Opinion
DOCKET NO. A-2777-12T1
09-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL WEAVER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0628. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael Weaver appeals from the September 28, 2012 Law Division order denying his petition for post-conviction relief (PCR). Because the issues defendant raises have already been conclusively determined adversely to him in a prior appeal, we affirm. R. 3:22-5; State v. Marshall, 173 N.J. 343, 350-53 (2002) (holding that Rule 3:22-5 bars PCR claims which are either identical or "substantially equivalent" to those previously adjudicated on direct appeal or in a prior PCR petition); State v. McQuaid, 147 N.J. 464, 484 (1997).
We need not repeat at length the salient facts, which are detailed in our unpublished opinion affirming defendant's convictions for second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree possession of weapons under circumstances not manifestly appropriate for such lawful uses as they may have, N.J.S.A. 2C:39-5d; and, third-degree possession of weapons with a purpose to use such weapons unlawfully against the person or the property of another, N.J.S.A. 2C:39-4d. State v. Weaver, No. A-5542-05 (App. Div. Feb. 25, 2009) (slip op. at 1-2), certif. denied, 200 N.J. 209 (2009).
In September 2004, defendant and two other individuals confronted D.N., a Newark Housing Authority repairman. Defendant proceeded to strike D.N. in the face with a brick, forcing him to the ground, and a second individual beat D.N. with a pipe. At trial, defendant did not testify nor did he call any witnesses on his own behalf. The trial court sentenced defendant to an aggregate sentence of ten years' imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal challenging his conviction and sentence, and raised the following issues:
POINT I
BECAUSE THE STATE FAILED TO PROVE THE CHARGE OF CONSPIRACY BEYOND A REASONABLE DOUBT, THE TRIAL [COURT] ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. (U.S. CONST., Amend. XIV; N.J. CONST. ART. I, PARS. 1, 9, 10).
POINT II
THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ¶10. (Not Raised Below.)
POINT III
THE TRIAL [COURT'S] CHARGE ON ACCOMPLICE LIABILITY WAS INCORRECT IN THAT IT DID NOT EXPLAIN THE PRINCIPLES OF STATE V. BIELKEWICZ, [267 N.J. Super. 520 (App. Div. 1993)] PROPERLY AND WAS THEREFORE INSUFFICIENTLY TAILORED TO THE FACTS OF THE CASE, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below.)
POINT IV
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
[Weaver, supra, slip op. at 14-15.]
We rejected these arguments, and affirmed defendant's conviction and sentence. Weaver, supra, slip op. at 2. The Supreme Court denied certification, Weaver, supra, 200 N.J. 209. Defendant then filed the PCR petition under review. Following oral argument, Judge Michael A. Petrolle denied the petition without an evidentiary hearing.
Defendant raises the following issues on this appeal:
Point I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S CHARGE TO THE JURY REGARDING ACCOMPLICE LIABILITY.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S SUMMATION, WHICH EXCEEDED THE BOUNDS OF PROPRIETY.
Based on our review of the record and the applicable law, we conclude these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Petrolle in his thorough written opinion. We add the following comments.
In order to establish a prima facie case of ineffective assistance of counsel, a defendant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must then show that counsel's deficient performance prejudiced the defense. Ibid. To show prejudice, the defendant must establish by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.
Rule 3:22-5 provides a "prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any postconviction proceeding . . . ." Thus, the application of this standard requires the "[p]reclusion of consideration of an argument presented in post-conviction relief proceedings . . . if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." Marshall, supra, 173 N.J. at 351 (citations and internal quotation marks omitted); see also McQuaid, supra, 147 N.J. at 484.
Defendant's assertions of ineffective assistance of counsel are an attempt to re-litigate his arguments raised on direct appeal averring incorrect jury instructions and improper prosecutorial comments during summation. These issues have already been fully addressed on direct appeal and adjudicated adversely to defendant.
On defendant's direct appeal, we determined the jury instruction error was harmless and did not produce a substantially unjust result. Weaver, supra, slip op. at 20. We likewise fully addressed defendant's claim that the prosecutor's summation included improper argument, and held it did not deny him a fair trial. Id. at 14.
Those claims are substantially equivalent to the claims asserted in this appeal. PCR is not another avenue for a defendant to submit the same arguments asserted on direct appeal. See McQuaid, supra, 147 N.J. at 484. Defendant's assertions of ineffective counsel are barred by Rule 3:22-5.
Defendant further contends the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Porter, 216 N.J. 343 (2013) (citing State v. Preciose, 129 N.J. 451, 462 (1992)); R. 3:22-10(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION