                                NOT FOR PUBLICATION WITHOUT THE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.


                                                A-0116-18T3
                     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
                                        18
[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
                          19
            [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.


                                                                          A-0116-18T3
                                       22
                    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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