STATE OF NEW JERSEY VS. NICHOLAS F. WELCH (11-09-1648, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0116-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NICHOLAS F. WELCH,
Defendant-Appellant.
____________________________
Submitted December 16, 2019 – Decided March 11, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 11-09-1648.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Nicholas F. Welch was convicted by jury of first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1)
(count one); first-degree murder – purposely/knowingly, N.J.S.A. 2C:11-3(a)(1)
and (2) (count two); four counts of first-degree attempted murder, N.J.S.A.
2C:5-1 and N.J.S.A. 2C:11-3 (counts three, four, five and six); first-degree
murder – commission of crime, N.J.S.A. 2C:11-3(a)(3) (count seven); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eight);
second-degree possession of weapon for unlawful purpose, N.J.S.A. 2C:39-4(a)
(count nine); and second-degree burglary, N.J.S.A. 2C:18-2(b)(1) (count ten),
in connection with a shooting at a fraternity party. 1 We affirmed his convictions
and sentence, State v. Welch, No. A-5950-13 (App. Div. Nov. 14, 2016); the
Supreme Court denied his petition for certification, 230 N.J. 467 (2017).
He now appeals from the court's order denying his petition for post-
conviction relief (PCR) without an evidentiary hearing, arguing:
POINT I
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
1
Defendant was found not guilty of third-degree hindering apprehension or
prosecution, N.J.S.A. 2C:29-3(b)(1) (count eleven).
A-0116-18T3
2
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
FOR FAILING TO HAVE AN EXCULPATORY
WITNESS TESTIFY; FOR FAILING TO PURSUE A
MOTION TO HAVE THE ASSISTANT
PROSECUTOR BE DISQUALIFIED AND TESTIFY;
AND BY EFFECTIVELY INDUCING DEFENDANT
NOT TO TESTIFY.
A. TRIAL COUNSEL FAILED TO HAVE
ISAIAH KELLY, AN EXCULPATORY
WITNESS, TESTIFY.
B. TRIAL COUNSEL FAILED TO
PURSUE A MOTION TO HAVE THE
ASSISTANT PROSECUTOR BE
DISQUALIFIED AND TESTIFY AS A
DEFENSE WITNESS.
C. TRIAL COUNSEL, BY NOT
PREPARING DEFENDANT,
EFFECTIVELY INDUCED HIM NOT TO
TESTIFY.
In his pro se supplemental brief, defendant raises the following additional
points:
POINT I
THE TRIAL COURT ERRED IN DENYING [PCR]
TO [DEFENDANT] TO HIS ARGUMENT IN POINT
II OF HIS PRO SE BRIEF IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND FUNDAMENTAL FAIRNESS. 2
2
Defendant improperly references arguments made in the pro se brief he
submitted to the PCR court. Rule 2:6-1(a)(2) precludes inclusion of that brief
A-0116-18T3
3
POINT II
[DEFENDANT] SUBMIT[S] THAT THE TRIAL
COURT ERRED IN NOT GRANTING HIM AN
EVIDENTIARY HEARING ON THE PLEA DEAL AS
RAISED IN POINT III OF HIS PRO SE BRIEF
CONCERNING COUNSEL AND THE PLEA
BARGAIN.
POINT III
[DEFENDANT] SUBMIT[S] THAT THE TRIAL
COURT ERRED IN DENYING HIS [PCR] IN POINT
IV CONCERNING INEFFECTIVE ASSISTANCE OF
COUNSEL WHO FAILED TO PROVIDE OUT OF
STATE WITNESS WHO HAD PRIOR
CONVERSATIONS AND INFORMATION
CONCERNING WHO PULLED THE TRIGGER IN
THIS CASE AND INFORMATION THAT ONLY
SOMEONE WHO WAS NOT ONLY PRESENT
KNEW BUT ADMITTEDLY STATED TO ISAIAH
KELLY HE SHOT INTO THE CROW[D] MAD
BECAUSE [DEFENDANT] DID NOTHING IN
WHICH COUNSEL STATED HE DID NOT THINK
THE COURT WOULD APPROVE.
POINT IV
[DEFENDANT] SUBMIT[S] THAT THE PCR
COURT ERRED IN DENYING RELIEF AS TO
POINT IV OF HIS PRO SE POST CONVICTION
LETTER BRIEF CONCERNING HIS FOURTH
AMENDMENT CLAIMS.
in this record. Any argument must be fully set forth in the appellate briefs,
whether submitted by counsel or defendant, or that argument is waived.
Whitfield v. Blackwood, 101 N.J. 500, 504 (1986) (Clifford, J., concurring).
A-0116-18T3
4
POINT V
[DEFENDANT] SUBMIT[S] THAT THE [PCR]
COURT ERRED IN DENYING RELIEF ON POINT
VI OF [DEFENDANT'S] ARGUMENT
CONCERNING ADDITIONAL INFORMATION
OMITTED WHICH COULD HAVE LE[D] TO THE
[SUPPRESSION MOTION JUDGE] THROWING
OUT ALL THE EVIDENCE WHICH WAS
MATERIAL TO THE DEFENSE.
POINT VI
THE [PCR] COURT ERRED IN DENYING [PCR]
FOR ISSUES RAISED IN POINT VII OF HIS BRIEF
CONCERNING APPELLATE COUNSEL.
POINT VII
[DEFENDANT] SUBMIT[S] THAT THE [PCR]
COURT ERRED BY NOT GRANTING A[N]
EVIDENTIARY HEARING ON THE MERITS OF
POINT VIII OF HIS PRO SE BRIEF.
POINT VIII
THE [PCR] COURT ERRED IN BY NOT GRANTING
RELIEF TO POINT . . . IX OF [DEFENDANT'S] PRO
SE [PCR] BRIEF.
POINT IX
[DEFENDANT] WILL ARGUE THAT THE TRIAL
COURT NOR [PCR] COURT MADE A RULING ON
THE MIRANDA HEARING THUS VIOLATING
[DEFENDANT'S] DUE PROCESS RIGHT TO
APPEAL ON THIS ISSUE.
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5
POINT [X]3
[DEFENDANT] SUBMIT[S] THAT THE [PCR]
COURT ERRED IN DENYING RELIEF FOR AN
EVIDENTIARY HEARING WHERE MS. DENISE
VALDEZ WAS NOT CALLED AS A DEFENSE
WITNESS.
POINT [XI]
[DEFENDANT] WILL ARGUE THAT [PCR]
COUNSEL WAS INEFFECTIVE IN DENYING AN
EVIDENTIARY HEARING THE STATE HAD
ALREADY CONCEDED WHICH WOULD HAVE
ALLOWED THE EVIDENCE TO BE PLACED ON
RECORD WITHOUT OPPOSITION BECAUSE HE
WAS NOT PREPARED.
Because the PCR court did not hold an evidentiary hearing, we review
both the factual inferences drawn by the PCR court from the record and the
court's legal conclusions de novo. State v. Blake, 444 N.J. Super. 285, 294 (App.
Div. 2016). To establish a PCR claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test formulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
3
The sequence of defendant's point headings omitted "Point X" and labeled his
last two arguments as "Point XI" and "Point XII." We correct those errors here
for clarity.
A-0116-18T3
6
the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at
687); then by proving he suffered prejudice due to counsel's deficient
performance, Strickland, 466 U.S. at 687, 691-92. Defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. Under those standards, we determine an evidentiary
hearing is required to address defendant's claim that trial counsel was ineffective
for failing to call Isaiah Kelly as a witness. We are unpersuaded by any other
of defendant's arguments.
I.
Central to defendant's argument that his trial counsel was ineffective for
failing to call Kelly to testify at trial is a sworn statement taken four days after
the homicide from Kelly at the Wilkes-Barre Pennsylvania Police Department
by Detectives Holt Walker of the Essex County Prosecutor's Office and
Detective Javier Acevedo of the East Orange Police Department. Kelly told the
detectives that codefendant Marcus Bascus, who was charged in the first ten
counts of the indictment for the same crimes as defendant,4 told him that Bascus
went to the party because [defendant] had got jumped,
and they went back to the party, and he handed
[defendant] the gun. [Defendant] fired a shot, in the air,
I believe, or -- you know, and [Bascus] grabbed the gun
4
Bascus did not stand trial with defendant.
A-0116-18T3
7
from him and then started just spraying the . . . like,
shooting it inside the house at people.
When asked if Bascus told him how he and defendant "met up," Kelly answered:
Apparently, they were supposed to go to the party
together but [defendant] went to the house first. And
what happened was he went in there trying to -- I guess
trying to, like, to Bogart (phonetic) the party, and he
kind of got beat up when he went inside, and then he
came out stumbling, and [Bascus] had seen him, and he
grabbed a gun that he -- I don't know where he grabbed
it from, but he just grabbed a gun and handed it to
[defendant].
Responding to Walker's questions about the incident, Kelly reiterated that
defendant "let off a shot, I guess to scare everybody," whereupon Bascus "kind
of got mad and was like, ['f]uck that,['] and then grabbed the gun" from
defendant and "started shooting[.]"
Although the PCR court—before which the case was tried—recognized
"Kelly had vital information in this case [that] would refute the State’s evidence
against [defendant] by showing that . . . Bascus, originally the co -defendant in
this case, not [defendant], began randomly shooting in the crowd," the court
noted Kelly was not present at the scene and "[t]he information . . . came from
. . . Bascus, in Wilkes-Barre, Pennsylvania[,] not based upon any personal
information which probably would have been [sic] admitted anyway because of
inadmissible hearsay." The PCR court continued:
A-0116-18T3
8
Nevertheless, even -- even if admissible, there
would not necessarily been helpful to [defendant].
[Kelly] does . . . testify that [defendant] fired the first
shot and Bascus . . . fired certain subsequent shots
would qualify with the term such as I guess or I believe.
And, in fact, the statement would have placed
[defendant] at the scene of the crime with the murder
weapon in his hand. This would not necessarily have
been helpful with regard to exonerating or creating
reasonable doubt that with regard to . . . defendant’s
involvement in this particular incident.
The State argues the failure to call Kelly was sound trial strategy, not
ineffective assistance of counsel. We agree with the State that our Supreme
Court's holding in State v. Arthur, 184 N.J. 307 (2005), should instruct our
analysis. The Court recognized in making "one of the most difficult strategic
decisions that any trial attorney must confront," deciding which witnesses to call
at trial,
[a] trial attorney must consider what testimony
a witness can be expected to give, whether
the witness’s testimony will be subject to effective
impeachment by prior inconsistent statements or other
means, whether the witness is likely to contradict the
testimony of other witnesses the attorney intends to
present and thereby undermine their credibility,
whether the trier of fact is likely to find the witness
credible, and a variety of other tangible and intangible
factors.
[Id. at 320-21.]
A-0116-18T3
9
The trial attorney's "decision concerning which witnesses to call to the stand is
an 'an art,' and a court's review of such a decision should be 'highly deferential.'"
Id. at 321 (quoting Strickland, 466 U.S. 689, 693).
We first note, the PCR court did not couch its decision in terms of defense
counsel's strategy. Moreover, absent an evidentiary hearing, the record is barren
as to what that strategy was.
Contrary to the PCR court's determination that Bascus's statement to Kelly
was probably inadmissible hearsay, the statement of a codefendant, admitting
that defendant did nothing more than shoot in that air, and he, not defendant,
actually shot at people, was likely admissible. Bascus's alleged admission that
he shot into the crowd of partygoers in the house was so far against his interests
regarding the charges on which he was indicted "that a reasonable person in
declarant's position would not have made the statement unless the person
believed it to be true." N.J.R.E. 803(c)(25). "Statements by a declarant that
exculpate another, 'inferentially indicate[] his own involvement,' and are
considered sufficiently against the declarant's penal interests to be admissible."
State v. Norman, 151 N.J. 5, 31 (1997) (quoting State v. Davis, 50 N.J. 16, 28-
29 (1967)); see also State v. White, 158 N.J. 230, 244 (1999) (holding statements
exculpating a defendant are admissible "under the statement-against-interest
A-0116-18T3
10
exception to the hearsay rule if, when considered in the light of surrounding
circumstances, they subject the declarant to criminal liability or if, as a related
part of a self-inculpatory statement, they strengthen or bolster the incriminatory
effect of the declarant's exposure to criminal liability").
Kelly's statement, with or without defendant's certification that his tri al
counsel told him Kelly could not testify because counsel did not think he could
secure payment for Kelly's transportation from Pennsylvania where he was
incarcerated, presented a prima facie case of ineffective assistance of counsel
warranting an evidentiary hearing. R. 3:22-10(b); State v. Preciose, 129 N.J.
451, 462 (1992). The statement taken from Kelly alleges specific facts and
evidence supporting defendant's allegations. See State v. Porter, 216 N.J. 343,
355 (2013). The statement not only shows that defendant did not shoot into the
crowd, but also evidences that defendant—who is said to have shot in the air—
may not have shared Bascus's intent to so do.
Without a hearing, at which the PCR court can determine: if counsel
actually stated that transportation issues precluded Kelly's production at trial;
any other reason he did not call Kelly; and any reason trial counsel decided
against calling Kelly and pursued the misidentification defense ultimately
utilized and contended Bascus or Isaac Muldrow—on whom the murder weapon
A-0116-18T3
11
was found—was the shooter, the PCR court could not reasonably defer to trial
counsel's decision not to call Kelly. The reason why Kelly was not called is
absent from the record, as is the reason trial counsel chose the defense tack
presented to the jury.
We do not decide whether the trial strategy chosen by trial counsel was
sound or ineffective. We leave that decision to the PCR judge. We recognize
many factors may have entered trial counsel's decision: defendant's statemen t
to the police;5 the nature of the identifications made by the State's witnesses; the
testimony of Muldrow who contended defendant gave him the gun and told him
to get rid of it; or anything else known to counsel. We trust the PCR court will
review defense counsel's actions, according the presumption that counsel's
conduct fell within the range of reasonable professional assistance, Arthur, 184
N.J. at 318-19, and adhering to the tenet that "an otherwise valid conviction will
not be overturned merely because the defendant is dissatisfied with his or her
counsel's exercise of judgment during the trial," State v. Castagna, 187 N.J. 293,
5
The State argues defendant's statement, in which he first denied being at the
party then admitted he was there but denied entering the house, buttressed trial
counsel's decision to pursue the misidentification defense because Kelly would
have placed him at the scene with a gun in his hand.
A-0116-18T3
12
314 (2006). The PCR court will, of course, adhere to the familiar standards
synopsized by the Court in Arthur:
In determining whether defense counsel's
representation was deficient, "'[j]udicial scrutiny . . .
must be highly deferential,' and must avoid viewing the
performance under the 'distorting effects of hindsight.'"
[Norman, 151 N.J. at 37]. Because of the inherent
difficulties in evaluating a defense counsel's tactical
decisions from his or her perspective during trial, "a
court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must
overcome the presumption that, under the
circumstances, the challenged action 'might be
considered sound trial strategy.'" Strickland, 466 U.S.
at 689.
In determining whether defense counsel's alleged
deficient performance prejudiced the defense, "[i]t is
not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the
proceedings." Id. at 693. Rather, defendant bears the
burden of showing that "there is a reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at 694.
[184 N.J. at 318-19 (first, second and fourth alterations
in original).]
We limit the hearing required by our remand to the single issue of
counsel's strategy not to call Kelly and, instead pursue another defense, because
we find no merit in defendant's other arguments.
A-0116-18T3
13
II.
Defendant argues his trial counsel was ineffective for failing to pursue a
motion to disqualify Essex County Assistant Prosecutor Romesh Sukhdeo and
call him as a defense witness, after the motion judge—who retired prior to
trial—denied the disqualification motion without prejudice, ruling the motion
was premature because Sukhdeo had not yet been subpoenaed by defendant,
leaving the decision to the trial court "[i]f and when" a subpoena issued.
Sukhdeo was never subpoenaed, and trial counsel did not renew the motion;
Sukhdeo tried the case and did not testify. 6
Defendant argued to the motion judge that Sukhdeo, as the lead prosecutor
in this case, worked hand-in-hand with Walker, the detective involved in the
application for and return of a search warrant for defendant's residence, in which
misrepresentations were made to the judge who issued the warrant (warrant
judge). The motion judge found "two unassailable facts": "information
provided to [the warrant judge] was inaccurate" and "the return of the [a]ffidavit
6
The PCR court found that an application to disqualify Sukhdeo was made to
it, and that the motion was denied. We determined, however, on direct appeal
that there was no evidence in the record the assistant prosecutor was served with
a subpoena or that the disqualification motion was renewed. Welch, slip op. at
11. Both the State and defense concur the record is still devoid of evidence that
the motion was renewed.
A-0116-18T3
14
that was given to [the warrant judge] was also equally false." The search warrant
application falsely stated defendant was a member of the Bloods street gang,
prompting the warrant judge's issuance of a protective order with the search
warrant. The return falsely represented that all items were seized from the first
floor and did not disclose that items were also seized from the basement; the
items seized from the basement were suppressed by the motion judge in deciding
defendant's motion to suppress evidence. We also note the return for the warrant
to search Bascus's residence did not disclose shotgun shells found therein.
Defendant points to the motion judge's finding that Sukhdeo prepared the
affidavit from facts supplied by Walker and that the two "acted in concert,"
arguing they both gave misleading information and violated his constitutional
right to due process. He contends an evidentiary hearing is required to "allow
. . . Sukhdeo to testify as to why he would sign a document which he knew to be
false."
A defendant contending that counsel was ineffective for failure to file a
motion must show a reasonable probability "that the motion would have been
successful." See State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003)
(holding "[i]n an ineffective assistance claim based on failure to file a
suppression motion, the prejudice prong requires a showing that the motion
A-0116-18T3
15
would have been successful"). Defendant has not established sufficient grounds
for granting the motion or for an evidentiary hearing.
As we recognized on direct appeal:
The mere likelihood that a prosecutor will be called to
testify, "does not itself disqualify the prosecutor's
office from representing the State." State v. Harvey,
176 N.J. 522, 531 (2003). "The law does not liberally
permit a defendant to call a prosecutor as a witness. On
the contrary, a defendant must demonstrate a
compelling and legitimate need to do so." [State v.
Alfano, 305 N.J. Super. 178, 189 (App. Div. 1997)].
[Welch, slip op. at 11.]
Akin to his arguments before the motion judge that he wanted to call
Sukhdeo regarding "issues concerning conspiring to fabricate evidence,
deception and lies to [the warrant judge] on a number of occasions and which
. . . resulted in a violation of [defendant's] constitutional rights to due process
and fair trial," defendant now contends that Sukhdeo would have testified
regarding "the alleged fabrication . . . which went to the very core of the State’s
integrity in prosecuting defendant." But, as Sukhdeo urged to the motion judge,
and as the PCR court found, defendant never specified what testimony would be
elicited from the assistant prosecutor, proffering "specific facts and evidence
supporting his allegations." Porter, 216 N.J. at 355.
A-0116-18T3
16
The record reveals that any testimony about fabrication in the search
warrant application or return could have been obtained from Walker. Defendant
has not shown a compelling and legitimate need to call Sukhdeo; thus, he has
not demonstrated that his motion to disqualify the assistant prosecutor would
have been successful, particularly in light of his failure to specify what Sukhdeo
would have offered. Even the motion judge, who criticized the assistant
prosecutor for failing to ensure that accurate information was presented to the
warrant judge, did not conclude that Sukhdeo made intentional
misrepresentations, asking: "How you could be a part of that, whether it was
unintentionally or intentionally, you have an obligation to make sure that the
information that is submitted . . . is accurate."
Further, in light of Walker's testimony and defendant's failure to proffer
what could have been elicited from Sukhdeo, defendant has not explained how
his testimony would have impacted the outcome of the trial, satisfying the
second Strickland/Fritz prong.
And, defendant has failed to establish a prima facie case warranting an
evidentiary hearing. "[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." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
A-0116-18T3
17
1999). Defendant failed to meet that threshold. See Preciose, 129 N.J. at 462-
63; R. 3:22-10(b). Furthermore, an evidentiary hearing cannot be used to
explore PCR claims. See State v. Marshall, 148 N.J. 89, 157-58 (1997). As
such, an evidentiary hearing was properly denied.
Defendant's further arguments regarding this issue do not warrant
discussion. R. 2:11-3(e)(2).
III.
Defendant also argues that his trial counsel was ineffective for
"effectively inducing [him] not to testify" at trial. Defendant maintains that had
trial counsel adequately discussed defendant's potential trial testimony, he
would have chosen to testify. We agree with the PCR court that defendant’s
contention is belied by the record.
Consonant with the "better practice" that a court inquire whether counsel
has advised a defendant of the right to testify, State v. Savage, 120 N.J. 594, 631
(1990), the trial court engaged in a fully colloquy with defendant about his right
to testify, his right not to testify and the court's instruction to the jury regarding
an election not to testify. That colloquy continued:
THE COURT: You had an opportunity to talk to
your lawyer about this particular issue?
A-0116-18T3
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[DEFENDANT]: Yes.
THE COURT: He's answered all your questions?
[DEFENDANT]: Yes.
THE COURT: You've had a thorough discussion
with him about that?
[DEFENDANT]: Yes.
THE COURT: Do you have any questions now
about that?
[DEFENDANT]: No.
THE COURT: I don't know; anything else you
want to add, [defense counsel]?
[DEFENSE COUNSEL]: The only thing I want to
supplement is I just want to make it clear on the
record, and I'll confirm it with my client, that we
have had many discussions over the last couple years
about what might happen in terms of whether he wants
to testify or not. And after we both had ample
opportunity to discuss the issue, that especially most
recently, my client has decided that he is not going to
testify. But he made that decision based upon
discussions between the two of us. I gave him advice.
I gave him my opinions on things.
Ultimately, though, it wasn't my decision; it was
my client's decision. And I want to make sure that my
client agrees that, number [one], that I explained
everything to you, what the plus and minuses were of
testifying versus not testifying. Correct?
[DEFENDANT]: Yes.
A-0116-18T3
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[DEFENSE COUNSEL]: And that the decision you've
arrived at is based on a combination of my advice and,
ultimately, your decision. Correct?
[DEFENDANT]: Yes.
"Defendant may not create a genuine issue of fact, warranting an
evidentiary hearing, by contradicting his prior statements without explanation."
Blake, 444 N.J. Super. at 299. Defendant failed to establish a prima facie case
of ineffective assistance of counsel; an evidentiary hearing was not
warranted. See Marshall, 148 N.J. at 158.
IV.
We, again, note many of the arguments in defendant's pro se merits brief
simply reference arguments made in the pro se brief submitted to the PCR court
without setting forth what the full argument was. Not only is an issue not briefed
deemed waived, Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div.
2011), an issue raised "[i]n a single sentence in its brief" is also deemed waived,
N.J. Dep't of Envtl. Prot. v. Alloway Township, 438 N.J. Super. 501, 505-06 n.2
(App. Div. 2015). In any event, we determine the arguments set forth in
defendant's pro se brief in Points II, IV, V, VI, VII, VIII, IX, and as renumbered,
X and XI, are without sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2). We add only the following comments.
A-0116-18T3
20
Defendant's contention the PCR court erred by not granting an evidentiary
hearing concerning counsel and an alleged plea bargain is unsupported. Other
than defendant's bald assertion, there is, as the PCR court noted, no evidence
that a plea offer was made. In fact, the State has denied that an offer was
tendered. An evidentiary hearing was not warranted. Cummings, 321 N.J.
Super. at 170.
We previously addressed defendant's claims about his motion to suppress
his statement (Points VII and IX), and his motion to dismiss the indictment based
on misconduct before the grand jury (Point VIII), on direct appeal.
"[A] defendant may not use a petition for post-conviction relief as an
opportunity to relitigate a claim already decided on the merits." State v.
McQuaid, 147 N.J. 464, 483 (1997); see R. 3:22-5.
As to the failure to call Denise Valdez as a defense witness (Point X) to
testify about the State's "wrong door claim and coorborate[] the fact that the
exterior door was indeed the door that was kicked in by the shooter contrary to
the prosecutor's belief," we note trial counsel presented an expert who testified
the shoeprint found on the exterior door did not match defendant. Furthermore,
trial counsel in summation thoroughly reviewed that evidence and the
conflicting evidence about which door was kicked without Valdez's testimony.
A-0116-18T3
21
Again, defendant has not presented an affidavit or certification from that witness
to establish a prima facie case warranting an evidentiary hearing. State v. Jones,
219 N.J. 298, 312 (2014).
Lastly, defendant's contention that his PCR counsel was unprepared and
failed to participate in an evidentiary hearing contorts his counsel's actual
comment during the initial PCR hearing, responding to Sukhdeo's argument,
recognizing that defendant's trial counsel was present:
So . . . we have the witness here. We have the
witness here. I -- I rather not a hearing. But just when
you look at what the Appellate Division does with these
cases are, you do the hearing, but you don't do the
hearing and then four -- four years later you have to find
witnesses that aren't here.
I'm just cutting to the chase. So we have a
situation where he says he wants a hearing, I say okay,
and then when we get to court he goes stop. So I think
we can take some testimony if we want today. I mean,
look -- you look at the crux of this paperwork, he says
his lawyer was ineffective. He said his lawyer was
ineffective and that's what you -- you claim in -- in a
PCR, ineffective assistance of counsel.
There's [twenty] points total in this PCR. So . . .
they're basically arguing everything that was argued in
the pretrial motions that was litigated on the record, you
know, planting of evidence, suppression, fourth
Amendment, you know, the Miranda, why wasn't things
done at the Grand Jury. All of that stuff was matters of
the record.
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You know, as far as I'm concerned, they're
procedurally barred. But he's claiming, look, my
attorney told me apparently off the record I couldn't
testify, he didn't prepare me. He did a horrible job, all
of that stuff that he claims . . . in [defendant's]
certification, those are the type of things that you
explore in the evidentiary hearing. And that's why I
have counsel here. They want a hearing, I'm ready to
go.
PCR counsel clarified that he "did not say that we don't want a hearing"
but said "we're not prepared to go forward with the hearing today because [the
PCR court] had not granted one" and the scope of the hearing was not defined.
PCR counsel correctly observed that without the court's decision whether an
evidentiary hearing would be granted and, if so, what the scope would be,
counsel was unable to determine what witnesses would be needed, and would
need to prepare defendant's case in light of the parameters set by the PCR court.
PCR counsel further argued "[t]he State can't unilaterally set a hearing date and
say, [']hey, we're ready to go.[']"
PCR counsel did not turn down the opportunity for an evidentiary hearing.
The PCR court did not grant one.
Affirmed in part; remanded for an evidentiary hearing in accord with this
opinion. We do not retain jurisdiction.
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