PCR Motion and the Need for a hearing with testimony.

I want to file a post conviction relief motion after trial because I do not believe my attorney represented me as well as he should have.

No, in this particular case the court does not have to conduct a hearing if the petitioner, the defendant, is not able to make a prima facia showing that it can satisfy the 2 prong test by a preponderance of the evidence that counsel’s performance was deficient and that deficiency actually prejudiced the defendant.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

LAW: Standard of Review:

A PCR petitioner faces the burden to establish the grounds for relief by a preponderance of the credible evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citations omitted). To establish an ineffective-assistance-of-counsel claim, a convicted defendant must demonstrate: (1) counsel’s performance was deficient, and (2) the deficient performance actually prejudiced the accused’s defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting two-part Strickland test in New Jersey).


We first turn to defendant’s argument that trial counsel was ineffective for failing to call two witnesses who may have presented exculpatory evidence. First, he contends that trial counsel should have called the driver of the Taurus, citing to an investigation report dated March 12, 2011 from an investigator for trial counsel. According to the report, the driver told the investigator that she observed an argument and physical altercation between defendant and two Hispanic males from her car at the gas station, but defendant did not have extra items when he returned to the car and never had a firearm. Second, defendant contends that trial counsel should have called a man who was allegedly present at the gas station at the time of the robbery. In a handwritten signed statement, the man states that he was present at the gas station during the time of the alleged incident and “did not see [defendant] commit any type of robbery.” Additionally, in support of his PCR petition, defendant certified that he expected trial counsel to call the driver of the Taurus, that the driver was present every day at trial, and that he believed trial counsel would admit the cell phones as evidence at trial to prove they belonged to defendant and the driver.

We agree with the PCR court that trial counsel was not ineffective for failing to call these witnesses. In evaluating the first Strickland prong, a court presumes counsel exercised reasonable judgment in trial strategy. See Strickland, 466 U.S. at 689. “[L]ike other aspects of trial representation, a defense attorney’s decision concerning which witnesses to call to the stand is ‘an art,’ . . . and a court’s review of such a decision should be ‘highly deferential[.]‘” State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466 U.S. at 683, 689). Additionally, a PCR petitioner asserting that his trial attorney inadequately investigated a potential witness “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.” Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)).

In this case, defendant does not submit sworn affidavits from either of the potential witnesses to support that they would have testified favorably to defendant. Compare Porter, 216 N.J. at 350, 56-57 (holding that PCR petitioner was entitled to evidentiary hearing where he submitted an affidavit from a potential albi witness stating that she was with defendant at the time of the crime and had informed trial counsel that she wished to testify), with Cummings, 321 N.J. Super. 154, 171 (App. Div. 1999) (holding that PCR petitioner was not entitled to evidentiary hearing where he failed to submit affidavit from potential alibi witness). Additionally, although the driver was present during the trial,1 defendant presents no evidence that the man who was at the gas station was available and willing to testify at trial. See Arthur, 184 N.J. at 326 (“[T]here is no evidence that [potential witness] was even available to testify at the time of defendant’s trial and thus no foundation for concluding that the failure to call her constituted ineffective assistance of counsel.”).

Moreover, as noted by the PCR court, the driver’s credibility may have been suspect because she was with defendant at the time of the robbery, drove away from the scene with the defendant, and was arrested on an outstanding outside the courtroom, but was sequestered as a potential witness.

During the trial, the court noted on the record that the driver was present warrant once the police pulled over her vehicle. Considering the risks in having the driver testify, as well as the lack of support in the record that the proposed witnesses would have testified consistently with their previous statements, defendant fails to present adequate evidence to support a prima facie claim that trial counsel was ineffective or that he suffered any prejudice as a result of the failure to call these witnesses. See id. at 322 (upholding denial of PCR where “there was reasonable basis for defense counsel’s strategic decision not to call [potential witness] as a defense witness because his testimony was more likely to harm than to help defendant’s case”).

We next turn to defendant’s arguments that his attorney was ineffective by failing to file a motion in limine to preclude any testimony about the two black wool masks recovered from the Taurus, failing to request a Wade hearing to exclude Ruiz’s out-of-court identification of defendant, and failing to file a motion to dismiss the indictment because the State failed to preserve the cellphones recovered by the police. To sustain a claim that trial counsel was ineffective by failing to file a motion, a defendant must demonstrate that the motion would have been meritorious. See State v. O’Neal, 190 N.J. 601, 619 (2007) (“It is not ineffective assistance of counsel for defense counsel not to file a meritless motion.”). We agree with the sound analysis of the PCR court that none of the motions proposed by defendant would have been meritorious.3

Therefore, trial counsel was not ineffective for failing to file these motions.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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