STATE v. WILCOX

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Raheem Wilcox appeals from the January 24, 2014 Law Division order denying his second petition for post-conviction relief (PCR), and the court's March 12, 2014 order denying his motion for reconsideration. We affirm.

A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). On July 5, 2002, the trial judge1 merged counts two and three into count one, and sentenced defendant to forty years in prison, subject to thirty years of parole ineligibility. On direct appeal, we affirmed defendant's conviction and sentence. State v. Wilcox (Wilcox I), No. A-6787-01 (App. Div. October 10, 2003), certif. denied, 185 N.J. 389 (2005).

On April 17, 2006, defendant filed his first petition for PCR. Defendant's PCR attorney presented seventeen points of alleged ineffective assistance of counsel, including a claim of juror misconduct at the conclusion of the trial. State v. Wilcox (Wilcox II), No. A-1188-10 (App. Div. July 20, 2012) (slip op. at 3), certif. denied, 213 N.J. 46 (2013). The judge found that sixteen of PCR counsel's arguments lacked merit, but conducted a plenary hearing on the issue of alleged juror misconduct. Ibid.

At the hearing, defendant's witness alleged that when the jury returned to the courtroom to render its verdict, one of the jurors "nodd[ed] his head and patt[ed] his chest" as he made eye contact with the victim's family.2 Id. at 4. Defendant asserted that his trial counsel was ineffective by failing to bring the juror's conduct to the attention of the court. Id. at 6. The judge disagreed, concluding that it was "`mere speculation' that [the juror] was attempting to communicate anything to anyone by virtue of patting his chest while looking at one side of the courtroom." Id. at 5.

Defendant appealed to this court, and his appellate counsel raised five arguments on his behalf, including the issue of alleged juror misconduct.3 Id. at 6. In Point V of his brief, appellate counsel also addressed an argument defendant raised in his initial petition for PCR concerning the make-up of the jury. Id. at 6. In that petition, defendant alleged that his trial attorney was ineffective because he "failed to remove a biased juror" during the jury selection process. Id. at 11. Counsel argued that the trial judge should have conducted an evidentiary hearing to review defendant's contention. Id. at 6.

We rejected all of defendant's arguments and affirmed the trial judge's denial of PCR. Id. at 11. With regard to defendant's claim concerning the jury selection process, we observed that defendant asserted no facts supporting his contention. Ibid.

On September 9, 2013, defendant filed a second petition for PCR.4 In this petition, defendant asserted that his trial counsel should have: (1) asked to remove a juror who, during the trial, revealed that he was involved in a real estate transaction with a judge in the same vicinage; (2) asked to remove two other jurors who were allegedly sleeping during the trial; and (3) obtained the transcripts of the jury selection process to support his contention that another juror was "potentially biased" and should have been removed from the panel. Because defendant's PCR attorney did not raise these claims in the first PCR proceeding and failed to file the jury selection transcripts with the trial court, defendant asserted that the PCR attorney provided him with ineffective assistance. Defendant also contended that his appellate attorney in Wilcox I was ineffective because he did not raise these three claims on appeal and also failed to obtain and file the jury selection transcripts with the Appellate Division.

In his written statement of reasons, the trial judge concluded that "each of the issues raised in [defendant's second petition] should have and could have been raised in defendant's first [PCR] petition"; "[t]he issues regarding failure to remove or to request a voir dire of members of the jury was raised in [defendant's] first [PCR petition] and rejected"; and defendant failed to "point to anything that might be contained in the jury selection transcripts that might support any [PCR] claim." Therefore, the judge denied defendant's petition and his subsequent motion for reconsideration. This appeal followed.

On appeal, defendant raises the following contentions:

When petitioning for PCR, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing, and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Thus, "[a] convicted defendant `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Defendant contends that his PCR counsel was ineffective because he did not argue that his trial counsel was ineffective for failing to voir dire or attempt to remove a juror who was buying a "commercial property" from a judge in the vicinage. This business transaction came to light during the trial when the juror advised the judge that he might not be able to continue on the jury if it interfered with the upcoming closing date on the property.

The trial judge thoroughly questioned the juror about the transaction; discussed the matter with defendant's counsel and the prosecutor; and decided that, at the conclusion of the trial, the juror would be designated as an alternate juror and not participate in the jury's deliberations. Under these circumstances, there was no need for defendant's trial counsel to voir dire the juror further or demand his immediate removal from the jury. Because defendant's trial counsel was not ineffective, his PCR attorney was likewise not ineffective by failing to raise this issue in the first PCR proceeding.

Similarly, defendant's contention that his PCR attorney should have argued that trial counsel was ineffective by failing to address an issue regarding sleepy jurors also lacks merit. During the trial, the prosecutor told the judge at a sidebar that it looked like two jurors had their eyes closed during the testimony of a detective and might be sleeping. The judge discussed the matter with both attorneys and then gave the jurors the opportunity "to use the facilities, stretch out[,] or [get] a drink." The judge also stated that the jurors could "stand up and stretch in the [jury] box" or "go back in [the jury] room and stretch their legs[.]" Because the judge promptly and properly addressed this issue, trial counsel was not ineffective by failing to ask to voir dire or remove either of the jurors. Therefore, defendant's PCR counsel was not ineffective by declining to raise this issue in the first PCR proceeding.

Next, defendant argues that his PCR attorney should have obtained the jury selection transcripts to support defendant's bald assertion in the first PCR proceeding that one of the jurors was potentially biased. As we noted in Wilcox II, however, defendant has never presented any concrete facts to support his claim of juror bias. Wilcox II, supra, slip op. at 11. Therefore, there was no need for the transcripts, and defendant's PCR attorney was not ineffective by failing to obtain them.

Finally, defendant argues that his appellate counsel in Wilcox II was ineffective because he did not make any arguments concerning the alternate juror and the two sleepy jurors and failed to obtain and file the jury selection transcripts with this court. However, because there was no factual or legal basis for any of defendant's claims, defendant's appellate counsel was not ineffective for declining to raise them. See State v. Gaither, 396 N.J.Super. 508, 515 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008) (noting that appellate counsel is afforded the discretion to construct and present what he or she deems are the most effective arguments in support of his or her client's position).

Affirmed.