STATE OF NEW JERSEY VS. BRANDON STILL (02-03-0562, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-2116-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRANDON STILL,
Defendant-Appellant.
________________________
Argued October 15, 2020 – Decided December 10, 2020
Before Judges Alvarez, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 02-03-0562.
V. Ava Murray argued the cause for appellant Brandon
Still (Murray Law Group, LP, attorneys; Brandon Still,
on the pro se briefs).
John J. Santoliquido argued the cause for respondent
(Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent; John J. Santoliquido, of counsel and on
the brief).
PER CURIAM
On April 7, 2003, defendant Brandon Still, tried as an adult, was found
guilty of second-degree manslaughter, first-degree felony murder, first-degree
robbery, second-degree possession of a firearm for an unlawful purpose, and
third-degree unlawful possession of a handgun. Still was subsequently
sentenced to an aggregate forty-five-year prison term with a thirty-year parole
bar. His conviction was upheld on direct appeal. State v. Still, No. A-5456-02
(App. Div. Apr. 3, 2006), cert. denied, State v. Still, 189 N.J. 648 (2007). His
first petition for post-conviction relief (PCR) was filed on May 8, 2007. Relief
was denied on August 30, 2010, which this court affirmed on appeal. State v.
Still (Still II), No. A-2940-10 (App. Div. Dec. 21, 2012), cert. denied, State v.
Still, 214 N.J. 119 (2013).
Still filed a second PCR petition sometime in 20171 alleging: (1) his
sentence was illegal under Miller v. Alabama, 567 U.S. 460 (2012) and State v.
Zuber, 227 N.J. 422 (2017); (2) a new trial was warranted based upon newly
discovered evidence that trial counsel should have discovered; and (3) trial
counsel was ineffective during plea negotiations. The PCR court denied the
petition.
1
The record fails to indicate the specific date the second PCR petition was filed.
It includes certifications ranging from the dates of September 2, 2016 to July
21, 2017.
A-2116-17T4
2
We affirm because: (1) Still's forty-five-year sentence with a thirty-year
parole bar was not the practical equivalent of life without parole and, thus, is
not contrary to Miller; (2) the newly discovered evidence was not exculpatory
evidence and, thus, not warranting a new trial under State v. Smith, 224 N.J. 36,
49 (2016); and (3) counsel's purported ineffectiveness regarding the State's plea
offer was time-barred under Rules 3:22-4(b) and 3:22-12(a)(2), and even if the
claim was timely, there was no indication counsel's representation was deficient.
I.
The underlying trial evidence is detailed in our unpublished decision
affirming Still's convictions on direct appeal, which we incorporate by
reference. Thus, we briefly mention that during the late hours of March 7, 2001,
Still's friend, Brian Cross, got into a dispute at a small gathering at the
Pleasantville home of Patrice Brooks, Cross's neighbor. Cross left Brooks's
house. About thirty minutes later, Cross with the seventeen-year-old Still2 in
tow, returned to Brooks's house. Within moments, tensions frayed between
Cross and Still with Anthony Taliaferro and Charles Martin over smoking a
blunt (a cigar laced with marijuana). Taliaferro testified this led to Still and
Cross firing handguns and killing Martin. He claimed he heard three shots.
2
Still was born on November 27, 1983.
A-2116-17T4
3
According to Still, who testified, Martin pulled out a gun resulting in him
tussling with Martin and the gun discharged one shot. He denied that he or Cross
possessed a gun. The State presented evidence that Martin was by shot by two
handguns, once by Cross and twice by Still. Still surrendered to law
enforcement three months later. In addition, Still and Cross were charged with
taking $50 from Martin and a blunt.
Still was later tried as an adult and convicted of felony murder and related
offenses. Following merger, he was sentenced to an aggregate forty-five-year
prison term with a thirty-year parole bar. Still was unsuccessful in reversing his
convictions on direct appeal. Still, 189 N.J. 648. His first PCR petition on May
8, 2007, was denied by the PCR court, which we affirmed on appeal. Still II,
slip op. at 1. His second PCR petition was filed denied by the trial court on
December 22, 2017.3
Before us, Still raises the following arguments in his initial brief:
POINT ONE
THE PCR COURT ERRED IN DENYING
APPELLANT'S MOTION FOR THE POST-
CONVICTION RELIEF [AND] NEW TRIAL BASED
3
The PCR court's order is undated, but the accompanying letter opinion is dated
December 22, 2017.
A-2116-17T4
4
UPON NEWLY DISCOVERED EVIDENCE AND
CORRECTION OF AN ILLEGAL SENTENCE.
POINT TWO
THE PCR COURT ERRED IN FAILING TO WEIGH
MITIGATING FACTORS IN ACCORDANCE WITH
MILLER4 WHEN CONSIDERING APPELLANT'S
MOTION[] TO CORRECT AN ILLEGAL
SENTENCE, AS SUCH, APPELLANT IS ENTITLED
TO RETROACTIVE RELIEF UNDER THE RULE
ANNOUNCED IN MILLER[.]
POINT THREE
THE PCR COURT FAILED TO CONSIDER EACH OF
THE FIVE MILLER FACTORS WHICH MITIGATE
IN FAVOR OF REDUCING APPELLANT'S
CURRENT SENTENCE FROM [FORTY-FIVE] TO
[TEN] YEARS IMPRISONMENT[.]
1. THE [APPELLANT'S] CHRONOLOGICAL
AGE AND RELATED IMMATURITY,
IMPETUOSITY, AND FAILURE TO
APPRECIATE RISKS AND
CONSEQUENCES[.]
2. THE [APPELLANT'S] FAMILY AND HOME
ENVIRONMENT THAT SURROUNDS HIM.
3. THE CIRCUMSTANCES OF THE
HOMICIDE OFFENSE, INCLUDING THE
EXTENT OF HIS PARTICIPATION IN THE
CONDUCT AND THE WAY FAMILIAL AND
PEER PRESSURES MAY HAVE AFFECTED
HIM.
4
Miller v. Alabama, 567 U.S. 460 (2012)
A-2116-17T4
5
4. THE INCOMPETENCIES ASSOCIATED
WITH YOUTH, FOR EXAMPLE, HIS
INABILITY TO DEAL WITH POLICE
OFFICERS OF PROSECUTORS (INCLUDING
ON A PLEA AGREEMENT) OR HIS
INCAPACITY TO ASSIST HIS OWN
ATTORNEY.
5. POSSIBILITY OF REHABILITATION.
POINT FOUR
THE APPELLANT[']S SENTENCE IS ILLEGAL
BECAUSE THE SENTENCING JUDGE
CONSIDERED INAPPLICABLE AGGRAVATING
FACTORS IN DETERMINING THE APPROPRIATE
OVERALL SENTENCE[.]
POINT FIVE
THE PCR COURT ERRED IN DENYING
APPELLANT'S MOTION FOR [A] NEW TRIAL
BASED UPON NEWLY DISCOVERED EVIDENCE.
POINT SIX
THE APPELLANT SHOULD NOT HAVE BEEN
PROCEDURALLY BARRED FROM RAISING HIS
CLAIM OF INNEFECTIVE ASSISTANCE OF
COUNSEL AS APPELLANT'S ARGUMENT FALLS
UNDER THE SUPREME COURT'S DECISION IN
MILLER[.]
In his reply brief, Still argues:
A-2116-17T4
6
POINT I
WHILE DEFENDANT'S SENTENCE IS NOT THE
PRACTICAL EQUIVALENT OF LIFE-
IMPRISONMENT, THE FACTORS OUTLINED IN
MILLER V. ALABAMA, SHOULD APPLY TO
DEFENDANT WARRANTING A RESENTENCING
HEARING.
POINT II
DEFENDANT RAISES HIS ISSUE OF INEFFECTIVE
ASSISTANCE OF COUNSEL BASED UPON THE
FACTORS OUTLINED IN MILLER V. ALABAMA,
DEFENDANT SHOULD NOT BE TIME BARRED.
II.
We first address Still's claim that he is entitled to be resentenced because
his sentence as a seventeen-year-old juvenile was the practical equivalent of a
life sentence that is contrary to Miller and State v. Zuber, 227 N.J. 422 (2017).
In Miller, the Supreme Court declared mandatory life imprisonment
without parole for juvenile offenders unconstitutional under the Eighth
Amendment. 567 U.S. at 479. Based upon prior decisions, the Court recognized
that "children are constitutionally different from adults for purposes of
sentencing" because they "have diminished culpability and greater prospects for
reform," and thus "are less deserving of the most severe punishments." Id. at
471 (quoting Graham v. Florida, 560 U.S. 48, 68 (2010)).
A-2116-17T4
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The Miller Court stated that a mandatory life sentence without parole for
a juvenile convicted of homicide:
[1.] precludes consideration of [the juvenile's]
chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to
appreciate risks and consequences.
[2.] It prevents taking into account the family and home
environment that surrounds him—and from which he
cannot usually extricate himself—no matter how brutal
or dysfunctional.
[3.] It neglects the circumstances of the homicide
offense, including the extent of his participation in the
conduct and the way familial and peer pressures may
have affected him.
[4.] Indeed, it ignores that he might have been charged
and convicted of a lesser offense if not for
incompetencies associated with youth—for example,
his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to
assist his own attorneys.
[5.] And finally, this mandatory punishment disregards
the possibility of rehabilitation even when the
circumstances most suggest it.
[567 U.S. at 477-78 (citations omitted).]
Miller did not preclude the possibility of a life sentence for a juvenile but
reaffirmed the determination made in Graham that such a sentence may not be
mandatory and should be "uncommon" given a juvenile's "diminished
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culpability and heightened capacity for change[.]" Miller, 567 U.S. at 479. In
the "rare" situation where the juvenile's "crime reflects irreparable corruption"
or incorrigibility, the court may impose a life sentence. Id. at 479-80 (quoting
Roper v. Simmons, 543 U.S. 551, 573 (2005)).
In Graham, the Court determined that a sentencing court may not make
the determination "at the outset" that the juvenile will forever pose a risk to
society. 560 U.S. at 75. The juvenile must have "some meaningful opportunity
to obtain release based on demonstrated maturity and rehabilitation." Ibid. The
Court left the "means and mechanisms for compliance" with its decision to the
States. Ibid.
In Montgomery v. Louisiana, the Court determined that Miller was
entitled to retroactive effect and held that where a sentence was imposed
contrary to Miller, the constitutional infirmity could be remedied by a
resentencing or consideration for parole. 577 U.S. ___, 136 S. Ct. 71 8, 733-36
(2016). The Court explained: "Allowing those offenders to be considered for
parole ensures that juveniles whose crimes reflected only transient immaturity—
and who have since matured—will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment." Id. at 736.
A-2116-17T4
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In Zuber, our Supreme Court extended the holding of Miller to any life
sentence without parole or its functional equivalent. 227 N.J. at 447-48. The
Court held that when a juvenile is tried as an adult and is subject to a lengthy
aggregate term that is "the practical equivalent of life without parole," the
sentencing court must consider the Miller factors in addition to the aggravating
and mitigating sentencing factors set forth in N.J.S.A. 2C:44-1(a) and (b).
Zuber, 227 N.J. at 429, 445-47, 450.
The Zuber Court did not define a de facto life term by any specific length
and rejected the use of life expectancy tables in deciding whether a lengthy term
is effectively a life term. Id. at 450. The Court instructed sentencing courts to
consider "the real-time consequences of the aggregate sentence." Id. at 447. It
suggested the possibility that a lawfully imposed sentence of life, or the
functional equivalent of life, may later be rendered unconstitutional by
subsequent facts that establish reform and rehabilitation before expiration of the
parole bar. Id. at 451-52. The defendant might "ask the court to review factors
that could not be fully assessed when he was originally sentenced—like whether
he still fails to appreciate risks and consequences, or whether he may be, or has
been, rehabilitated." Id. at 452 (citing Miller, 567 U.S. at 477).
A-2116-17T4
10
Almost two years after Zuber was decided, we addressed the length of
sentence that may qualify as a de facto life term in State v. Bass, 457 N.J. Super.
1, 13-14 (App. Div. 2018), certif. denied, 238 N.J. 364 (2019). We held that a
life sentence with a thirty-five-year parole bar imposed on a juvenile was not
the functional equivalent of a life sentence, and thus, the defendant was not
entitled to resentencing under Zuber, even though the sentencing court had not
considered the Miller factors when it imposed sentence. Ibid. We further held
that any rehabilitative actions the defendant had taken while incarcerated were
matters for the parole board to consider and did not render the sentence
unconstitutional. Id. at 14. We explained:
[D]efendant's sentence is not illegal because he now
claims to be rehabilitated as a result of his
incarceration. We do not minimize defendant's efforts
to rehabilitate himself . . . . However, consideration of
these accomplishments is exclusively the province of
the parole board and not a means of collateral attack on
defendant's sentence—which has been affirmed on
direct appeal.
[Ibid.]
Still, who was thirty-four years old when the second PCR court denied
him relief, argues the court erred in determining his sentence was not the
practical equivalent of life imprisonment without the possibility of parole
because it failed to recognize "a person incarcerated in the prison system from
A-2116-17T4
11
the age of seventeen until forty-seven, is institutionalized, not having
experienced life outside prison walls as an adult." He advances concerns of
quality of life and reintegration into society underlie our Supreme Court 's
decision in Zuber, and he is not amongst the class of individuals deserving a
lengthy prison sentence.
Still cites to Miller, Roper v. Simmons, 543 U.S. 551 (2005) (holding
death penalty sentences for juvenile offenders unconstitutional), and Graham,
explaining that juvenile offenders like himself have diminished
blameworthiness and a high likelihood of rehabilitation. Still asserts his
sentence is considered lengthy under Zuber, thereby mandating he be
resentenced with consideration given to the Miller factors.
In support of his assertion that his sentence should be considered lengthy
under Zuber, Still relies on J.I. v. N.J. State Parole Bd., 441 N.J. Super 564, 572-
73, 584 (App. Div. 2015) (holding a defendant who served around six years in
prison on charges related to the repeated sexual molestation of his daughters was
released after "serving a lengthy sentence"); Trantino v. N.J. State Parole Bd.,
296 N.J. Super. 437, 492 (App. Div. 1996) (Humphries, J., concurring) (ruling
A-2116-17T4
12
the defendant had just been released on parole from a “lengthy sentence"5 for
robbery); and Bergen Cty Bd. of Servs. v. Steinhauser, 294 N.J. Super. 507, 509-
10 (Ch. Div. 1996) (holding that an incarcerated child support obligor serving a
fifteen-year sentence with a seven and one-half-year parole disqualifier for an
undisclosed offense was "serving a lengthy sentence"). Still thus argues if the
sentences in these decisions are considered "lengthy," then his sentence is
"extraordinarily lengthy."
Applying Miller in the context of Zuber, Still contends his sentence is
illegal because the sentencing judge considered aggravating factors three (risk
of re-offense), six (prior criminal record), and nine (need for deterrence), and
no mitigating factors when determining his sentence. N.J.S.A. 2C:44-1(a)(3),
(6) and (9). Citing State v. Dalziel, 182 N.J. 494, 504-05 (2005), for the
proposition that the sentencing judge's deliberative process must include
mitigating sentencing factors set forth in the record, Still argues the Miller
factors should have been considered at his sentencing. Thus, he asserts he
should be resentenced considering: his age (seventeen-years old) at the time of
his offense; his family and home environment; the circumstances of his offense:
5
The length of the defendant's five-year prison sentence is disclosed in State v.
Trantino, 44 N.J. 358, 365 (1965).
A-2116-17T4
13
any incompetency associated with his youth; and the possibility of
rehabilitation. Under these factors, Still contends he should receive a sentence
of no more than ten years' imprisonment.
We find no merit in Still's contention that he received the practical
equivalent of a life sentence without parole. We adhere to our reasoning in Bass,
where we held that an unconstitutional parole-disqualifier term for a juvenile
offender would need to exceed thirty-five years, which is five years more than
Still's thirty-year parole bar. 457 N.J. Super. at 13-14. Still received a forty-
five-year sentence subject to a parole-disqualifier of thirty years for felony
murder that he committed at age seventeen. As the PCR court noted, because
Still is eligible for parole when he is forty-seven years old, his sentence was not
illegal because it was not the practical equivalent of a life sentence without
parole. Still's release upon his parole eligibility is within the province of the
parole board. Hence, any rehabilitative actions Still may have taken while
incarcerated are matters for the parole board to consider and will not render his
sentence unconstitutional. Unlike the defendants in Zuber, who would not be
eligible for parole until they are seventy-two and eighty-five years old,
respectively, 227 N.J. at 428, Still will be eligible for parole when he is forty-
A-2116-17T4
14
seven. Because Still was not entitled to resentencing under Zuber, the
sentencing court had no obligation to consider the Miller factors.
III.
Still argues the PCR court erred in denying his motion for a new trial
based upon newly discovered evidence because it failed to consider the State's
theory for the robbery of money and marijuana was "interwoven"; the jury was
not served with special interrogatories to distinguish their findings on the
alleged robbery of marijuana from cab fare money; and the relaxed requirements
for newly discovered evidence under State v. Nash, 212 N.J. 518, 549-50 (2012).
We briefly discuss the trial testimony before detailing the purported new
evidence. Taliaferro testified that he and Martin took a cab to Brooks's house,
Martin paid the cab fare, received money back, and Martin had about $50 for a
return trip. Atlantic County Prosecutor's Office Investigator Stanley Yeats 6
testified that during Martin's autopsy, the only money on him was eighty cents
in his jeans pocket. Taliaferro testified that an unsmoked blunt was on the table
in the "back living room," when he rushed out of the house upon seeing Still and
Cross brandishing guns. He stated that after Still and Cross fled the house, he
returned to the house but couldn’t see if the blunt was still there because the
6
According to the State, Yeats's name is misspelled "Yates" in the record.
A-2116-17T4
15
house was in disarray. Still testified he fled the scene after Martin was shot but
he did not mention what happened to the blunt or the alleged cab fare money.
Brooks testified for the defense that when she arrived back at her home
following the shooting the police were "right behind [her]." She stated she
walked into the house, went back outside, and went back inside "to the den[,]"
but never mentioned anything about marijuana or blunts. The trial court
charged the jury on felony murder and robbery, stating:
The statute applicable in this case provides that
criminal homicide constitutes murder when it is
committed when the actor . . . is engaged in the
commission of or attempt to commit . . . certain
predicate crimes. And the predicate crime here alleged
is that of robbery. And in the course of such crime . . .
any person causes the death of a person other than one
of the participants.
The State charges that Charles Martin was shot and
killed while . . . defendant . . . was engaged in the
commission of or attempt to commit . . . the predicate
crime of robbery . . . .
Conspiracy to commit the predicate crime of robbery is
a separate offense from robbery and the conspiracy to
rob cannot be a basis for a conviction of felony murder.
....
[A] person is guilty of robbery if in the course of
committing a theft, he either knowingly inflicts bodily
injury or uses force upon another or threatens another
with or purposely puts him in fear of immediate bodily
injury, or either -- or commits or threaten to commit
certain crimes . . . .
A-2116-17T4
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So[,] in order . . . to find . . . defendant guilty of robbery,
the State is required to prove . . . defendant . . . was in
the course of committing a theft. Secondly, that while
in the course of committing the theft, . . . defendant
either knowingly inflicted bodily injury or used force
upon another . . . . As I said, the State must prove . . .
defendant was in the course of committing a theft . . .
and . . . that act is considered to be in the course of
committing a theft if it occurs in an attempt to commit
the theft during the commission of the theft itself . . . .
[T]heft is defined as the unlawful taking . . . of . . .
property of another with purpose to deprive him
thereof. . . .
A person acts purposely with respect to the nature of
his conduct or a result thereof if it is his conscious
object to engage in conduct of that nature or to cause
such a result.
Over thirteen years later, in a September 2, 2016 certification submitted
in support of Still's second PCR petition, Brooks 7 stated:
2. During the police investigation and the trial, I was
not asked for information concerning the presence of a
box of marijuana cigars, aka, "blunts," in my mother's
house on the night of Charles Martin's death.
[3]. When I returned to the house that night, I observed
a box of "blunts" lying next to the body of Charles
Martin. I removed the box from the room before the
police officers arrived and then discarded it outside.
7
Although Brooks now uses the last name of Vega, for the sake of convenience
we refer to her by her former last night; we mean no disrespect.
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[4]. I only recently revealed this additional information
within the last year.
Still asserts Yeats's testimony that he discovered a pack of Philly Blunts,
is not in conflict with Brooks's certification because "the blunt removed from
the living room table by co-defendant Cross. . . was abandoned and collected by
[Brooks] along with the other blunts lying next to Martin and then discarded
outside." Still cites to State v. Lindsey, 245 N.J. Super. 466, 474 (App. Div.
1991), arguing the State was required to show beyond a reasonable doub t that
there was intent to permanently deprive the owner of the property.
Citing Nash, 212 N.J. at 550, Still asserts trial counsel was ineffective in
not obtaining the discoverable exculpatory evidence. He further contends, citing
State v. Carter, 85 N.J. 300, 314 (1981), if the evidence was previously
discoverable but not found, it proves his trial counsel was incompetent.
Regarding the State's theory that he could be found guilty of robbery for
taking either the blunt or the cab fare money, Still, citing State v. N.I., 349 N.J.
Super. 299, 319 (App. Div. 2002), argues "[a] guilty verdict must be reversed if
a defendant is charged under two separate theories, there is insufficient evidence
to support one of those theories, and a jury is directed to return a general verdict
that does not differentiate."
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We discern no merit to Still's contentions. The PCR court correctly stated
that to obtain a new trial based on newly discovered evidence, Still must show
the new evidence is: "(1) material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the trial and not discoverable
by reasonable diligence beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted." Smith, 224 N.J. at 49
(quoting Nash, 212 N.J. at 549).
The trial evidence regarding the theft of the blunt does not support Still's
contention that Brooks's certification constitutes new evidence and warrants a
new trial. The evidence showed that Taliaferro was in possession of a blunt and
Martin was in possession of about $50 when he was shot by Still and Cross.
Taliaferro testified the blunt was abandoned on a table when he exited the room
before the shooting, but he didn’t know where the blunt was when he returned
after the shooting because the house was in disarray. Yeats's testified that
following the shooting, the approximately $50 that Martin allegedly possessed
was not in his jeans pocket. Yeats also testified he discovered a pack of Philly
Blunt cigars at the scene of the shooting.
In her certification, Brooks states she was never questioned about "a box
of marijuana cigars, aka, 'blunts,'" in the house on the night of the shooting.
A-2116-17T4
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Brooks continues that when she returned to the home after the shooting, she
"observed a box of 'blunts'" next to the victim and removed "the box" from the
home and discarded it before police arrived. Her statement implies that the
stolen property at issue was a box or pack of Philly Blunts rolled into marijuana
cigarettes, when in fact the State claims there was only one partially smoked
blunt taken by Still or Cross.
If presented to a jury, this new information would first, be contradictory
to Brooks's testimony of finding a box of Philly Blunt cigars at the scene of the
shooting, and second, it would not be exculpatory because the stolen property at
issue in the robbery was one blunt and about $50 in cash, not “a box” of Philly
Blunts. Because Brooks certification does not satisfy Smith's three-part test to
determine whether newly discovered evidence warrants a new trial, the PCR
court properly rejected Still's request for a new trial.
IV.
We last address Still's claim that he followed trial counsel's ineffective
advice not to accept the State's plea offer of an eighteen-year prison term subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2. Still argues trial counsel
rejected the plea offer without consulting him and effectively chose to go to trial
instead and claim self-defense. In support, he points to three letters trial counsel
A-2116-17T4
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wrote to him between 2001 and 2002, discussing trial preparation, his prison
term exposure, plea discussions, and trial strategy. He certified that had he fully
understood the ramifications of not accepting the plea, he would have accepted
it, and that from "the very start of th[e] case" he "acknowledged that [he] was
responsible for shooting [the victim]." Still further points to receipt of a
November 3, 2015 letter from trial counsel – not included in the record, nor
apparently presented to the PCR court – stating he "did not recognize ‘the
enormity of the charges’ that [he] faced." Thus, Still asserts counsel "now
agrees, as set forth in his letter, . . . [that] my youth and up-bringing as well as
my lack of understanding of the law hindered my ability to fully appreciate the
implications of rejecting the State’s plea offer . . . ." We are unpersuaded.
To establish a prima facie case of counsel ineffectiveness, Still must
satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668,
687 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987), requiring that: (1)
counsel's performance was deficient; and (2) the deficiency prejudiced the
defense. The court properly found Still's claim was untimely because it was
raised in a second PCR petition approximately ten years after his initial petition.
Rule 3:22-4(b)(1) provides that a "second or subsequent petition for post-
conviction relief shall be dismissed unless . . . it is timely under R. 3:22-
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21
12(a)(2)." The petition must "allege[] on its face" one of the three criteria: (1)
the petition "relies on a new rule of constitutional law . . . that was unavailable
during the pendency of any prior proceedings[,]" (2) "the factual predicate for
the relief sought could not have been discovered earlier through the exercise of
reasonable diligence," or (3) the "petition alleges a prima facie case of
ineffective assistance of counsel" of prior PCR counsel. R. 3:22-4(b)(2).
Still argues he was not able to raise this argument in his first petition in
2007 because it wasn’t until the 2017 constitutional ruling in Zuber, that our
courts were mandated to consider the detrimental effects of decision-making
processes of juvenile offenders and could not sentence them to the practical
equivalent of a life sentence without parole. Still’s argument was properly
rejected by the PCR court, because as noted above, Still's sentence was not the
practical equivalent of life in prison without parole as proscribed by Miller and
Zuber. Moreover, we agree with the court that Still "d[id] not account for his
failure to raise th[e] particular ineffective assistance claim regarding plea
negotiations in his first PCR [petition], which included three other claims of
ineffective assistance on the part of his trial counsel."
As to the merits of Still's claim, we likewise agree with the court that there
was no prima facie case of counsel's ineffectiveness and there was no indication
A-2116-17T4
22
that counsel's performance prejudiced him and deprived him of a fair trial. As
the court correctly found, counsel's three letters to Still between 2001 and 2002
"demonstrate[d] that [Still’s] trial counsel made him aware of the plea offers"
and "[t]herefore [his] claim d[id] not allege a factual predicate that could not
have been discovered earlier through the exercise of reasonable diligence."
Regarding counsel's purported November 3, 2015 letter stating Still could not
appreciate the State's plea offer, it is not part of the record; thus, it is a bald
assertion that does not "demonstrate counsel's alleged substandard
performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
Thus, an evidentiary hearing was not warranted. State v. Preciose, 129 N.J. 451,
462 (1992).
To the extent we have not addressed any remaining arguments, we
conclude they are without sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
Affirmed.
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