                        NOT FOR PUBLICATION WITHOUT THE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-0369-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JASON J. HARRELL,

     Defendant-Appellant.
___________________________________________

              Submitted May 22, 2018 – Decided June 22, 2018

              Before Judges Yannotti and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              03-12-1552.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David A. Gies, Designated
              Counsel, on the briefs).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for   respondent  (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant Jason J. Harrell appeals from an order entered by

the Law Division on May 12, 2016, denying his second petition for

post-conviction relief (PCR). We affirm.

                                I.

     Defendant was charged with first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2), and possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a). Defendant was tried before a jury,

which found him not guilty of murder, but guilty of the lesser-

included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a),

and the weapons charge. At sentencing, the judge merged the

offenses, and sentenced defendant for the manslaughter to a thirty-

year term of imprisonment, with an eighty-five percent period of

parole ineligibility pursuant to the No Early Release Act, N.J.S.A.

2C:43-7.2.

     Defendant appealed from the judgment of conviction dated July

30, 2004. On appeal, defendant argued:

          I. THE TRIAL COURT'S FAILURE TO CHARGE SELF-
          DEFENSE CONSTITUTES A DENIAL OF DEFENDANT'S
          RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL
          AND REQUIRES REVERSAL OF THE DEFENDANT'S
          CONVICTION. U.S. CONST. AMENDS. V, VI AND XIV;
          N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.
          (Partially Raised Below).

          II. THE DEFENDANT'S SENTENCE OF [THIRTY] YEARS
          FOR AGGRAVATED MANSLAUGHTER, WHICH WAS [TEN]
          YEARS   BEYOND   THE  PRESUMPTIVE   TERM,   IS
          UNCONSTITUTIONAL AS IT IS IN VIOLATION OF THE
          DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL

                                2                           A-0369-16T1
            RIGHTS TO TRIAL BY JURY, DUE PROCESS OF LAW
            AND A FAIR TRIAL. U.S. CONST. AMENDS V, VI AND
            XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9
            AND 10.

            III. DEFENDANT'S SENTENCE IS MANIFESTLY
            EXCESSIVE,   UNDULY   PUNITIVE   AND  NOT   IN
            CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

            IV. PROSECUTORIAL COMMENT SUGGESTING THAT
            [DEFENDANT] TAILORED HIS TESTIMONY TO THE
            STATE'S   EVIDENCE   VIOLATED  [DEFENDANT'S]
            CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL,
            TO CONFRONT WITNESSES, TO PRESENT WITNESSES
            AND EVIDENCE IN HIS DEFENSE, AND TO A FAIR
            TRIAL. (Not Raised Below).

       We affirmed defendant's conviction, but remanded the matter

to the trial court for resentencing pursuant to State v. Natale,

184 N.J. 458 (2005). State v. Harrell, No. A-1090-04 (App. Div.

Nov.   2,   2006)   (slip   op.   at   19).   The   Supreme   Court    denied

defendant's petition for certification. State v. Harrell, 192 N.J.

480 (2007).

       In our opinion on defendant's direct appeal, we noted that

defendant's conviction arose from a confrontation between a group

of Hispanic males and a group of black males during the early

morning hours of August 24, 2003. Harrell, No. A-1090-04 (slip op.

at 9-12). During that confrontation, defendant shot a weapon six

times and killed a bystander, Juan Gomez. Id. at 3.




                                       3                              A-0369-16T1
          On remand, the trial court reconsidered defendant's sentence.

The court filed an amended judgment of conviction dated February

1, 2008, stating that a different sentence was not warranted.

          On November 7, 2007, defendant filed a pro se petition for

post-conviction relief (PCR). Defendant claimed his trial attorney

was ineffective because counsel did not challenge the prosecutor's

comments in summation and seek a curative instruction. The PCR

court assigned counsel for defendant, and in a supplemental brief,

PCR       counsel      raised      additional        issues         of     trial      counsel's

ineffectiveness,            specifically,          the   failure         to    call     certain

witnesses and to file a motion to exclude a knife and tie rod due

to    a    lack   of    scientific         evidence.     The    PCR      court     denied    the

application         and    later      denied   defendant's           pro      se   motion    for

reconsideration.

          Defendant appealed and argued PCR counsel was ineffective

because counsel had not pursued claims defendant raised in his pro

se    petition.        According      to    defendant,        PCR    counsel       advanced     a

meritless claim and poorly articulated other claims. We affirmed

the   denial      of      PCR   and   the    denial      of    defendant's         motion    for

reconsideration. State v. Harrell, No. A-0340-08 (App. Div. Nov.

15, 2010) (slip op. at 8). The Supreme Court denied defendant's

petition for certification. State v. Harrell, 205 N.J. 318 (2011).



                                               4                                        A-0369-16T1
                                      II.

      On October 14, 2011, defendant filed a second PCR petition.

He alleged trial counsel was ineffective because counsel failed

to review discovery, investigate, and interview certain witnesses.

He also alleged he was denied the effective assistance of PCR

counsel and PCR appellate counsel. Defendant asserted, among other

things, that PCR appellate counsel failed to argue on appeal

defendant's claims of ineffective assistance of trial counsel.

      The PCR court denied all relief. In a letter opinion dated

June 8, 2012, the court found that all of defendant's claims were

barred under Rule 3:22-4(b) and Rule 3:22-12(a)(2). Defendant

appealed from the order denying PCR. We held defendant's claims

regarding PCR appellate counsel were not procedurally barred, and

we remanded for further proceedings on those claims. State v.

Harrell, No. A-5933-11 (App. Div. Dec. 9, 2013) (slip op. at 10).

We also directed the PCR court to reconsider defendant's request

for assignment of counsel. Ibid.

      On   remand,    the   PCR   court       assigned   counsel    to   represent

defendant. On May 10, 2016, the court placed an oral decision on

the   record.   The    court      determined      that    Rule     3:22-5    barred

defendant's claim that trial counsel was ineffective for failing

to contact and interview eyewitnesses to the incident and secure

their attendance at trial. The court also determined that Rule

                                          5                                 A-0369-16T1
3:22-5 barred defendant's claims that PCR counsel and PCR appellate

counsel were ineffective for failing to contact the aforementioned

witnesses.

     The court further determined that Rule 3:22-5 did not bar

defendant's claim that he had been denied the effective assistance

of PCR appellate counsel. The court found, however, that defendant

did not present a prima facie case of ineffective assistance of

PCR appellate counsel, and decided that an evidentiary hearing was

not required. The court entered an order dated May 10, 2016,

denying defendant's second petition for PCR. This appeal followed.

     On   appeal,   defendant's   PCR     appellate   counsel   raises   the

following points:

           [POINT I]
           THE PCR COURT ERRED WHERE IT DID NOT CONDUCT
           AN EVIDENTIARY HEARING TO DETERMINE WHETHER
           THE DEFENDANT'S ATTORNEYS HAD A STRATEGIC
           REASON FOR NOT USING THE WITNESS STATEMENTS
           IN DEFENDING HIM.

           [POINT II]
           THE DEFENDANT INCORPORATES IN SUMMARY FASHION
           THE ARGUMENTS BELOW.

     In   his   supplemental   pro   se   brief,   defendant    raises   the

following arguments:

           POINT I
           THIS COURT      SHOULD EXERCISE ITS ORIGINAL
           JURISDICTION    PURSUANT TO [RULE] 2:10-5 AND
           REVIEW THIS    MATTER DE NOVO IN AN EFFORT TO
           BRING IT TO     A CLOSE DUE TO ITS PROTRACTED
           HISTORY.

                                     6                              A-0369-16T1
         POINT II
         DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE
         ASSISTANCE OF COUNSEL[] WHEN "APPELLATE PCR
         COUNSEL" FAILED TO RAISE ON APPEAL "TRIAL
         COUNSEL'S" INEFFECTIVENESS AND FAILED TO
         PROPERLY      ARGUE      "PCR      COUNSEL'S"
         INEFFECTIVENESS [AND] THE PCR II COURT ERRED
         IN FINDING "THERE'S NO REASONABLE PROBABILITY
         THAT   APPELLATE  [PCR]   COUNSEL'S   MISSING
         ARGUMENTS WOULD HAVE INFLUENCED THE APPELLATE
         DIVISION'S DECISION."

         POINT III
         THIS COURT SHOULD EXTEND THE REQUIREMENTS OF
         COURT [RULE] 3:22-6(d), RUE AND WEBSTER TO
         APPLY TO "APPELLATE PCR COUNSEL" OR MODIFY
         and/or ADD LANGUAGE TO REQUIRE "APPELLATE PCR
         COUNSEL" TO APPROPRIATELY RAISE ALL ISSUES
         PRESENTED IN THE COURT BELOW FOR EXHAUSTION
         PURPOSES; THE PCR II COURT ERRED IN REFUSING
         TO EXTEND THE PRINCIPLES OF [RUE] AND
         [WEBSTER]; [RULE] 3:22-6(D), OR A VARIATION
         OF THE SAME TO APPLY TO APPELLATE PCR COUNSEL;
         AND ERRED IN FINDING THAT APPELLATE PCR
         COUNSEL CAN "WINNOW OUT WEAKER ARGUMENTS ON
         APPEAL["] AND FOCUS ON ONE CENTRAL ISSUE OR
         AT MOST A FEW KEY ISSUES.

         POINT IV
         PCR II COUNSEL WAS INEFFECTIVE FOR FAILING TO
         RAISE THE ONLY VIABLE ISSUES TO THE PCR II
         COURT AND VIOLATED [RULE] 3:22-1(D). (Not
         Raised Below).

                              III.

    We turn first to defendant's contention that on remand, the

PCR court erred by failing to conduct an evidentiary hearing on

his petition.

    A defendant is entitled to an evidentiary hearing on a PCR

petition if the defendant presents a prima facie case in support

                               7                          A-0369-16T1
of PCR, the court determines there are material issues of fact

that cannot be resolved based on the existing record, and the

court finds that an evidentiary hearing is required to resolve the

claims presented. R. 3:22-10(b); see also State v. Porter, 216

N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

        To establish ineffective assistance of counsel, a defendant

must satisfy the two-prong test established 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). Under Strickland,

the defendant must first show that "counsel's performance was

deficient." 466 U.S. at 687. The defendant must establish that

"counsel made errors so serious that counsel was not functioning

as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Ibid.

        The   defendant    also   must   show   that   counsel's    "deficient

performance prejudiced the defense." Id. at 687. The defendant is

required to establish that "counsel's errors were so serious as

to deprive [him or her] of a fair trial, a trial whose result is

reliable."      Ibid.     The   defendant    must   establish   a   reasonable

probability that but for counsel's unprofessional errors, the

result of the proceeding would have been different. Id. at 694. A




                                         8                             A-0369-16T1
reasonable probability is a "probability sufficient to undermine

confidence in the outcome." Ibid.

     Here,   defendant   argues    that    his   trial    attorney       was

ineffective because he failed to interview certain witnesses who

provided statements regarding the shooting to detectives in the

Middlesex County Prosecutor's Office (MCPO). Defendant contends

he was denied the effective assistance of PCR appellate counsel

because in the appeal from the denial of his first petition for

PCR, appellate counsel did not raise and effectively argue this

issue.

     We note that defendant testified at trial that in the early

morning hours of August 24, 2003, his friend Brian Weeks was

arguing with Mario Caprio on a street in New Brunswick, and they

were surrounded by a group of Hispanic males and a group of black

males. Defendant pulled up to the scene in his truck and he

observed the crowd surrounding Weeks. Weeks told defendant to get

a gun he had previously given to Tryshon Stokes. Defendant said

he retrieved the gun "to make everyone get away from the area and

that was it."

     Defendant   returned   to   the   scene   and   exited   his    truck.

According to defendant, Weeks was surrounded by "a bunch of

people." A person who "had" Weeks would not move, so defendant

fired the gun downwards in front of that individual. Defendant

                                   9                                A-0369-16T1
stated he did not try to shoot or kill anyone. He said he did not

aim the gun specifically at any person, and the person whom he

shot "was all the way down the street." Defendant testified that

"there was no way I intended to shoot this guy."

     Defendant further testified that Weeks grabbed his arm and

that was what "made [him] shoot to the left." He stated he did not

know if Weeks "saw the situation like [he] saw it or he wanted me

to stop shooting, but when I fired the gun that's when [Weeks]

grabbed my arm or tried to take the gun from me or whatever he was

trying to do."

     On cross-examination, defendant stated that he fired the

first shot in the air and there was no reaction from the group.

He fired another shot into the air and the crowd did not respond

to that shot. Defendant said he then dropped his arm and fired

straight ahead in the direction of the group of people who were

surrounding   Weeks.   Defendant        stated   that   at   this    point,

"[e]veryone started to run around."

     Defendant testified that Weeks was no longer surrounded. He

admitted, however, that he fired two more shots. He stated that

Weeks grabbed his arm and pulled his arm down, but he conceded

that he pulled the trigger two more times. Defendant said that he

did not intentionally shoot Gomez.



                                   10                               A-0369-16T1
       On re-direct, defendant again insisted that he accidentally

shot Gomez. He stated that after Weeks grabbed his arm, two more

rounds went off, but he did not know Weeks was going to grab his

arm. He claimed Weeks exerted force upon his arm.

       Earlier in the trial, Weeks had testified for the prosecution.

Weeks stated that during the melee, he saw defendant arrive on the

scene in his car, pull out a gun, and start shooting in his

direction. Weeks testified that he heard "like eight shots" and

ran. During cross-examination, Weeks was asked if he grabbed

defendant's arm or saw anyone grabbing defendant while the gun was

going off. Weeks replied, "No."

       On appeal, defendant argues that his trial attorney was

ineffective because he failed to interview certain witnesses who

purportedly    would   have   corroborated   his   statement   that   Weeks

grabbed his arm, causing him to aim the weapon in the direction

of the victim. In support of this argument, defendant submitted

statements that several witnesses provided to detectives in the

MCPO.1

       In his statement, J.G. said he was a witness to the shooting.

J.G. stated that "one of the guys" on the scene started shooting,

and that person was shooting at Carpio. The victim was hit when



1
    We use initials to identify the witnesses.

                                   11                             A-0369-16T1
he was running from the scene. J.G. said, "then . . . the guy just

spinned him around where I was like his back shooting."

     L.J. told the detectives that on the night of the incident,

he was with Weeks and others in defendant's vehicle. Defendant

parked the vehicle and they got out. They saw Weeks and others

arguing. L.J. said there was "so much commotion" and then he heard

shots. He saw defendant firing the gun into the crowd. He stated,

"I seen the dude grab his arm." He identified the "dude" as "the

Spanish kid."

     J.M. stated that he was with defendant on the night of the

incident. They went to several clubs, and later came upon a crowd

of people on George Street. J.M. stated that he saw Weeks and the

"dude that got shot." J.M., defendant and others got out of

defendant's vehicle and observed a crowd. He saw defendant firing

a gun. J.M. said defendant "was going wild" with the gun. He saw

defendant shoot the gun, but he did not see defendant shoot the

victim. After the shooting, J.M. got back into the vehicle with

defendant, and they drove off.

     J.S. told the detectives he saw a vehicle drive up and four

persons get out. J.S. said Carpio was talking in the street with

a male who could have been black or Hispanic. J.S. saw the person




                                 12                        A-0369-16T1
shooting at a person named "Joell."2 He was "shooting, bang, bang."

J.S. recalled five shots directed "straight at Joell." The shooter

told the person who was arguing with Carpio, "let's go, let's go."

The shooter then got into the vehicle.

      Notwithstanding defendant's arguments to the contrary, we are

convinced defendant failed to show he was denied the effective

assistance of counsel because his trial attorney did not interview

or present any of these witnesses at trial. Defendant asserts

these witnesses would have corroborated his testimony that Weeks

grabbed his arm, causing him to direct a shot at the victim.

      However, as we stated previously, Weeks testified at trial

that he did not grab defendant's arm during the shooting. Although

defendant testified to the contrary, the additional witnesses

defendant has identified would not have directly corroborated

defendant's testimony. As noted, J.G. stated he saw someone spin

defendant around, but he did not indicate when this occurred or

whether it had any effect upon the direction in which defendant

was   shooting.   In   addition,   L.J.   said   he   saw   someone   grab

defendant's arm, but he did not state when this occurred or that

it caused defendant to aim his shot at the victim.




2
  The record shows that a person named "Joel" was involved in the
fracas; however, he was not the victim.

                                   13                             A-0369-16T1
      Furthermore, J.G.'s and L.J.'s statements indicate that it

may   have   been   strategically     disadvantageous   to    elicit     trial

testimony from them. J.G. stated that he saw defendant shooting

directly at Carpio, and L.J. said he saw defendant shooting into

the crowd. In addition, J.M. stated that defendant "was going

wild" with the gun, and J.S. said defendant was directing his

shots directly at a person named "Joell."

      In any event, none of these additional witnesses would have

provided significant support to the defense. Here, defendant was

charged with murder under N.J.S.A. 2C:11-3(a)(1) and (2), and the

trial judge also instructed the jury on aggravated manslaughter

and reckless manslaughter, as lesser-included offenses. As stated,

the jury found defendant guilty of aggravated manslaughter.

      Criminal homicide constitutes aggravated manslaughter when

the   defendant     "causes   death   under   circumstances    manifesting

extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). On

the other hand, reckless manslaughter can be found when the

defendant    causes    the    death    of   another   person    by      acting

"recklessly." N.J.S.A. 2C:11-4(b)(1). "The distinction between the

two crimes turns on the degree of probability that death will

result from the defendant's conduct." State v. Galicia, 210 N.J.

364, 378 (2012).



                                      14                               A-0369-16T1
     A person may be found guilty of aggravated manslaughter if

"it is probable that death will result" from defendant's conduct.

Ibid. (citing State v. Simon, 161 N.J. 416, 507 (1999)). However,

homicide   constitutes   reckless    manslaughter   "when   it   is   only

possible that death will result. Ibid. (citing State v. Curtis,

195 N.J. Super. 354, 364 (App. Div. 1984)).

     In this case, the PCR judge noted that defendant was the only

individual who fired a gun, and he fired the gun six times into

the crowd. The judge correctly observed that even if the jury

believed Weeks grabbed defendant while defendant was firing the

gun, thereby causing him to shoot in an unintended fashion, this

did not preclude the jury from finding, based on the totality of

the circumstances, that defendant acted with extreme indifference

to human life.

     Moreover, testimony from the additional witnesses consistent

with the statements they provided to the MCPO would not have

precluded the jury from finding that when defendant shot the gun

six times into the crowd, the death of some person was probable

rather than merely possible. Thus, even if counsel erred by failing

to interview and present testimony from the additional witnesses,

defendant failed to show that it was reasonably probable the jury

would have found him not guilty of any offense related to Gomez's



                                    15                            A-0369-16T1
death, or not guilty of aggravated manslaughter and guilty of

reckless manslaughter.

     Therefore, defendant failed to establish he was denied the

effective assistance of trial counsel. For essentially these same

reasons,   defendant   did     not    present      a   prima   facie   case    of

ineffective assistance of PCR counsel or PCR appellate counsel.

The PCR court correctly determined that an evidentiary hearing was

not required on defendant's second PCR petition. Porter, 216 N.J.

at 354 (citing R. 3:22-10(b)).

     We    have   considered    the        other   arguments    presented      in

defendant's   counseled   brief,      and    the   arguments    defendant     has

presented in his pro se supplemental brief. We are convinced all

of these arguments lack sufficient merit to warrant discussion in

this opinion. R. 2:11-3(e)(2).

     Affirmed.




                                      16                                A-0369-16T1
