                                NOT FOR PUBLICATION WITHOUT THE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-0722-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

REGINALD ANTHONY,

     Defendant-Appellant.
_____________________________

                    Submitted December 2, 2019 – Decided January 14, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 11-04-0702.

                    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 (Lucille M.
                    Rosano, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      A jury convicted defendant Reginald Anthony of "second-degree

conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2(b)(1)[, and]

acquitted defendant of the remaining counts of the indictment, including

burglary, robbery, murder, felony-murder and related weapons offenses." State

v. Anthony, 443 N.J. Super. 553, 557 (App. Div. 2016). After he "granted the

State's motion to sentence defendant as a persistent offender, N.J.S.A. 2C:44-

3(a), [the trial judge] imposed the maximum extended term of twenty years'

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." Ibid. We affirmed

defendant's conviction but remanded the matter for resentencing, concluding the

judge erred by finding aggravating sentencing factors one and two applied. Id.

at 576; see N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and circumstances of the

offense"); N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and seriousness of harm

inflicted on the victim, including whether or not the defendant knew or

reasonably should have known that the victim of the offense was particularly

vulnerable or incapable of resistance due to advanced age").

      A different judge resentenced defendant on remand. Without finding

aggravating factors one and two, but finding aggravating factors three, six, nine




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                                       2
and twelve,1 and no mitigating factors, the judge imposed the same sentence.

We heard defendant's appeal on our Excessive Sentence Oral Argument calendar

and affirmed the sentence. There is no evidence in the record that defendant

sought further review by the Supreme Court.

      Defendant filed a timely petition for post-conviction relief (PCR), alleging

trial and appellate counsel rendered ineffective assistance (IAC). The court

appointed PCR counsel, who filed a supplemental certification and brief on

defendant's behalf. Defendant alleged trial counsel failed "to object and correct

the . . . judge when he relied heavily on the facts of the case, and charges[] I was

acquitted of. . . . I was being punished for crimes I did not commit[,] and my

trial attorney should have objected." 2

      The PCR judge, who was also the resentencing judge, denied the petition

without an evidentiary hearing. In a lengthy written opinion that followed a

brief oral decision, the judge noted that unlike the trial judge, he did not apply


1
   N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (6) (extent and seriousness of
defendant's prior record); (9) (the need to deter defendant and others), and (12)
(the offense was committed against a person sixty years of age or older). The
trial judge had also found these aggravating factors when he originally imposed
sentence.
2
   Defendant also claimed trial counsel was ineffective for failing to seek
dismissal of the complaint prior to indictment. The PCR judge addressed this
issue fully, and defendant has not raised it on appeal.
                                                                            A-0722-18T1
                                          3
aggravating factors one and two. The judge rejected defendant's claim that

counsel failed to argue mitigating factors applied at the time of resentencing,

noting he specifically considered mitigating factors, including defendant's

behavior and accomplishments while in prison. See, e.g., State v. Randolph,

210 N.J. 330, 355 (2012) (noting that on remand for resentencing following

appeal the judge should consider additional evidence of a defendant's post-

conviction efforts at rehabilitation). The judge concluded defendant failed to

meet the two-prong 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), and entered an order denying the PCR petition. This appeal followed.

      Before us, defendant raises the following point:

            POINT I

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY      HEARING       BECAUSE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
            FOR NOT OBJECTING TO THE RESENTENCING
            COURT'S IMPLICITLY CONSIDERING THE
            CHARGES FOR WHICH DEFENDANT WAS
            ACQUITTED.[3]



3
  Defendant presents no argument regarding appellate counsel's performance.
An issue not briefed is waived. See Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2020).
                                                                       A-0722-18T1
                                       4
We affirm substantially for the reasons expressed by the PCR judge in his

written opinion. We add only the following brief comments.

      To establish a viable claim of ineffective assistance of counsel, a

defendant must show "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, 105

N.J. at 52 (quoting Strickland, 466 U.S. at 687). Additionally, a defendant must

prove he suffered prejudice due to counsel's deficient performance. Strickland,

466 U.S. at 687. A defendant must show by a "reasonable probability" that the

deficient performance affected the outcome.        Fritz, 105 N.J. at 58.      "A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, 466

U.S. at 694; Fritz, 105 N.J. at 52). Our rules anticipate the need to hold an

evidentiary hearing on IAC claims, "only upon the establishment of a prima

facie case in support of post-conviction relief[.]" R. 3:22-10(b).

      We agree with the judge's assessment of counsel's performance at the

resentencing hearing. The transcript reveals that counsel prepared a sentencing

memorandum for the court, he specifically referred the judge to defendant's

rehabilitative efforts while in prison, and he argued specific mitigating




                                                                         A-0722-18T1
                                        5
sentencing factors applied. That the judge rejected these mitigating factors does

not demonstrate deficient performance by counsel.

      Defendant's claim that counsel should have objected to the judge's

recitation of the criminal events, and his use of those events to support his

finding of aggravating sentencing factors, is without merit.         We affirmed

defendant's sentence so, even if counsel had objected at the resentencing

hearing, there is no reasonable probability that the sentence would have been

different. The failure to raise a losing argument does not amount to deficient

performance. State v. O'Neal, 190 N.J. 601, 619 (2007); see also State v. Echols,

199 N.J. 344, 361 (2009) ("[T]he failure of trial counsel to object to the

comments . . . could not lead to the conclusion that there is a reasonable

probability that, but for the errors of trial . . . counsel, the outcome would have

been different."). In reality, defendant's petition presented a second challenge

to the sentence itself, and, as such, is procedurally barred. See R. 3:22-5 (barring

PCR relief based on a claim that was adjudicated on its merits in prior

proceedings).

      Affirmed.




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