his PCR counsel failed to fulfill his obligations under Rule 3:22-6(d), which requires appointed counsel to consult with his or her client, and to independently investigate defendant's claims. See State v. Hicks, 411 N.J. Super. 370, 375-77 (App. Div. 2010). As an alternative to reversing the trial court's denial of his petition, defendant seeks a remand for the appointment of new PCR counsel and a new proceeding.
We held in Hicks, "PCR trial counsel must communicate with his client and investigate the claims and then must fashion the most effective arguments possible." Id. at 375 (internal quotations and citations omitted). We determined in that case the defendant had failed to receive the benefits of the attorney's expertise, because the attorney limited his performance to re-presenting the arguments the defendant included in his own pro se petition; there was no evidence he conducted an independent evaluation of defendant's case to determine whether there were other grounds to attack defendant's conviction; and there were indications PCR counsel had not even reviewed the file, based on comments to the court in oral argument that betrayed ignorance of the essential facts of the underlying case. Id. at 374. We remanded for a new PCR proceeding.
The remedy for counsel's failure to meet the requirements imposed by Rule 3:22-6(d) is a new PCR proceeding. This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding.
[Id. at 376 (internal citations omitted).]
Defendant argues his PCR counsel likewise failed to meet the requirements imposed by Rule 3:22-6(d), by failing to obtain affidavits from defendant's claimed alibi witnesses, which subjected his petition to denial for lack of evidential support. He argues PCR counsel should have raised the numerous points defendant has raised in his supplemental brief. As evidence of his PCR counsel's alleged lack of diligence, he cites the reference in counsel's brief to a "star witness" who did not appear in his case.
Unlike in Hicks, where it was apparent that PCR counsel had failed to meet his obligations, we cannot conclude on the record before us that PCR counsel failed to discharge his responsibilities under Rule 3:22-6(d), and that a remand for a new hearing is required. It is unclear whether the lack of proof before the trial court was the result of PCR counsel's failure to engage in a reasonable investigation and effort, or the failure of defendant to provide any facts upon which to base an investigation. Defendant has not provided a certification describing the nature of his interactions with PCR counsel, whether counsel met with him to discuss the case, and the information and suggestions defendant provided to him. We note the record still lacks any cognizable evidence identifying, or even describing generally, the alibi witnesses whom, defendant claims, PCR counsel failed to investigate. Defendant alleges that PCR counsel failed to argue that he was denied his constitutional right to counsel of choice when Sampson was substituted for Bergrin. Cf. State v. Kates, 42 6 N.J. Super. 32 (App. Div. 2012) (discussing deprivation of right of counsel of choice). But, defendant provides no evidence that he objected to the substitution on the record, and sought a continuance to hire new counsel.
As the record on appeal does not include a copy of the trial transcript, we cannot search the trial record to determine whether an objection was made.
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Any claim that PCR counsel failed to satisfy his obligations under Rule 3:22-6(d), entitling defendant to new counsel and a new proceeding, should in this case initially be presented to the trial court. We express no opinion on the merits of such an application. As we stated in Hicks, however, the issue whether PCR counsel has met the obligations under Rule 3:22-6(d) is distinct from a claim of ineffective assistance of counsel under Strickland. Hicks, supra, 411 N.J. Super. at 376.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION