State v. Oscar Porter (069223)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Oscar Porter (A-91-11) (069223)
Argued January 15, 2013 -- Decided December 19, 2013
RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
The issue in this appeal is whether defendant was entitled to an evidentiary hearing on his petition for post-
conviction relief (PCR).
The charges against defendant arose from an armed robbery committed by three men, which resulted in the
death of Rayfield Ashford and the wounding of David Veal. Veal testified that in the early morning hours of
September 11, 2003, he was using a pay telephone when three men with handguns approached him. Veal further
testified that one of the men, defendant, hit him with a gun and knocked him to the ground, and that although this
assailant pulled his hoodie up on his head, he was able to get a good look at him. Veal testified that he was taken
into an alleyway and forced to kneel and hold his hands interlocked on his head underneath his own hoodie. The
other two men left and returned with another man, later determined by investigators to be Ashford. The men told
Ashford to kneel next to Veal. The man standing over Ashford shot him in the head, killing him. At the same time,
defendant fired a shot at the back of Veal’s head. Because Veal’s hands were clasped behind his head, the bullet hit
his thumbs and grazed his skull. Veal fell to the ground and remained still, pretending to be dead until he heard the
three assailants leave. He then ran into his apartment building.
At trial, defense counsel vigorously attacked Veal’s credibility and the reliability of his identification. The
same attack was made in defense counsel’s summation. Defendant was convicted of first-degree attempted murder,
first-degree robbery, second-degree conspiracy to commit robbery, and second-degree aggravated assault. The jury
acquitted defendant of murder and could not reach a verdict with respect to any of the charges relating to Ashford.
On direct appeal, the Appellate Division merged one of the convictions and, as modified, affirmed the judgment of
conviction. The Supreme Court denied certification.
Defendant filed a timely PCR petition pro se. Subsequently, assigned counsel submitted a brief alleging
numerous deficiencies on the part of trial counsel, primarily the failure to investigate an alibi defense. According to
defendant, he was with his girlfriend Katrina Adams at the time the crimes were committed. Defendant submitted
his certification and also submitted an affidavit from Adams corroborating his claim. Defendant further submitted
an affidavit from Rashana Lundy, Ashford’s friend, who alleged that Ashford and defendant knew each other and
were good friends. Lundy also expressed her willingness to testify at trial but trial counsel never contacted her.
The assistant prosecutor suggested the decision not to call Adams as an alibi witness, or to present an alibi
defense at all, was a strategic decision by trial counsel. The judge who presided at trial heard the PCR matter and
denied an evidentiary hearing. In a written decision, the judge concluded that, even if Adams and Lundy had
testified, their testimony could not have changed the outcome. The court found that Veal’s testimony was extremely
credible and the evidence proposed by defendant would have done nothing to make it less credible, and that Adams
was, “without a doubt, a biased witness” because she was defendant’s girlfriend.
Defendant appealed the denial of the PCR petition, including the claim that trial counsel was ineffective for
failing to convey or discuss any plea offers, and the Appellate Division affirmed in an unpublished opinion.
The Supreme Court granted certification “limited to the issue of whether defendant was entitled to an
evidentiary hearing on his petition for post-conviction relief.” 210 N.J. 119 (2012).
HELD: With respect to the claim of ineffective assistance of trial counsel based on failure to investigate an alibi
defense, defendant made out a prima facie showing and raised material facts in dispute, therefore entitling him to an
1
evidentiary hearing on that issue.
1. The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey
Constitution require that a defendant receive “the effective assistance of counsel” during a criminal proceeding.
An ineffective assistance of counsel claim may occur when counsel fails to conduct an adequate pre-trial
investigation. Failure to investigate an alibi defense is a serious deficiency that can result in the reversal of a
conviction. The development and resolution of ineffective assistance of counsel claims frequently call for an
evidentiary hearing “because the facts often lie outside the trial record and because the attorney’s testimony may be
required.” State v. Preciose, 129 N.J. 451, 462 (1992). Once a defendant presents a prima facie claim, an
evidentiary hearing should ordinarily be granted to resolve any ineffective assistance of counsel claims. A prima
facie case is established when a defendant demonstrates “a reasonable likelihood that his or her claim, viewing the
facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.” Rule 3:22-10(B).
A defendant must allege specific facts and evidence supporting his allegations. (pp. 9-14)
2. In this case, it is evidently clear that an evidentiary hearing was warranted. The court’s finding regarding
defendant’s and his girlfriend’s credibility, based only on their affidavits, was an improper approach to deciding this
PCR claim and effectively denied defendant an opportunity to establish ineffective assistance of trial counsel. Here,
the court made credibility findings without hearing Adams testify on the asserted alibi defense. The proper way to
determine Adams’ veracity was to assess her testimony on direct and cross-examination. Moreover, the Court notes
that the State chose not to present trial counsel as a witness or even submit counsel’s affidavit stating the reasons for
not calling Adams or presenting an alibi defense. Based upon a review of the trial record, there was no logical basis
to conclude that trial counsel’s decision was tactical. Thus, with respect to the claim of ineffective assistance of trial
counsel based on failure to investigate an alibi defense, defendant made out a prima facie showing and raised
material facts in dispute. Therefore, defendant was entitled to an evidentiary hearing to fully present this ineffective
assistance of counsel claim. With respect to Lundy’s proffered testimony, the Court notes that defendant was not
convicted of any charges concerning Ashford, and that defendant has not made out a prima facie showing of
entitlement to a hearing on that claim. With respect to the claim regarding a plea offer, there is simply no assertion
that a plea offer was in fact made that trial counsel did not convey to his client. Thus, defendant is not entitled to an
evidentiary hearing on this issue. (pp. 14-16)
The judgment of the Appellate Division affirming the denial of the PCR petition without an evidentiary
hearing is REVERSED and the matter is REMANDED to the Law Division in order to conduct a new PCR hearing
consistent with the Court’s opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-91 September Term 2011
069223
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSCAR PORTER,
Defendant-Appellant.
Argued January 15, 2013 – Decided December 19, 2013
On certification to the Superior Court,
Appellate Division.
Lois A. De Julio, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
John E. Anderson, Special Deputy Attorney
General Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney).
Oscar Porter submitted a supplemental brief
pro se.
JUDGE RODRÍGUEZ, temporarily assigned, delivered the
opinion of the Court.
It is well-settled that, to the extent that a petition for
post-conviction relief (PCR) involves material issues of
disputed facts that cannot be resolved by reference to the trial
record, an evidentiary hearing must be held. See State v.
Preciose, 129 N.J. 451, 462 (1992). Assessment of credibility
1
is the kind of determination “best made through an evidentiary
proceeding with all its explorative benefits, including the
truth-revealing power which the opportunity to cross-examine
bestows.” State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div.
1998), certif. denied, 158 N.J. 72 (1999).
Here, defendant Oscar Porter appeals from an order of the
Appellate Division affirming the denial of his PCR petition
without an evidentiary hearing. Defendant challenges his
convictions for attempted murder, armed robbery, conspiracy to
commit armed robbery, and aggravated assault. The principal
defense offered at trial was misidentification. In his PCR
petition, defendant alleged ineffective assistance by trial
counsel for failing to investigate an alibi defense, failing to
present two witnesses to impeach the credibility of the State’s
principal witness, and failing to convey a plea offer to
defendant. Because defendant’s claim that trial counsel was
ineffective for failing to investigate an alibi defense raises
material issues of disputed facts, yet was denied without an
evidentiary hearing by the judge, over defendant’s objection, we
conclude that the decision must be set aside. We, therefore,
reverse the judgment of the Appellate Division and remand to the
Law Division for an evidentiary hearing regarding the failure to
investigate the alibi defense.
2
I.
The charges against defendant arose from an armed robbery
committed by three men, which resulted in the death of Rayfield
Ashford and the wounding of David Veal. The jury did not
convict defendant of any offenses against Ashford.
The State presented the following proofs, which we
summarize for purposes of considering the issue on appeal. Veal
testified that in the very early morning hours of September 11,
2003, he was using a pay telephone outside of his apartment
building in Newark when three men approached him. By the time
Veal was ready to hang up the telephone, the three men, each
with a handgun, had surrounded him and one of them told him,
“don’t move, don’t even look at me like that.” According to
Veal, “one guy . . . [b]oom, hit [him] in [his] face . . . with
a gun” and knocked him to the ground. Veal subsequently
identified that man as defendant. According to Veal, he saw
defendant before he came up to him. As defendant approached,
defendant “pulled his hoodie up” on his head. Defendant was
about eighteen feet from Veal when this happened. The hoodie
remained on defendant’s head throughout the incident. However,
Veal testified that he was able to get a good look at defendant
before he had pulled up the hoodie.
Veal testified that the other two individuals carried him
around the corner into an alleyway on the side of his apartment
3
building. Defendant told him to get on his knees and to put his
hands behind his head. Veal gave them forty dollars, and, as
ordered to, knelt and interlocked his hands, and placed them on
his head underneath his own hoodie.
The other two assailants left for about five minutes and
returned with another man, later determined by investigators to
be Ashford. According to Veal, neither he nor Ashford knew any
of the assailants. The men told Ashford to kneel next to Veal.
Defendant was holding a gun to Veal’s head, and another
assailant was holding a gun to Ashford’s head. The third
assailant left briefly and returned with a vehicle. The man
standing over Ashford shot him in the head, killing him. At the
same time, defendant fired a shot at the back of Veal’s head.
Because Veal’s hands were clasped behind his head, the bullet
hit his thumbs and grazed his skull. Veal fell to the ground
and remained still, pretending to be dead until he heard the
three assailants leave. He then ran into his apartment
building.
At trial, defense counsel vigorously attacked Veal’s
credibility and the reliability of his identification. The same
attack was made in defense counsel’s summation.
Defendant was convicted of first-degree attempted murder,
N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; first-degree robbery,
N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery,
4
N.J.S.A. 2C:5-2, -4; and second-degree aggravated assault,
N.J.S.A. 2C:12-1b(1). The jury acquitted defendant of murder
and could not reach a verdict with respect to the remaining
charges relating to Ashford.
On direct appeal, the Appellate Division merged one of the
convictions and, as modified, affirmed the judgment of
conviction, and we denied certification.
II.
Defendant filed a timely PCR petition pro se.
Subsequently, assigned counsel submitted a brief alleging
numerous deficiencies on the part of trial counsel, primarily
the failure to investigate an alibi defense. According to
defendant, he was with his girlfriend Katrina Adams at the time
the crimes were committed. In support of this claim, defendant
submitted his certification, which stated:
I was with Katrina on the night of September
11, 2003 . . . . Prior to the commencement
of the trial against me, Katrina informed my
attorney . . . that she can account for my
whereabouts and wanted to participate in the
trial. [Counsel] rebuffed her offer to
participate.
Defendant also submitted an affidavit from Adams
corroborating defendant’s claim, stating:
Prior to the commencement of the trial
against [defendant], I wrote to him because
I desired to participate . . . [counsel]
never called me to participate in the trial
. . . . [Defendant] was with me in my
5
apartment the whole night of September 11,
2003 and as such could not have been the
individual alleged to have committed the
crime that he is serving time for.
Defendant further submitted an affidavit from Rashana Lundy,
Ashford’s best friend, who alleged that Ashford and defendant
knew each other and were good friends. Lundy also expressed her
willingness to testify at trial but trial counsel never
contacted her.
Finally, defendant alleged in his certification that trial
counsel “never explained to me any plea offers to consider.”
There were no allegations that defendant knew that such offers
had been made by the State.
The judge who presided at trial heard the PCR matter and
denied an evidentiary hearing. At the PCR hearing, the
assistant prosecutor argued that trial counsel was an
“experienced attorney . . . who has done many, many homicide
trials, who rejected the notion of putting [Adams] on.” The
assistant prosecutor suggested the decision not to call Adams as
an alibi witness, or to present an alibi defense at all, was a
strategic decision by trial counsel.
In a written decision, the PCR court concluded that, even
if Adams and Lundy had testified, their testimony could not have
changed the outcome. Specifically, the court found that Veal’s
testimony was extremely credible and the evidence proposed by
6
defendant would have done nothing to make it less credible. The
court also found that Adams was, “without a doubt, a biased
witness” because she was defendant’s girlfriend. As to Lundy,
the court found her statement to be irrelevant and not probative
of any trial issue. Further, the court agreed with the
assistant prosecutor that “trial counsel made a strategic
determination to omit the testimony of the biased girlfriend and
the inclement [sic] ‘alibi’ at trial.” The court also concluded
that defense counsel had made a strategic decision not to call
defendant or Lundy as trial witnesses.
Defendant appealed the denial of the PCR petition,
including the claim that trial counsel was ineffective for
failing to convey or discuss any plea offers, and the Appellate
Division affirmed in an unpublished opinion. We granted
defendant’s petition for certification “limited to the issue of
whether defendant was entitled to an evidentiary hearing on his
petition for [PCR].” State v. Porter, 210 N.J. 119 (2012).
III.
Defendant contends that he received ineffective assistance
from trial counsel who failed to investigate an alibi defense,
despite the existence of an alibi witness who was willing to
testify at trial. Defendant also asserts that trial counsel did
not interview a witness who was willing to testify that
defendant and Ashford were good friends. Finally, defendant
7
alleges that trial counsel failed to convey a plea offer to him.
Defendant presents his own affidavit in support of this claim.
Defendant argues that the court erred in dismissing his petition
without an evidentiary hearing.
Conversely, the State contends that the court correctly
denied defendant’s petition without an evidentiary hearing
because defendant failed to present a prima facie case of
ineffective assistance of trial counsel on any of these points.
Specifically, the State argues the alibi testimony from
defendant’s girlfriend would not have been outcome
determinative, due to Veal’s “strong identification” of
defendant on numerous occasions. According to the State, even
if trial counsel’s failure to investigate and call defendant’s
girlfriend as an alibi witness was deficient, it was sound trial
strategy because, as a biased witness, Adams’ testimony would
have lacked credibility and ultimately jeopardized defendant’s
case.
The State also argues that the court correctly determined
that Lundy’s testimony was irrelevant, and that accordingly,
defendant could not have been prejudiced by the failure to call
Lundy as a witness.
Finally, the State argues that there is no evidence in
support of defendant’s claim that defense counsel failed to
communicate any plea agreement offers.
8
Defendant filed a pro se supplemental brief contending that
“the Appellate Division erred by holding that petitioner’s
ineffective assistance of counsel claim was without merit where
counsel failed to object to the trial court’s improper and
prejudicial questioning of a State’s witness” and failed to move
for a Wade1 hearing.
IV.
A.
The Sixth Amendment of the United States Constitution and
Article I, paragraph 10 of the New Jersey Constitution require
that a defendant receive “the effective assistance of counsel”
during a criminal proceeding. See Strickland v. Washington, 466
U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692
(1984); State v. Fritz, 105 N.J. 42, 58 (1987). The Court
adopted Strickland’s two-pronged standard for claims pursuant to
Article 1, Paragraph 10 of the New Jersey Constitution. Fritz,
supra, 105 N.J. at 58.
An ineffective assistance of counsel claim may occur when
counsel fails to conduct an adequate pre-trial investigation.
Preciose, supra, 129 N.J. at 464; State v. Savage, 120 N.J. 594,
621-22 (1990); State v. Petrozelli, 351 N.J. Super. 14, 23 (App.
Div. 2002). “‘[C]ounsel has a duty to make reasonable
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
9
investigations or to make a reasonable decision that makes
particular investigations unnecessary.’” State v. Chew, 179
N.J. 186, 217 (2004) (quoting Strickland, supra, 466 U.S. at
691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695); see also State v.
Russo, 333 N.J. Super. 119, 139 (App. Div. 2000) (“‘[I]t is the
duty of the lawyer to conduct a prompt investigation of the
circumstances of the case and explore all avenues leading to
facts relevant to guilt and degree of guilt or penalty.’”
(quoting The American Bar Association Standards, The Defense
Function § 4.1 (1971))); see also Savage, supra, 120 N.J. at 621
(noting American Bar Association guidelines “emphasize
the importance of interviewing potential witnesses during pre-
trial investigation” (quotation omitted)). A counsel’s failure
to do so will “‘render the lawyer’s performance deficient.’”
Chew, supra, 179 N.J. at 217 (quoting Savage, supra, 120 N.J. at
618).
Failure to investigate an alibi defense is a serious
deficiency that can result in the reversal of a conviction.
Indeed, “few defenses have greater potential for creating
reasonable doubt as to a defendant’s guilt in the minds of the
jury [than an alibi].” State v. Mitchell, 149 N.J. Super. 259,
262 (App. Div. 1977).
“[W]hen a petitioner claims his trial attorney inadequately
investigated his case, he must assert the facts that an
10
investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification.” State v. Cummings, 321
N.J. Super. 154, 170 (App. Div.) (citing R. 1:6-6), certif.
denied, 162 N.J. 199 (1999). “In that context, [an appellate
court] consider[s] petitioner’s contentions indulgently and
view[s] the facts asserted by him in the light most favorable to
him.” Ibid.
B.
Rule 3:22-10(b) addresses evidentiary hearings in the
context of PCR claims. It provides, in pertinent part, that
[a] defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in
support of [PCR], a determination by the
court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
[R. 3:22-10(b).]
The development and resolution of ineffective assistance of
counsel claims frequently call for an evidentiary hearing
“because the facts often lie outside the trial record and
because the attorney’s testimony may be required.” Preciose,
supra, 129 N.J. at 462; see also Russo, supra, 333 N.J. Super.
at 119; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div.
1991). Therefore, once a defendant presents a prima facie
11
claim, Rule 3:22-10(b), an evidentiary hearing should ordinarily
be granted to resolve any ineffective assistance of counsel
claims. Preciose, supra, 129 N.J. at 462-63.
The judge deciding a PCR claim should conduct an
evidentiary hearing when there are disputed issues of material
facts related to the defendant’s entitlement to PCR,
particularly when the dispute regards events and conversations
that occur off the record or outside the presence of the judge.
Russo, supra, 333 N.J. Super. at 138 (citing Pyatt, supra, 316
N.J. Super. at 51); see also Pressler & Verniero, Current N.J.
Court Rules, comment 2 on R. 3:22-10 (2013) (noting that
Preciose “mak[es] clear that [an evidentiary] hearing is
required if there is a dispute of fact respecting matters which
are not on the record”). In a similar vein, we observed that
[j]ust as when determining whether a
defendant is entitled to an evidentiary
hearing in connection with his petition for
post-conviction relief the facts should be
‘view[ed] in the light most favorable to a
defendant,’ so too, in determining whether
to entertain oral argument, the facts should
be viewed through the same generous lens.
[State v. Parker, 212 N.J. 269, 282 (2012)
(quoting Preciose, supra, 129 N.J. at 463).]
Certain factual questions, “including those relating to the
nature and content of off-the-record conferences between
defendant and [the] trial attorney,” are critical to claims of
ineffective assistance of counsel and can “only be resolved by
12
meticulous analysis and weighing of factual allegations,
including assessments of credibility.” Pyatt, supra, 316 N.J.
Super. at 51. These determinations are “best made” through an
evidentiary hearing. Ibid. Even a suspicious or questionable
affidavit supporting a PCR petition “must be tested for
credibility and cannot be summarily rejected.” State v. Allen,
398 N.J. Super. 247, 258 (App. Div. 2008).
A prima facie case is established when a defendant
demonstrates “a reasonable likelihood that his or her claim,
viewing the facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits.” R. 3:22-
10(b). In evaluating whether a prima facie claim has been
asserted,
[a]ny factual assertion that provides the
predicate for a claim of relief must be made
by an affidavit or certification pursuant
to Rule 1:4-4 and based upon personal
knowledge of the declarant before the Court
may grant an evidentiary hearing.
[R. 3:22-10(c).]
However, a defendant is not entitled to an evidentiary
hearing if the “allegations are too vague, conclusory, or
speculative to warrant an evidentiary hearing[.]” State v.
Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.
Ct. 140, 139 L. Ed. 2d 88 (1997). Rather, defendant must allege
13
specific facts and evidence supporting his allegations. As was
explained in Cummings, supra, 321 N.J. Super. at 170:
[I]n order to establish a prima facie claim,
a petitioner must do more than make bald
assertions that he was denied the effective
assistance of counsel. He must allege facts
sufficient to demonstrate counsel’s alleged
substandard performance. Thus, when a
petitioner claims his trial attorney
inadequately investigated his case, he 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.
V.
Turning to the matter at hand, it is abundantly clear that
an evidentiary hearing was warranted. The court’s findings
regarding defendant’s and his girlfriend’s credibility, based
only on their affidavits, was an improper approach to deciding
this PCR claim and effectively denied defendant an opportunity
to establish ineffective assistance of trial counsel. An
opportunity to test the veracity of an affidavit has been
properly permitted based on weaker circumstances than these.
For example, in Allen, supra, 398 N.J. Super. at 250-51, the
defendant offered the affidavit of a fellow inmate in support of
his motion for a new trial based upon newly discovered evidence.
Clearly, an affidavit presented by a person under such
circumstances would make a reasonable person question its
veracity. Yet, the Appellate Division reversed the denial of
14
the motion for failing to conduct an evidentiary hearing. Id.
at 253. The Appellate Division held:
We recognize that post conviction statements
of persons who did not testify at trial,
particularly when serving time at the same
institution as the defendant, are
“inherently suspect.” State v. Robinson,
253 N.J. Super. 346, 367 (App. Div.),
certif. denied, 130 N.J. 6 (1992). However,
[the inmate affiant’s] post-judgment
exculpatory statements to third parties, and
confirmed by affidavit, must be tested for
credibility and cannot be summarily
rejected.
[Id. at 258-59; Pyatt, supra, 316 N.J.
Super. at 51.]
Here, the court made credibility findings without hearing
Adams testify on the asserted alibi defense. The proper way to
determine Adams’ veracity was to assess her testimony on direct
and cross-examination. Instead, the court simply speculated
that she would be “biased.” There is no substitute for placing
a witness on the stand and having the testimony scrutinized by
an impartial factfinder. That did not happen here.
Moreover, we note that the State chose not to present trial
counsel as a witness or even submit counsel’s affidavit stating
the reasons for not calling Adams or presenting an alibi
defense. The court’s conclusion had no factual support. Based
upon a review of the trial record, there was no logical basis to
conclude that trial counsel’s decision was tactical.
15
In sum, with respect to the claim of ineffective assistance
of trial counsel based on failure to investigate an alibi
defense, we conclude that defendant made out a prima facie
showing and raised material facts in dispute. Therefore,
defendant was entitled to an evidentiary hearing to fully
present this ineffective assistance of counsel claim. We hold
that defendant is entitled to a new hearing on that issue.
With respect to Lundy’s proffered testimony, we note that
defendant was not convicted of any charges concerning Ashford,
and that defendant has not made out a prima facie showing of
entitlement to a hearing. Nonetheless, the remand judge may
consider whether or not trial counsel’s failure to investigate
Lundy’s statement in her certification that Ashford and
defendant were good friends, constitutes ineffective assistance
of counsel.
That said, we reach a different conclusion with respect to
the claim regarding a plea offer. Even construing defendant’s
affidavit in the light most favorable to him, there is simply no
assertion that a plea offer was in fact made that trial counsel
did not convey to his client. Defendant failed to make a prima
facie showing of such a claim. Thus, he was not entitled to an
evidentiary hearing on this issue.
16
VI.
The judgment of the Appellate Division affirming the denial
of the PCR petition without an evidentiary hearing is reversed,
and the matter is remanded to the Law Division in order to
conduct a new PCR hearing consistent with this opinion. We
direct that this PCR hearing be assigned to a judge who has not
previously evaluated the disputed issues. See State v. Gomez,
341 N.J. Super. 560, 579 (App. Div.) (holding while reversing
and remanding, that “it is appropriate to have the case referred
to a different trial judge who will be unfettered by [prior
decision in the matter]”), certif. denied, 170 N.J. 86 (2001).
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRÍGUEZ’s opinion.
17
SUPREME COURT OF NEW JERSEY
NO. A-91 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSCAR PORTER,
Defendant-Appellant.
DECIDED December 19, 2013
Chief Justice Rabner PRESIDING
OPINION BY Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1