NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0657-06T40657-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY DUTCH,

Defendant-Appellant.

________________________________

Submitted: January 9, 2008 - Decided:

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-10-3342.

Yvonne Smith Segars, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief).

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Rodney Dutch appeals from the July 17, 2006 order denying his petition for post-conviction relief (PCR), in which he alleged ineffective assistance of trial and PCR counsel and sentencing errors, and he sought dismissal of the indictment and reversal of his conviction due to the prosecutor's failure to present DNA evidence to the grand jury. We affirm.

Following a jury trial, defendant was convicted of second-degree burglary, second-degree aggravated assault, first-degree robbery, third-degree possession of a weapon for an unlawful purpose, third-degree theft, fourth-degree forgery, and third-degree fraudulent use of a credit card. The State presented evidence that on August 22, 1998, defendant, seeking money, attacked seventy-five-year-old Leslie Edwards with a hammer while Edwards was putting his car in the garage, causing two depressed skull fractures, external scalp wounds, and a fracture of the left fifth finger. Additionally, Edwards' left ear was partially torn off in the attack. Defendant then stole Edwards' wallet and, in the period between August 22 and 24, repeatedly utilized Edwards' PNC bank card for small purchases. The police linked defendant with the crime when he used Edwards' bank card to purchase gasoline and the attendant recorded the license plate of a car they eventually traced to defendant. Defendant was also identified by an employee of the Virginia Department of Motor Vehicles who had processed the change in registration of the car defendant was using at the time of the crime. Following his arrest, police found blood belonging to Edwards on defendant's boot.

After trial, the court imposed a mandatory extended term of incarceration on the robbery charge of life with twenty-five years of parole ineligibility, a consecutive term on the aggravated assault charge of ten years with eighty-five percent parole ineligibility, and a consecutive term on the fraudulent use of a credit card charge of five years with two years of parole ineligibility. Defendant was either sentenced to concurrent terms on the remaining convictions or they were merged and dismissed. On appeal, we affirmed defendant's conviction and most of his sentence; however, we required merger of the aggravated assault conviction with the armed robbery conviction, resulting in an overall reduction of his sentence by ten years. State v. Dutch, No. A-1981-01T4 (App. Div. April 30, 2003). The Supreme Court denied defendant's petition for certification on September 8, 2003. State v. Dutch, 177 N.J. 573 (2003).

This PCR petition ensued. Following oral argument on June 30, 2006, Judge John McNeill denied defendant's petition without an evidentiary hearing, which determination was memorialized in a July 17, 2006 order. Defendant had filed a supplemental pro se brief on December 21, 2005, alleging ineffective assistance of trial counsel at the time of sentencing for failing to "object[] to and challenge[] the trial judge's finding of the Extended Term and the Aggravated Factors by the preponderance of the evidence that was not submitted to the Grand Jury and returned in the Indictment, nor found by the Jury at trial and proven beyond a reasonable doubt[.]" He also contended he was "denied his state and federal constitutional rights to receive effective assistance of counsel . . . and his right to trial by jury . . . based upon the fact[] [that DNA evidence, which was an element of the crime], [was] not submitted to the grand jury and returned in the indictment, nor found by the jury at trial and proven beyond a reasonable doubt." In a forwarding letter defendant sent with that brief, he expressly directed the court to "disregard any other supplemental brief that may come to you from my attorney Mr. Brian Muhlbaier, Esq." On June 5, 2006, defendant filed an addendum to his supplemental brief, reiterating his constitutional challenges to the sentence.

At oral argument PCR counsel explained why he did not prepare his own submission to supplement defendant's brief, reminding the court that defendant "filed pro se in this matter and has directed on numerous occasions that his brief be the brief that is argued to the Court" and has "also written several letters [indicating] that is his position." He succinctly summarized the arguments in defendant's brief and referred the court to the law cited by defendant. Defendant's claims were rejected by the trial court. Judge McNeill found no deficiencies in the extended-term sentence imposed in 2001, which we affirmed in 2003 with the exception of requiring two of the counts to merge. He also found that any error in the indictment had no effect on the outcome of the trial, as the case law holds that a guilty verdict after a trial free from reversible error renders harmless any error in the indictment. The judge concluded that defendant failed to establish by prima facie evidence either prong of the standard for ineffective assistance of counsel required under the case law.

On July 19, 2006, defendant filed a pro se motion for reconsideration, reiterating his prior arguments and arguing, for the first time, that "counsel failed to investigate" and appellate counsel failed to bring the lack of trial counsel's investigation to the attention of the court, which merited an evidentiary hearing. By order of July 27, 2006, the judge denied defendant's motion. This appeal ensued.

Defendant raises the same issues on appeal, but additionally argues he was denied effective assistance of PCR counsel who "did not file a brief on behalf of his client, or comply in any other way with the Supreme Court's mandate that counsel representing a post-conviction relief petitioner provide him with meaningful representation."

We consider defendant's claims in light of well-settled principles. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed.2d 657 (1984); State v. Allah, 170 N.J. 269, 283 (2002). Our evaluation is governed by the test that the United States Supreme Court established:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Our Supreme Court subsequently adopted the Strickland standard in interpreting the right to the effective assistance of counsel under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 52-58 (1987). In order to claim ineffective assistance of counsel, defendant must establish that counsel's performance was "so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction[.]" Id. at 58.

Under the first prong, when we evaluate the reasonableness of counsel's alleged conduct, we must apply an objective standard. Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We judge counsel's conduct on the facts of the particular case, viewed at the time of the challenged conduct. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Ibid. In our analysis, we acknowledge the strong presumption that counsel "made all significant decisions in the exercise of reasonable professional judgment." Ibid.

In order to establish the second prong of prejudice, a defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, "[t]he error committed must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid. "An error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. When determining whether specified errors prejudiced the defendant, we presume that the judge or jury acted according to law. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We recognize that a claim of ineffective assistance of counsel based on facts outside the record must ordinarily be tested by way of an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002). Nevertheless, it is also clear that in order to qualify for an evidentiary hearing, a defendant must present a prima facie case of remediable ineffectiveness. State v. Marshall, 148 N.J. 89, 158 (1997); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test. Hence an evidentiary hearing was not warranted. In State v. Rue, 175 N.J. 1, 18 (2002), the Supreme Court noted that PCR counsel is required to communicate with his or her client, investigate the claims, and then "'fashion the most effective arguments possible.'" (quoting State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000)). In State v. Webster, 187 N.J. 254, 257 (2006), the Court required that "counsel should advance all of the legitimate arguments that the record will support [and] [i]f after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point." Contrary to defendant's portrayal of his PCR proceedings, PCR counsel did not file a brief because defendant specifically instructed him not to do so. Defendant clearly conveyed to the court his desire that only his own pro se submissions be considered. Under those circumstances, PCR counsel ably represented defendant by highlighting defendant's arguments and citing the court to defendant's submissions.

Moreover, the trial court correctly concluded that grand jury errors are rendered harmless in the event of a guilty verdict in a subsequent trial resulting from the indictment. State v. Lee, 211 N.J. Super. 590, 599 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987); see also United State v. Mechanik, 475 U.S. 66, 69-72, 106 S. Ct. 938, 941-44, 89 L. Ed.2d 50, 55-58 (1986). The court also properly concluded that defendant's claims of ineffective assistance of trial counsel had "no merit whatsoever under the existing law." We note that trial counsel argued against imposition of an extended sentence and challenged the extended term on direct appeal, to no avail, as defendant was subject to a mandatory extended sentence under N.J.S.A. 2C:43-7.1b(2) resulting from his three prior convictions for second-degree robbery and this conviction for first-degree robbery. In addition, as defendant's direct appeal concluded with a denial of certification by the Supreme Court on September 8, 2003, and he did not raise his Blakely or Apprendi claims at trial or on direct appeal, this is not a "pipeline" case and these constitutional challenges are not cognizable now on post-conviction review. State v. Natale, 184 N.J. 458, 493-94 (2005).

Affirmed.

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 4348, 147 L. Ed.2d 435 (2000).

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A-0657-06T4

January 25, 2008