NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was convicted by a jury of harassment, N.J.S.A. 2C:33-4; burglary, N.J.S.A. 2C:18-2; aggravated assault, N.J.S.A. 2C:12-1(b)(1); terroristic threats, N.J.S.A. 2C:12-3(a); possession of a prohibited weapon, N.J.S.A. 2C:39-3(e); stalking, N.J.S.A. 2C:12-10; and possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7(a). On May 31, 2002, the State moved for an extended term sentence, pursuant to N.J.S.A. 2C:44-3(a). The trial court granted the State's motion, and imposed an aggregate sentence of twenty years with a ten-year period of parole ineligibility.
Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Lorenzo, No. A-5945-01 (App. Div. May 25, 2005). On September 29, 2005, the Supreme Court granted defendant's petition for certification in part, and summarily remanded the matter for resentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Lorenzo, 185 N.J. 262 (2005). On October 31, 2005, the trial court resentenced defendant pursuant to Natale, to the same twenty-year custodial term with a ten-year period of parole ineligibility.
In the interim, on October 27, 2005, defendant filed a pro se amended petition to correct an illegal sentence pursuant to R. 3:22-12. On March 17, 2006, the trial court heard argument and denied defendant's amended petition to correct an illegal sentence.
On April 4, 2006, defendant filed a notice of appeal from the trial court's order. On April 18, 2006, defendant filed a petition for post-conviction relief, which was dismissed pending resolution of his appellate case. By order dated June 12, 2006, we consolidated defendant's appeals from his resentencing and denial of his motion to correct an illegal sentence. (Appellate Division Docket Nos. A-4524-05T2 and A-2275-05T2). On March 27, 2007, we remanded defendant's case for resentencing pursuant to State v. Pierce, 188 N.J. 155 (2006), and retained jurisdiction.
On May 9, 2007, the trial court resentenced defendant, pursuant to Pierce, to the same twenty-year custodial term with a ten-year period of parole ineligibility but ordered that he was to receive prior service credits of 1804 days. We affirmed this sentence by order dated December 11, 2007. The New Jersey Supreme Court denied defendant's petition for certification. State v. Lorenzo, 195 N.J. 520 (2008).
On March 9, 2007, defendant filed another petition for post-conviction relief. On April 9, 2009, defendant appeared before the Honorable Edward M. Neafsey, J.S.C., for the PCR hearing, and Judge Neafsey denied defendant's PCR petition without an evidentiary hearing. Defendant filed a notice of appeal from this order on or about June 4, 2009.
Defendant also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of New Jersey. On July 6, 2009, the United States District Court denied defendant's habeas petition and denied a certificate of appealability. Lorenzo v. Power, Civil Action No. 08-4079 (D.N.J. July 6, 2009).
Defendant presents the following issues for our consideration in his appeal.
POINT I
THE TRIAL COURT ABUSE[D] ITS DISCRETION, COMMITTED PLAIN ERROR IN FAILING TO FIND INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL STAGE, OR ON DIRECT APPEAL, AND AT THE VERY LEAST DENY [SIC] PETITIONER A[N] EVIDENTIARY HEARING, ALL IN VIOLATION OF PETITIONER'S RIGHT TO THE SIXTH, AND FOURTEENTH AMENDMENT[S] TO THE U.S. CONSTITUTION, AND ART. 1 ¶ 10, NEW JERSEY CONSTITUTION
A. TRIAL COUNSEL['S] FAILURE TO INVESTIGATE THREE STATE EYEWITNESSES TO THE CRIME, AND THE SO CALL[ED] MYSTERY "BLACK MAN"
B. TRIAL COUNSEL['S] FAILURE TO OBJECT, DIRECT APPEAL COUNSEL FAILURE TO RAISE, "TESTIMONIAL HEARSAY" AND "TESTIMONIAL EVIDENCE"
C. THE INADEQUATE VOIR DIRE OF JUROR PIROSO REGARDING THE PROBABILITY THAT HE KNEW A PATROLMAN-WITNESS
D. THE INADEQUATE VOIR DIRE OF JURORS MS. EDISON, MR. NADRAMIA, MS. BAYONA, AND MR. MAGLIONE
E. IMPROPER[] AMENDMENT TO INDICTMENT, WITH A FAULTY JURY VERDICT SHEET, THE PCR COURT ERROR IN PROCEDURALLY BARRING UNDER R. 3[:]22-5, BECAUSE THE ISSUE IS NOT IDENTICAL
F. THE STATE FAILED TO MEET ITS BURDEN OF PROOF UNDER BOTH STATE AND FEDERAL LAW REGARDING THE ADMISSION OF THE PETITIONER'S STATEMENT, AND THE PCR COURT ERROR IN PROCEDURALLY BARRING UNDER R. 3[:]22-5, BECAUSE THE ISSUE IS NOT IDENTICAL
G. THE TRIAL COURT ERROR AT THE PIERCE[] RESENTENCING
H. CUMULATIVE ERRORS, WHICH VIOLATED PETITIONER'S RIGHT TO A FAIR TRIAL, BEFORE AN IMPARTIAL JUDGE AND AN UNPREJUDICED JURY
POINT II
THE TRIAL COURT ABUSE[D] ITS DISCRETION, COMMITTED PLAIN ERROR, BY REFUSING TO FIND ONE OF THREE EXCEPTIONS UNDER R. 3[:]22-4, BASE[D] ON DEFECTIVE WARRANT[]S, WITHOUT PROPER PROCESS, OR PROBABLE CAUSE, ALL IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS AND FAIR PROCEEDING UNDER THE FOURTH/FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND ART. 1 ¶ 7, N.J. CONST[ITUTION]
POINT III
THE TRIAL COURT['S] RELIANCE ON THE APPELLATE DIVISION'S FINDING ON DIRECT APPEAL, OF THE 669 PHONE CALL[]S NOT CHARGE[D] IN THE INDICTMENT, OR PRESENTED TO THE GRAND JURY, TO SATISFY THE STALKING EPISODE, VIOLATED DEFENDANT['S] CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW
POINT I[V]
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO REVERSE, BASE[D] ON A CLERICAL PART OF THE LIMITING INSTRUCTION ON OTHER WRONG[] EVIDENCE LEFT OUT OF THE JURY CHARGE, AND THE APPELLATE DIVISION ON DIRECT APPEAL INADVERTENT[LY] OVER LOOKED, OR MISS[ED] IT, VIOLATED DEFENDANT['S] CONSTITUTIONAL RIGHT TO A FAIR TRIAL, AND DUE PROCESS OF LAW
After carefully considering the record and briefs, we are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
In asserting his claim of ineffective assistance of counsel, defendant identified a number of issues that were either raised on direct appeal or could have been raised on direct appeal. The assertion of these arguments within the context of a claim of ineffective assistance of counsel does not alter the fact that the underlying issues have been previously adjudicated or could have been presented for our consideration on direct appeal.
Post-conviction relief is not "a substitute for appeal from conviction[.]" R. 3:22-3. As a general rule, any ground for relief that has either been adjudicated on the merits or has not been raised on direct appeal is procedurally barred in a petition for post-conviction relief. R. 3:22-4; R. 3:22-5. The PCR court properly concluded that defendant's arguments regarding the elements of stalking, the admission of defendant's statement, the resentencing pursuant to State v. Pierce, 188 N.J. 155 (2006), the limiting instruction regarding evidence introduced by his counsel that defendant had stolen the victim's furniture, and the admission of the tape of the 9-1-1 call into evidence, were all barred because the issues were raised and adjudicated on direct appeal. The PCR court also properly concluded that defendant's arguments regarding the amendment of a count of the indictment, the omission of "or knowingly" from the description of stalking on the verdict sheet, the State's use of six hundred sixty-nine telephone calls not charged in the indictment to support the course of conduct element of the stalking charge, and the alleged use of hearsay, were procedurally barred pursuant to R. 3:22-5. We agree.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. Where the underlying issues identified to support a claim of ineffective assistance of counsel were found lacking in merit or are barred because they were not presented on direct appeal, it follows that defendant cannot satisfy these requirements. Moreover, defendant has presented no evidence to support a conclusion that, "but for counsel's unprofessional errors, the result of the proceeding would have been different."
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel required by the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that the petition should be denied and that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451 462-63 (1992).
Affirmed.
