                                NOT FOR PUBLICATION WITHOUT THE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-1518-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VASIL W. HEISLER,

     Defendant-Appellant.
___________________________

                    Submitted May 29, 2019 – Decided June 28, 2019

                    Before Judges Hoffman and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County and Mercer County,
                    Indictment No. 08-01-0111.

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

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Randolph E. Mershon, III, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Vasil Heisler appeals from an October 17, 2017 Law Division

order denying his petition for post-conviction relief (PCR). We affirm.

                                        I.

      We set forth the facts surrounding defendant's conviction in our opinion

on defendant's direct appeal. State v. Heisler, No. A-2238-12 (App. Div. July

23, 2015) (slip op.). In brief, Joshua Hahn, a detective for the Mercer County

Sherriff's Office, witnessed an altercation involving defendant. As Det. Hahn

approached, defendant "[raised] his hands up and stated [to Det. Hahn] . . . what

the fuck are you [going to] do[?]" Det. Hahn responded, "I'm a sheriff's officer,

calm down." He did not show a badge or identification and wore only "a pair of

cargo shorts . . . and boots" as he was off duty.

      Defendant briefly turned and walked away, but then turned back and

began "bouncing around . . . like a boxing dance." He then struck Det. Hahn in

the head with a "wooden handle revolver." Det. Hahn immediately ordered

defendant to show his hands and get to the ground; instead, defendant shot Det.

Hahn in the chest.

      Police charged defendant with (1) criminal attempt to commit murder,

first-degree, contrary to N.J.S.A. 2C:11-3; 2C:5-1; and 2C:2-6; (2) possession

of a firearm for an unlawful purpose, second-degree, contrary to N.J.S.A. 2C:39-


                                                                          A-1518-17T3
                                        2
4(a); and (3) unlawful possession of a weapon, third-degree, contrary to N.J.S.A.

2C:39-5(b). In January 2012, defendant was tried before a jury and found guilty

on all counts. Defendant received an aggregate sentence of fifty-five years

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

      We affirmed defendant's conviction and sentence. State v. Heisler, slip

op at 2. Our Supreme Court denied certification. State v. Heisler, 224 N.J. 244

(2016).

      In September 2016, defendant filed a petition for PCR alleging his trial

counsel performed ineffectively by failing to pursue a diminished capacity

defense and for inducing defendant not to testify at his trial. The PCR judge

denied defendant's petition in a written opinion.

      On appeal, defendant raises the following arguments:

            POINT I - THIS MATTER MUST BE REMANDED
                      FOR AN EVIDENTIARY HEARING
                      BECAUSE DEFENDANT
                      ESTABLISHED A PRIMA FACIE CASE
                      OF TRIAL COUNSEL'S
                      INEFFECTIVENESS, IN THAT TRIAL
                      COUNSEL FAILED TO PURSUE A
                      DIMINISHED CAPACITY DEFENSE
                      AND INDUCED DEFENDANT NOT TO
                      TESTIFY.

                         A. Trial Counsel Failed To Pursue A
                            Diminished Capacity Defense.


                                                                         A-1518-17T3
                                        3
                         B. Trial Counsel Induced Defendant Not
                            To Testify.

            POINT II - THIS MATTER MUST BE REMANDED
                       FOR AN EVIDENTIARY HEARING
                       BECAUSE DEFENDANT
                       ESTABLISHED A PRIMA FACIE CASE
                       OF APPELLATE AND PCR COUNSELS'
                       INEFFECTIVENESS FOR FAILING TO
                       PURSUE THE TRIAL COURT'S NOT
                       EXPLORING DEFENDANT'S
                       REQUEST FOR SELF-
                       REPRESENTATION.
                       (Not Raised Below).
                                        II.

      We utilize a two-prong test to evaluate claims of ineffective assistance of

counsel. State v. Fritz, 105 N.J. 42 (1987) (adopting Strickland v. Washington,

466 U.S. 668 (1984)). To succeed, a defendant must establish both that: (1)

counsel made errors so egregious as to not function effectively; and (2) the

defect in performance prejudiced defendant's rights to a fair trial such that there

exists a "reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland, 466 U.S. at

687, 694. The judge should grant an evidentiary hearing "if [the] defendant has

presented a prima facie claim in support of post-conviction relief." State v.

Preciose, 129 N.J. 451, 462 (1992).




                                                                           A-1518-17T3
                                        4
      Although the judge "should view the facts in the light most favorable to

the defendant," State v. Jones, 219 N.J. 298, 311 (2014), the "defendant must

allege specific facts and evidence supporting his allegations," State v. Porter,

216 N.J. 343, 355 (2013), and "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. 1999). We review the decision of the PCR judge to

forgo an evidentiary hearing de novo. State v. Harris, 181 N.J. 391, 421 (2004).

      Defendant first argues counsel failed to investigate a defense of

diminished capacity. "[C]ounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular investigations

unnecessary." Porter, 216 N.J. at 353 (alteration in original) (quoting State v.

Chew, 179 N.J. 186, 205 (2004)). Further, an attorney has a duty "to conduct a

prompt investigation of the circumstances of the case and explore all avenues

leading to facts relevant to guilt and degree of guilt or penalty." State v. Russo,

333 N.J. Super. 119, 139 (App. Div. 2000).

      Defendant claimed he had used alcohol and drugs "around [the] time of

[the] incident" and had a "long-standing history of mental disease or defect."

He claims this history "not only would have negated the 'intent' elements of [his]




                                                                           A-1518-17T3
                                        5
alleged crimes, but in the alternative, a showing of his mental illness or de fect

would have constituted a substantial mitigating factor . . . ."

      However, defendant fails to identify any evidence he suffered from such

impairments during the incident.      Defendant has provided no certification,

affidavit, or expert opinion as to how his problems affected him or would have

prevented him from forming the requisite intent required to commit the alleged

crimes. We therefore find defendant's claims amount to "bald assertions" of

ineffective assistance that do not entitle him to an evidentiary hearing.

Cummings, 321 N.J. Super. at 170.

      Second, defendant argues his trial counsel wrongfully induced him into

not testifying on his own behalf. Defendant's claims are factually unsupported.

He does not say what would have been his testimony. He does not say that he

would have even testified. Nor does he claim that counsel forced him not to

testify or prevented him from testifying; his only argument is that counsel gave

"bad advice" – a "warning not to testify lest [his own] prior convictions be

admitted."

      Further, the record shows the decision not to testify was made by

defendant.    During trial, the judge addressed defendant directly and he

repeatedly stated he did not want to testify:


                                                                          A-1518-17T3
                                         6
Q:   . . . . Do you understand you can give up the right
     to remain silent and you're allowed to testify and
     you can testify if that's what you want to do?

A:   Yes.

Q:   Do you understand if you choose to testify, you'd
     be subject to examination. Your attorney would
     ask you questions, the attorney for the State
     would ask you questions, and you'd have to
     answer all the questions that I ruled were
     permissible questions. Do you understand that?

A:   Yes.

     ....

Q:   Do you understand, we talked about this
     yesterday, there's some prior convictions and I've
     already determined the State would be able to
     bring those up during your cross-examination.
     Do you understand that?

A:   Yes.

     ....

Q:   Have you made a decision about whether you
     want to testify?

A:   Yes.

Q:   And what is your decision?

A:   I'm not going to testify.

Q:   Okay. Did you make that decision on your own?


                                                           A-1518-17T3
                           7
            A:    Yes.

            Q:    That's your own decision, right?

            A:    Yes.

            Q:    Did anyone force you in any way to make you
                  make that decision one way or the other?

            A:    Well, the State kind of like, they, you know, they
                  kind of outweighed everything else against me
                  so, you know, it would be foolish for me to get
                  up there and make a fool of myself.

            Q:    So let me just make sure. So what you're saying
                  based upon what the State has presented in this
                  case, you've reviewed it with [your attorney],
                  what they've presented and based upon that you
                  feel you don't want to go on the stand?

            A:    Yeah. It would be prejudicial toward me so I'd
                  rather not.

            Q:    I'm not putting words in your mouth when I gave
                  that kind of summary?

            A:    I'm putting words in my mouth.

      The record reflects the trial court fully informed defendant of his right to

testify, defendant consulted with counsel on the issue, and decided he would

exercise his right not to take the stand. See State v. Savage, 120 N.J. 594, 631

(1990). The record reveals no basis for granting PCR.




                                                                          A-1518-17T3
                                        8
      Defendant also argues for the first time on appeal that he received

ineffective assistance based on both appellate and PCR counsels' failure to

pursue defendant's request for self-representation.

      Initially, because defendant did not raise the issue below, we consider the

argument waived as to appellate counsel. See R. 3:22-4. Likewise, an argument

for ineffective assistance of PCR counsel is not ripe for appeal as the argument

could not have been raised before the PCR court.

      Nonetheless, the trial record demonstrates that the court adequately

addressed defendant's application for self-representation.

            Q:    Mr. Heisler, the last time as you were leaving you
                  said you want to represent myself and I told you,
                  you have to make an application and the way I
                  viewed it, I viewed it as you were upset at the
                  time you shouted that out, I couldn't decide
                  whether you really meant that or that's just
                  something you were angry and you said that and
                  so I didn't rule upon that. I didn't say yeah, you
                  can have your own attorney. You can represent
                  yourself. I didn't say you had to stay with [your
                  attorney]. I didn't rule upon it. I decided what
                  you said, I didn't know if you meant it.

            A:    There's no application for self-representation.

            Q:    You're not making that application?

            A:    No.



                                                                         A-1518-17T3
                                       9
            Q:     You're happy with [your attorney] representing
                   you?

            A:     Yes.

      Because defendant abandoned this argument at the trial level, neither

appellate nor PCR counsel could have been deficient for failing to raise the

argument, as it clearly lacks support in the record. See State v. O'Neal, 190 N.J.

601, 618-19 (2007) (attorney's performance cannot be deemed deficient for

failing to raise a frivolous argument).

      The record also fully supports the PCR judge’s determination that

defendant failed to establish a prima facie case of ineffective assistance of

counsel, and that the existing record provided an adequate basis for resolution

of defendant's claim. R. 3:22-10(b). Therefore, an evidentiary hearing was not

required. See Jones, 219 N.J. at 311 (noting that an evidentiary hearing on

a PCR petition is only required when the alleged facts, "when viewed in the light

most favorable to [defendant], are sufficient to demonstrate a reasonable

likelihood of success on [the] PCR claim").

      To the extent we have not specifically addressed any of defendant's

arguments, we find them to be without sufficient merit to warrant discussion in a

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



                                                                          A-1518-17T3
                                          10
Affirmed.




                 A-1518-17T3
            11
