would have been different; that determination can be made
only after the requisite evidentiary hearing. Ibid.
The burden of proving that counsel’s alleged
incompetence had a prejudicial effect upon the outcome of
the proceeding is “squarely on defendant.” State v. Paige,
256 N.J. Super. 362, 377 (App. Div.), certif. denied 130
N.J. 17 (1992). See State v. Timmendequas, 161 N.J. 515,
598 (1999).
A per se assessment of prejudice is reserved for those
cases in which counsel’s performance is so likely to
prejudice the accused that it is tantamount to a complete
denial of counsel. When counsel’s errors are so grave it is
unnecessary for defendant to demonstrate prejudice.
United States v. Cronic, 466 U.S. 648 (1984). See State v.
Harrington, 310 N.J. Super. 272, 283 (App. Div.
1998)(counsel was ineffective for admitting during closing
argument that defendant participated in robbery). But see
State v. Sheika, N.J. Super. 2001 WL 111021 (App.
Div. 2001).
The Strickland test is also utilized for ineffective
assistance of appellate counsel claims. State v. Morrison,
215 N.J. Super. 540 (App. Div.), certif. denied 107 N.J. 642
(1987).
The Strickland test also applies to ineffective assistance
of counsel claims in the guilt-phase of a death penalty case.
State v. Davis, 116 N.J. 341, 355 (1989). However, for
ineffective assistance of counsel claims during the penalty-
phase portion of a trial, the second-prong of the Strickland
test was reformulated: in those cases, prejudice is
established if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the jury’s penalty-phase
deliberations would have been affected substantially.”
State v. Martini V, 160 N.J. 248, 264 (1999); State v.
Marshall III, 148 N.J. 89, 250, cert. denied 522 U.S. 850
(1997).
The Strickland test also applies to guilty plea challenges
based on ineffective assistance of counsel. Hill v. Lockhart,
474 U.S. 52 (1985); State v. Garcia, 320 N.J. Super. 332,
340 (App. Div. 1999); State v. Chung, 210 N.J. Super. 427,
433 (App. Div. 1986). See State v. Vieria, 334 N.J. Super
681 (App. Div. 2000)(counsel renders ineffective
assistance in not telling defendant, a resident alien who has
difficult reading and writing English and who is
contemplating a guilty plea, that he risks deportation with
conviction).
Decisions of counsel concerning trial strategy, made
after a thorough investigation of the law and facts pertinent
to a particular case, are almost always unassailable and
cannot be a basis for ineffective assistance of counsel claims,
even when that strategy fails. See State v. Marshall I, 123
N.J. 1, 165 (1991); State v. Perry, 124 N.J. 128, 153
(1991); State v. Buondonna, 122 N.J. 22, 44 (1991); State v.
Hightower, 120 N.J. 378, 402 (1990); State v. Sheika, N.J.
Super. (App. Div. 2001); State v. Cordero, 291 N.J.
Super. 441 (App. Div. 1996); State v. Paige, 256 N.J. Super.
(App. Div.), certif. denied 130 N.J. 17 (1992). See State v.
Savage, 120 N.J. 594 (1990), for an example of when
counsel’s investigation of case was found to be so deficient
as to require reversal for new trial. And see State v. Holmes,
290 N.J. Super. 302 (App. Div. 1996), for an example of
ineffective assistance due to counsel’s failure to use
witnesses’s pending charges, their prior records and their
potential for loss of parole and probationary statute to
impeach their credibility, and for counsel failure to object
to the prosecutor’s use of defendant’s pre-arrest silence).Defense counsel’s failure to present witnesses at
penalty phase of capital murder trial did not amount to
ineffective assistance of counsel because it was a strategic
decision. State v. Morton, 155 N.J. 383, 431 (1998).Defense counsel’s failure to discover and put forward
evidence containing both mitigating and damaging
elements does not constitute ineffective assistance of
counsel. State v. Martini, 160 N.J. 248 (1999).In juvenile waiver hearing, if defense counsel failed to
present any evidence of the juveniles potential for
rehabilitation, there may be a valid claim of ineffective
assistance of counsel. In making that determination, it
must be established that (1) the decision not to present
evidence was reasonable, and (2) that there is a reasonable
likelihood that presentation of that evidence would have
made a difference at the waiver proceeding. Both questions
must be answered affirmatively to make out a claim for
ineffective assistance of counsel. State v. Jack, 144 N.J. 240
(1996).Counsel’s failure to move for dismissal of indictment
on double jeopardy grounds after first trial judge
erroneously granted State’s motion for a mistrial was not
ineffective assistance. State v. Allah 334 N.J. Super. 516
(App. Div. 2000)The right to assistance of counsel was not violated by
attorney who refused to cooperate in presenting perjured
testimony. Nix v. Whiteside, 475 U.S. 157 (1986).Reasonably effective representation cannot and does
not include a requirement to make arguments based on