                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-0477-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GEORGE SANCHEZ,

     Defendant-Appellant.
__________________________

                   Submitted March 23, 2020 – Decided May 19, 2020

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 12-05-0801.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kisha M.S. Hebbon, Designated Counsel, on
                   the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Craig A. Becker, Assistant Prosecutor, of
                   counsel and the brief).

PER CURIAM
      Defendant George Sanchez appeals from a Law Division order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. His

petition claimed counsel provided ineffective assistance by not sufficiently

meeting with him prior to trial and failing to subpoena the assault victim's

medical records. He now argues he was entitled to an evidentiary hearing

because the PCR judge erroneously found: (1) his claims procedurally barred

from review under Rules 3:22-4(a) and 3:22-5, because they were not raised or

were previously adjudicated in his direct appeal; and (2) his claims, on their

merits, did not make out a prima facie case of ineffective assistance of counsel.

We disagree with the judge that defendant's claims were procedurally barred,

but we affirm because we agree with him that the claims are without merit.

                                        I

      To resolve the issues raised in this PCR appeal, we need not discuss the

trial evidence, which is detailed in our twenty-seven-page unpublished opinion

affirming defendant's convictions for fourth-degree false imprisonment, third-

degree aggravated criminal sexual contact while the victim was physically

helpless, second-degree attempted aggravated sexual assault on a helpless

victim, third-degree criminal sexual contact without the victim sustaining severe

injury, second-degree attempted sexual assault, fourth-degree harassment, third-


                                                                         A-0477-18T2
                                       2
degree attempted aggravated assault, and third-degree terroristic threats, as well

as his sentence of an aggregate ten-year prison term subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2. State v. Sanchez, No. A-0392-14 (App. Div.

Jan. 27, 2017) (slip op. at 2), certif. denied, 230 N.J. 541 (2017). On direct

appeal, we remanded, with the State's concession, for the limited purpose of

correcting an error on the judgement of conviction, which did not alter

defendant's sentence.      Accordingly, we limit our focus to defendant's

contentions on this appeal.

                                        II

      In his PCR petition, defendant raised two claims of ineffective assistance

of counsel. First, his certification in support of PCR alleged his trial counsel

provided "inadequate pre-trial investigation" by discussing the case prior to trial

with him only once by means of a video conference at the county jail. Had

counsel visited more, defendant argues, they would have had the proper amount

of time to discuss trial strategies and all possible defenses resulting in "a

stronger case and [he] would have been acquitted at trial." Defendant relies on

our decision in State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000), where

we held "a defendant is entitled to a complete and vigorous defense, requiring

counsel, at the very least, to investigate all substantial defenses available to a


                                                                           A-0477-18T2
                                        3
defendant." (internal quotations removed) (citing United States v. Baynes, 687

F.2d 659, 668 (3d Cir. 1982)). Defendant's certification did not assert what

strategies or defenses were not discussed during their video conference that

should have been pursued at trial.

      Second, defendant contended counsel was ineffective for failing to

subpoena the victim's (his former girlfriend's) hospital emergency room records

detailing the treatment she received the day after her alleged assault, despite

defendant's request that he do so. Defendant asserted the records would have

undermined her claim that he sexually assaulted her because there was no DNA

linking him to a sexual assault and her injuries were not consistent with those of

a sexual assault victim. Defendant further contended the victim's credibility

could have been impeached because the records showed she did not go to the

hospital immediately and, after going, refused a rape kit because she did not

claim to be sexually assaulted. According to defendant, these credibility attacks

would have made the State's prosecution weaker, resulting in his acquittal.

      Upon considering the parties' briefs and oral argument, the PCR judge

denied defendant's petition without an evidentiary hearing for reasons set forth

in a ten-page written opinion. He found defendant's claims were procedurally

flawed under Rule 3:22-4(a) because they could have been – but were not –


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                                        4
raised on direct appeal.      The judge explained defendant had voiced his

dissatisfaction with counsel on several occasions in the trial record, in his

appellate brief, and in a post-trial complaint filed with a District Ethics

Committee. Referencing defendant's direct appeal, the judge noted this court

"held . . . there was no abuse of discretion by [a pre-trial] judge in deciding that

trial counsel could not withdraw as counsel" and defendant's "accusations made

against trial counsel were 'demonstrably false' . . . ." See Sanchez, slip op. at

25-26. Similarly, the judge pointed out defendant had withdrawn his ethics

complaint, stating his trial attorney was a "very competent attorney." The judge

determined defendant offered no explanation why he could not have included

his PCR claims on direct appeal based on the record. He also held Rule 3:22-5

barred defendant's claims "because the issue of his attorney [performance] was

also addressed during the appeal[.]"

      Before us, defendant contends the PCR judge improperly found his

petition procedurally barred under Rules 3:22-4(a) and 3:22-5. Citing State v.

Mitchell, 126 N.J. 565, 584-85 (1992) and State v. Cerbo, 78 N.J. 595, 605

(1979), defendant asserts Rule 3:22-4 is not applicable to his PCR claims

because they fell outside the trial record and denial of relief violates his federal

and state constitutional rights to counsel, due process, and a fair trial. As for


                                                                            A-0477-18T2
                                         5
Rule 3:22-5, defendant asserts it does not bar PCR because neither the trial court

nor this court on direct appeal addressed specific allegations of counsel's

incompetence. The State argues the PCR judge's ruling was correct.

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must show: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition

based on claims of ineffective assistance has the discretion to grant an

evidentiary hearing only if a defendant establishes a prima facie showing in

support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992).

The mere raising of a claim for PCR does not entitle a defendant to an

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).

      A PCR claim is not a substitute for a direct appeal and must hurdle some

procedural bars. R. 3:22-3. "[A] defendant may not employ post-conviction

relief to assert a new claim that could have been raised on direct appeal . . . or

to relitigate a claim already decided on the merits . . . ." State v. Goodwin, 173

N.J. 583, 593 (2002). Under Rule 3:22-4, a defendant is barred from raising any

issue in a PCR petition that could have been raised on direct appeal unless one


                                                                          A-0477-18T2
                                        6
of three exceptions apply. See State v. Nash, 212 N.J. 518, 546 (2013). The

rule provides:

            Any ground for relief not raised in the proceedings
            resulting in the conviction, . . . or in any appeal taken
            in any such proceedings is barred from assertion in a
            proceeding under this rule unless the court on motion
            or at the [PCR] hearing finds:

            (1) that the ground for relief not previously asserted
            could not reasonably have been raised in any prior
            proceeding; or

            (2) that enforcement of the bar to preclude claims,
            including one for ineffective assistance of counsel,
            would result in fundamental injustice; or

            (3) that denial of relief would be contrary to a new rule
            of constitutional law under either the Constitution of
            the United States or the State of New Jersey.

            [R. 3:22-4(a).]

      Rule 3:22-5 provides "[a] prior adjudication upon the merits of any ground

for relief is conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding, . . . or in any appeal taken from

such proceedings." "[A] prior adjudication on the merits ordinarily constitutes

a procedural bar to the reassertion of the same ground as a basis for post-

conviction review." Preciose, 129 N.J. at 476 (citing R. 3:22-5 ). "[A] defendant

may not use a petition for post-conviction relief as an opportunity to relitigate a


                                                                           A-0477-18T2
                                        7
claim already decided on the merits." State v. McQuaid, 147 N.J. 464, 483

(1997) (citation omitted).

        Guided by these principles, we disagree with the PCR judge's

determination that defendant's claims that counsel provided ineffective

assistance – for inadequate pre-trial preparation or investigation and failing to

subpoena the victim's emergency room records – are procedurally barred by

Rules 3:22-4(a) and 3:22-5. The record on direct appeal was not developed

sufficiently to include the facts defendant alleged in his PCR petition to

demonstrate trial counsel's ineffectiveness.    Although counsel's request to

withdraw was denied, which we concluded on direct appeal was not an abuse of

discretion,1 defendant did not specifically assert counsel failed to adequately

prepare for trial because he only met once with defendant, which aided the

State's prosecution to defendant's detriment. Accordingly, the claim was outside

the trial record. Additionally, the claim that counsel failed to subpoena the

victim's emergency room records was outside the trial record. Because neither

the trial court nor this court could have previously addressed these two claims,

defendant's claims were properly reserved for his PCR petition and are not

procedurally barred. See Preciose, 129 N.J. at 460.


1
    Sanchez, slip op. at 25-26.
                                                                         A-0477-18T2
                                       8
                                       III

      Despite finding PCR procedurally barred, the PCR judge had the foresight

to consider the merits of defendant's claims, ultimately finding defendant failed

to establish a prima facie case of ineffective assistance of counsel. Defendant

disagrees with the judge's findings. He argues a remand for an evidentiary

hearing is necessary because counsel was deficient in only meeting with him

once prior to trial and failing to subpoena the victim's emergency room records.

      In considering the merits of defendant's contentions, the judge held

defendant proved neither prong of Strickland's two-prong test. For the first

prong, the judge found defendant "merely ma[de] accusations that are not

supported in his papers. [He] simply makes statements but does not show how

trial counsel's representation is defective." The judge also found it significant

that defendant withdrew his ethics complaint, referring to counsel as a "very

competent attorney." For the second prong, the judge found defendant "failed

to prove how trial counsel's actions caused such a prejudice that he received an

unfair trial." To the contrary, the judge noted counsel's success in acquitting

defendant of first-degree charges for kidnapping and aggravated sexual assault.

      We embrace the PCR judge's ruling, affirming substantially for the sound

reasons set forth in his oral decision. Defendant's arguments lack sufficient


                                                                         A-0477-18T2
                                       9
merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We

add the following brief comments.

      It is well-settled that "in order to establish a prima facie claim, a

[defendant] must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts sufficient to demonstrate

counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.

We agree with the State that "defendant does not provide any factual basis for

why more visits [with counsel] would have led to acquittal." See State v. Porter,

216 N.J. 343, 347-48 (2013) (finding an evidentiary hearing was necessary

because the defendant had asserted a factual basis supported by evidence to

show what the outcome of the investigation could have been). The same applies

with respect to defendant's claim that counsel was deficient for not obtaining the

victim's medical records.     The trial record demonstrates counsel was not

deficient because his cross-examination of the victim revealed she declined to

have a rape kit performed and did not tell hospital staff she was sexually

assaulted.   Because defendant failed to establish a prima facie claim of

ineffective assistance of counsel, the judge did not abuse his discretion in

requiring an evidentiary hearing be held.

      Affirmed.


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                                       10
