NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5419-06T45419-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

LLOYD W. HATCHER, JR.,

Defendant-Appellant.

__________________________________

Submitted: May 21, 2008 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 98-06-0244.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Lloyd W. Hatcher, Jr., appeals from the denial of his petition for post-conviction relief. An evidentiary hearing was not conducted. Defendant is serving a life term with a twenty-five year period of parole ineligibility following his conviction of first degree aggravated sexual assault, third degree criminal restraint and second degree burglary. On direct appeal, the conviction was affirmed, but "[w]hile we ha[d] serious doubts about Hatcher's ineffective assistance of counsel claim, . . . we decline[d] to decide the issue at this time." State v. Hatcher, No. A-2137-99T4 (App. Div. Sept. 27, 2002) (slip op. at 3), certif. denied, 176 N.J. 73 (2003).

In his petition, defendant asserts that trial counsel did not provide effective assistance in his defense. He alleges that trial counsel failed to meet with him prior to trial, failed to conduct an investigation of potential state witnesses as to bias or ability to observe, failed to review photographs, failed to cross-examine a witness as to her prior convictions or drug use, failed to interview or call an expert witness, failed to interview or call a police officer as a witness at trial, failed to file a motion to suppress evidence, allowed the introduction of false or perjured testimony at trial, and failed to object to conduct by the prosecutor at trial. The trial judge dismissed the petition. She found that defendant presented no more than a list of omissions by trial counsel. Accordingly, he failed to raise a prima facie case that any omission or combination of omissions caused prejudice to defendant. The judge also found that the specific act of prosecutorial misconduct asserted by defendant, turning off the lights during trial to simulate what the victim could see with duct tape applied to her eyes, "was not something highly prejudicial." She conceded it was a "dramatic way" of depicting the victim's situation but did not cause prejudice to defendant.

On appeal, defendant raises the following arguments:

POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVE ASSISTANCE OF COUNSEL

POINT II - THE PROSECUTION'S MISCONDUCT CONSTITUTED REVERSIBLE ERROR.

In a pro se supplemental brief, defendant reiterates the ineffective assistance of counsel and prosecutorial misconduct arguments presented by assigned counsel.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed.2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed.2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I,