                                NOT FOR PUBLICATION WITHOUT THE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-0390-17T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RASHEEM WHITE,

     Defendant-Appellant.
____________________________

                    Submitted October 10, 2018 – Decided November 2, 2018

                    Before Judges Yannotti and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 07-11-1402.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Steven M. Gilson, Designated Counsel, on
                    the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an order dated April 13, 2017, which denied his

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)

or (2) (count one); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4 (count two); third-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b) (count three); and second-degree certain persons

not to possess weapons, N.J.S.A. 2C:39-7(b) (count four). Defendant was tried

before a jury.

      The evidence presented at trial established that in the early morning hours

of May 18, 2007, Sherby Tyson was shot to death on a street in Paterson. That

night, Tyson had been driving around and drinking with Shaquese Rawl and

Antonio Johnson. They parked the car, and Tyson and Rawl got out while

Johnson slept in the backseat. Shortly after Rawl returned to the car, a man

approached Tyson and an altercation began. The man shot Tyson three times.

Tyson died before medical assistance arrived.

      In June 2007, the police interviewed Antwan Seegers, who had been

sitting in a parked van on the street at the time of the shooting. He was shown

a photo array and he identified defendant as the shooter. In November 2009, the


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                                       2
trial court conducted a hearing to determine whether Seegers's statement should

be admitted in light of indications that his trial testimony would be inconsistent.

At the hearing, Seegers recanted his identification, but the court found that his

prior statement was reliable and admitted it into evidence.         Seegers's trial

testimony was consistent with his original statement, but he claimed he could

not identify the shooter.

      Rawl also testified at trial and described the shooting. He stated that he

could not identify the shooter, but said the shooter had been wearing a "black

hood" that was "tied all the way tight on [his] face." Ebony Jones testified that

she observed the altercation and shooting from her third-floor apartment

window. She identified defendant as the shooter.

      In addition, Tyson's brother Tyrod Mills testified that in 2006, he was

incarcerated with defendant. According to Mills, they became friends, but

defendant did not know that Mills and Tyson were brothers. Mills testified that

in 2007, he read in a newspaper that defendant had been charged with killing his

brother.   Mills stated that sometime later, he and defendant were again

incarcerated together. Mills stated that defendant told him he shot Tyson three

times in the back during a robbery attempt.




                                                                           A-0390-17T4
                                        3
      The jury found defendant not guilty of murder, as charged in count one,

but guilty of the lesser-included offense of passion/provocation manslaughter,

N.J.S.A. 2C:11-4(b)(2). The jury also found defendant guilty on counts two,

three, and four.

      Shortly after the verdict, but before sentencing, the assistant prosecutor

received a one-page police report, which stated that a man named James Felton

murdered Tyson, and that Felton was later murdered in retaliation. The report

was written by a Passaic County detective, and it related information the

detective received from a confidential informant (CI). The State provided a

copy of the report to defense counsel.

      Defendant then filed a motion for a new trial, based on an alleged violation

of Brady v. Maryland, 373 U.S. 83 (1963). The judge conducted a hearing and

found that the detective had obtained the information from the CI. Defendant

filed a motion to compel disclosure of the CI's identity. The judge refused to

order disclosure and denied defendant's motion for a new trial.

      The trial court sentenced defendant to an aggregate prison term of twenty-

six years, with approximately twenty years and three months of parole

ineligibility.   Defendant appealed from the judgment of conviction dated

February 17, 2010. Defendant raised the following arguments:


                                                                          A-0390-17T4
                                         4
POINT ONE
BY FAILING TO CHARGE THE JURY ON SELF-
DEFENSE, THE TRIAL COURT DEPRIVED MR.
WHITE OF DUE PROCESS AND A FAIR TRIAL.

POINT TWO
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR [A] NEW TRIAL
BASED ON A VIOLATION OF BRADY.

POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT DENIED A MOTION FOR MISTRIAL
BASED ON PROSECUTORIAL MISCONDUCT
DURING SUMMATION WHEN THE STATE DREW
PREJUDICIAL INFERENCES NOT BASED ON
EVIDENCE BY TELLING THE JURY THAT THE
WITNESSES' LIVES WERE ON THE LINE BY
TESTIFYING AGAINST MR. WHITE, THUS
DEPRIVING HIM OF DUE PROCESS AND A FAIR
TRIAL.

POINT FOUR
THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING     THE    STATE    TO    ELICIT
IRRELEVANT,      NON-PROBATIVE,      AND
PREJUDICIAL EVIDENCE THAT DEFENDANT
WAS INCARCERATED.

POINT FIVE
THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING ANTW[A]N SEEGERS TO TESTIFY IN
PRISON CLOTHES OVER DEFENSE OBJECTION.

POINT SIX
THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING THE STATE TO INTRODUCE A
PRIOR CONSISTENT STATEMENT OF ITS OWN

                                            A-0390-17T4
                    5
            WITNESS, IMPERMISSIBLY BOLSTERING THE
            WITNESS'S CREDIBILITY.

            POINT SEVEN
            THE STATE DEPRIVED MR. WHITE OF HIS RIGHT
            TO A FAIR TRIAL BY INTRODUCING A PRIOR
            INCONSISTENT STATEMENT OF ITS OWN
            WITNESS    WITHOUT     SATISFYING     THE
            REQUIREMENTS OF N.J.R.E. 803(a)(1).

            POINT EIGHT
            THE TRIAL COURT ABUSED ITS DISCRETION BY
            IMPOSING    A   MANIFESTLY     EXCESSIVE
            SENTENCE.

      We affirmed the conviction and sentence, but remanded the matter for

further consideration of defendant's motion to compel disclosure of the CI's

identity. State v. White, No. A-3967-09 (App. Div. Mar. 28, 2012) (slip op. at

2). The Supreme Court later denied defendant's petition for certification. State

v. White, 212 N.J. 459 (2012).

      On remand, the trial court again refused to order disclosure of the CI's

identify and defendant appealed. We affirmed the court's order. State v. White,

No. A-3100-12 (App. Div. Oct. 15, 2014) (slip op. at 1). Defendant then filed a

petition for certification with the Supreme Court. The Court denied the petition.

State v. White, 221 N.J. 285 (2015).




                                                                         A-0390-17T4
                                       6
                                       II.

      On April 5, 2016, defendant filed a pro se PCR petition in the Law

Division, and the trial court appointed PCR counsel for defendant. Defendant

alleged that he was denied the effective assistance of counsel because his trial

attorney: (1) advised him not to testify and failed to do a "run through" of his

testimony to determine if he would be a good witness; (2) did not explore an

alibi defense; (3) failed to secure video surveillance footage of the crime scene;

and (4) failed to object at sentencing to the court's consideration of certain

aggravating factors and present a mitigating factor.

      In support of his petition, defendant provided the PCR court with a

certification in which he stated that he was in Philipsburg, Pennsylvania at the

time of the shooting. Defendant claimed his trial attorney told him she did not

want him to testify. He stated that his attorney was not prepared adequately for

trial, and failed to provide him with the necessary information to make an

informed and intelligent decision as to whether to testify.

      Defendant's trial attorney provided a certification to the PCR court, in

which she disputed defendant's claims of ineffective assistance. She stated she

had investigated the case, prepared for trial, and met with defendant




                                                                          A-0390-17T4
                                        7
approximately twelve times prior to jury selection. She asserted that she spoke

to defendant in court during every status conference.

      In addition, counsel stated that she had visited the crime scene, spoke with

the prosecution witnesses, and submitted follow-up investigation requests. She

stated that she met with the prosecuting attorney to ensure she had complete

discovery. She also said that she spoke with defendant every day as the case

was tried, and discussed with him whether he should testify. According to

counsel, defendant chose not to testify and the trial judge questioned him on the

record about that decision.

      Counsel further stated that several months into her representation of

defendant, he indicated for the first time that a certain individual would state she

was with him in Philipsburg, Pennsylvania on the night of the homicide.

Counsel noted, however, that defendant had been incarcerated for assaulting this

individual. Counsel said she investigated defendant's claim but it "did not yield

results" that were "beneficial" to defendant.

      Counsel disputed defendant's claim that she was not prepared for trial.

Counsel also noted that after defendant was found guilty, the prosecutor

provided her with information that was relevant to defendant's case, and she

filed a motion for a new trial. Counsel stated that during that proceeding,


                                                                            A-0390-17T4
                                         8
defendant did not raise any of the claims defendant has raised in the PCR

petition.

      On March 31, 2017, the PCR court heard oral argument on the petition.

Thereafter, the judge placed a decision on the record, which was memorialized

in a letter opinion. The court found that defendant had not established a prima

facie case of ineffective assistance of counsel, and therefore an evidentiary

hearing was not required on the petition.

      The court noted that defendant's "bare assertion" that he was in

Philipsburg, Pennsylvania at the time of the shooting was not sufficient prima

facie evidence of ineffective assistance of counsel. The court also found no

merit in defendant's claim that his attorney was ineffective at sentencing, and

noted that the sentence had been affirmed on appeal.

      In addition, the court found that counsel was not deficient in failing to

obtain surveillance footage of the crime scene. The court pointed out that

defendant had not shown that a security camera even existed in the area of the

shooting on the date in question. The court also rejected defendant's claim that

counsel did not conduct an adequate investigation of the matter.

      The court filed an order dated April 13, 2017, denying PCR. This appeal

followed.


                                                                        A-0390-17T4
                                       9
                                        III.

      On appeal, defendant argues:

             THIS MATTER MUST BE REMANDED FOR AN
             EVIDENTIARY           HEARING    BECAUSE
             DEFENDANT ESTABLISHED A PRIMA FACIE
             CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
             BY EFFECTIVELY INDUCING DEFENDANT NOT
             TO TESTIFY; IN THE ALTERNATIVE, THIS
             MATTER MUST BE REMANDED FOR THE PCR
             COURT TO SPECIFICALLY ADDRESS THIS
             CLAIM. (Partially Raised Below).

      To establish ineffective assistance of counsel, a defendant in a c riminal

matter must satisfy the two-part test established in Strickland v. Washington,

466 U.S. 668, 687 (1984), and later adopted by our Supreme Court in State v.

Fritz, 105 N.J. 42, 58 (1987). Under the test, a defendant first must "show that

counsel's performance was deficient." Strickland, 466 U.S. at 687. Defendant

must establish that counsel's performance "fell below an objective standard of

reasonableness" and that "counsel made errors so serious that counsel was not

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

Id. at 687-88.

       Defendant also must establish that "the deficient performance prejudiced

the defense." Id. at 687. To establish prejudice, "[t]he defendant must show

that there is a reasonable probability that, but for counsel's unprofessional errors,


                                                                             A-0390-17T4
                                        10
the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome" of the matter.

Id. at 694.

         Here, defendant argues that his trial attorney was deficient because she

did not provide him with adequate advice about whether he should testify. The

record shows that defendant elected not to testify, and in her certification,

defense counsel stated she discussed this decision with defendant during the

trial.

         Moreover, defense counsel questioned defendant on the record regarding

his decision.

               [DEFENSE COUNSEL]: Thank you. Mr. White, you
               and I discussed the fact that you have a right to testify
               in your own defense?

               THE DEFENDANT: Yes.

               [DEFENSE COUNSEL]: We've spoken about this case
               numerous time[s] over more than a year that I've been
               representing you?

               THE DEFENDANT: Yes.

               [DEFENSE COUNSEL]: And we continued to speak
               about this case during the trial?

               THE DEFENDANT: Yes.



                                                                           A-0390-17T4
                                         11
      [DEFENSE COUNSEL]: And you and I have discussed
      whether or not you would testify in this case, right?

      THE DEFENDANT: Yes

      [DEFENSE COUNSEL]: And is it your decision now
      based on our conversation not to testify?

      THE DEFENDANT: Yes.

      [DEFENSE COUNSEL]: And you're doing that freely
      and voluntarily?

      THE DEFENDANT: Yes.

      [DEFENSE COUNSEL]: Is anyone forcing you or am I
      forcing you not to testify in this case?

      THE DEFENDANT: No.

      [DEFENSE COUNSEL]: That's your own choice?

      THE DEFENDANT: Yes.

The judge then questioned defendant about his decision not to testify.

      THE COURT: Mr. White, this is the charge that I would
      read to the jury if you chose to have this read. You do
      not have to have this read to the jury but I want you to
      listen to what I would read and then discuss it with your
      attorney for a moment, okay?

      THE DEFENDANT: Yes.

      THE COURT: If you decide[] not to testify, which you
      have done, and you want the jury to be instructed as to
      that, this is what I would say. As you know, Mr. White
      elected not to testify at trial. It is his constitutional right

                                                                        A-0390-17T4
                                   12
            to remain silent. You must not consider for any purpose
            or in any manner in arriving at your verdict the fact that
            the defendant did not testify. That fact should not enter
            into your deliberations or discussions in any manner at
            any time. Mr. White is entitled to have the jury
            consider all the evidence presented at trial. He is
            presumed innocent whether or not he chooses to testify.

            Do you understand the charge?

            THE DEFENDANT: Yes.

            THE COURT: Do you want to discuss it with your
            lawyer for a moment?

            [DEFENSE COUNSEL]: Mr. White, having heard that
            charge, do you agree with me that the [c]ourt should
            read that charge to the jury when it reads all of the
            charges to the jury?

            THE DEFENDANT: Yeah.

      Thus, the record does not support defendant's contention that his trial

attorney did not provide him with adequate advice regarding his decision not to

testify at trial. In addition, even assuming counsel's advice was inadequate,

defendant has not shown that he was prejudiced thereby. Presumably, he would

have testified that he was in Philipsburg, Pennsylvania on the night of the

homicide.

      However, defendant did not provide an affidavit or certification from any

individual to corroborate that claim. In her certification, defense counsel noted


                                                                         A-0390-17T4
                                       13
that she had investigated this potential defense, and the investigation did not

produce any evidence that would have been beneficial to defendant. Moreover,

in our opinion on defendant's direct appeal, we noted that the State had presented

strong evidence that defendant was the person who shot and killed Tyson.

      Thus, defendant failed to show a reasonable probability that the result of

the proceeding would have been different if he had testified.          The record

therefore supports the PCR court's determination that defendant failed to

establish a prima facie case of ineffective assistance of counsel.

      Defendant also argues that the PCR court should have conducted an

evidentiary hearing on his petition. We disagree. The PCR court should conduct

an evidentiary hearing on PCR petition if the defendant presents a "prima facie

case in support of [PCR]," the defendant has raised a "material issue[] of

disputed fact that cannot be resolved by reference to the existing record, and [the

court] determin[es] that an evidentiary hearing is necessary to resolve the claims

for relief." R. 3:22-10(b). Because defendant failed to present a prima facie

case for PCR, and the existing record was sufficient to resolve the claims

presented, an evidentiary hearing was not required.

      Affirmed.




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                                       14
