                             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                        NOT FOR PUBLICATION WITHOUT THE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-0506-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

T.M.,

     Defendant-Appellant.
______________________________

              Submitted November 15, 2016 – Decided May 31, 2017

              Before Judges Koblitz and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              05-01-0010.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Nancy A. Hulett,
              Assistant Prosecutor, of counsel and on the
              brief).


PER CURIAM
     Defendant T.M.1 appeals from the Law Division's July 9, 2015

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

without an evidentiary hearing.      He presents the following single-

point argument:

           THIS   MATTER    MUST   BE  REMANDED   FOR   AN
           EVIDENTIARY     HEARING    BECAUSE    DEFENDANT
           ESTABLISHED A PRIMA FACIE CASE OF TRIAL
           COUNSEL'S     INEFFECTIVE     AND    INADEQUATE
           INVESTIGATION.

For the reasons that follow, we affirm.

     In light of the issue raised on appeal, we briefly discuss

the prior procedural history, including the evidentiary hearing

ordered by our Supreme Court resulting from defendant's direct

appeal of his conviction and sentence.

     On November 15, 2005, defendant was convicted by a jury of

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count

one), first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)

(count two), first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a) (count three), second-degree sexual assault, N.J.S.A.

2C:14-2(b) (count four), second-degree sexual assault, N.J.S.A.

2C:14-2(b) (count five), second-degree endangering the welfare of

a child, N.J.S.A. 2C:24-2(a) (count six), first-degree endangering



1
  Pursuant to Rule 1:38-3(d)(10), we use initials to protect the
identity of the sexual assault victim.


                                    2                               A-0506-15T4
the welfare of a child, N.J.S.A. 2C:24-4(b)(3) (count seven), and

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(b)(4)   (count   eight).   On   February   6,   2006,   defendant   was

sentenced to an aggregate term of thirty-years in prison with a

fifteen-year period of parole ineligibility.

     On defendant's direct appeal of his conviction and sentence,

we affirmed, except for count seven, which we molded to a second-

degree conviction.     State v. T.M., No. A-6028-05 (App. Div. May

28, 2009).

     The State's petition for certification was granted.            State

v. T.M., 200 N.J. 369 (2009).          Defendant then filed a cross-

petition for certification claiming he now had possession of his

signed written consent form to search his computer and camera that

did not check the box waiving his right to be present during the

search.   In response, our Supreme Court remanded the matter to the

trial court "to reconsider whether defendant waived his presence

during the search and, if he did not, whether the evidence seized

was properly admitted."      State v. T.M., 201 N.J. 143, 143-44

(2010).   The Court also retained jurisdiction.      Id. at 144.2




2
  The State's subsequent motion for reconsideration on the basis
that the defendant's prior testimony authenticated the consent to
search form was denied on February 10, 2010.

                                   3                             A-0506-15T4
     On remand, the same judge who presided over the trial and

sentenced defendant, conducted an evidentiary hearing.    Defendant

testified that on the night of January 15, 2004, three police

officers arrived at his house and then transported him to police

headquarters   to   interrogate   him.   Defendant   contended   the

questioning stopped when police placed in front of him "a consent

form to search his house for . . . a computer and a camera."

Defendant asserted that he signed the form, but did not check the

box waiving his right to be present during the search of the

computer and camera, and that police assured him that he could be

present.

     Defendant's forensic expert witness, Karl Schaffenberger,

opined that, based upon his examination of the consent to search

forms produced by defendant and the State, there was no evidence

indicating that defendant's consent form was tampered with to

remove the check mark waiving defendant's right to be present

during the search of the computer and camera.   With respect to the

State's consent form, Schaffenberger believed that there were

three pens used on the form, and the pen used by defendant to sign

his name, was not the same pen used to check the box on the form.

However, he could not determine who used the pen to check the box

waiving defendant's right to be present at the search.



                                  4                         A-0506-15T4
      Middlesex County Prosecutor's Investigator, George Trillhaase

testified that he discussed the consent to search form with

defendant before defendant signed it.           He recalled that either he

or defendant checked the waiver box after he told defendant that

he had the right to be present during the search.                     However,

Trillhaase could not recall how many pens were used when the

consent form was executed.

      On March 12, 2013, the judge issued a twenty-five page written

decision upholding the search.           The judge found that the "[State]

has provided sufficient[,] clear[,] and positive testimony to show

that the document in question was not a forgery, and that the

defendant's consent to search was freely given and likely included

a waiver of his right to be physically present during the execution

of the search[.]"     The judge reasoned that, despite not finding a

"clear explanation for how [defendant] wound up with a [signed

consent] form that has an unchecked waiver box," the testimony

sufficiently "show[ed] that [defendant] waived his presence during

the search and that the search of his home and the evidence

produced was properly admitted[.]"             Relying upon State v. King,

44 N.J. 346, 352-53 (1965), which set forth factors to determine

if   the   consent   to   search    is   coerced,   the   judge   noted    that

defendant's    consent     was     voluntary    because   he   gave   consent



                                         5                             A-0506-15T4
believing        the    police    would     not     find    contraband,    and     he

affirmatively assisted the police officers with the search.

     In addition, the judge determined that defendant and his

expert were not credible.                 To highlight defendant's lack of

believability, the judge noted that during a pre-trial motion to

suppress the computer and camera search and seizure, defendant did

not contend he exercised his right to be present during the search

by leaving a box on the consent form unchecked.

     Defendant sought to appeal the decision, but the Supreme

Court, which had retained jurisdiction, denied his cross-petition

for certification on October 18, 2013.                   State v. T.M., 216 N.J.

13 (2013).         Three months later, the Court determined that the

State's petition for certification was "improvidently granted,"

and entered an order dismissing the State's appeal.

     On January 10, 2014, defendant filed a pro se PCR petition

claiming ineffective assistance of counsel due to trial counsel's

failure to investigate the issue of the voluntariness of the

consent     to    search    his    computer       and    camera.    Defendant     was

subsequently       assigned       counsel,     who      submitted   a   brief     and

incorporated defendant's pro se arguments.

     Following argument on July 9, 2015, the PCR judge issued an

order   and      oral   decision    denying       defendant   relief    without   an

evidentiary hearing.          The judge determined that the PCR request

                                           6                               A-0506-15T4
was procedurally deficient because adjudication on the issue of

voluntariness and scope of the consent to search was previously

litigated during the remanded evidentiary hearing, and therefore

may not be re-litigated on a PCR petition pursuant to Rule 3:22-

5.   Moreover, the judge reasoned that even if he granted defendant

a hearing concerning his contention that counsel was ineffective

with respect to the consent to search, the hearing would have

produced   the     same    outcome   as        the    March    2010     hearing,     that

"[defendant's] consent was validly given to [conduct the] search

without him being present."

      Before us, defendant contends that the PCR judge erred in

denying    an    evidentiary    hearing         because       his     "claim   was      not

predicated on the consent to search form, which was previously

litigated,      but   rather   concerned            trial   counsel's       failure     to

investigate the consent search."                We disagree and conclude that

the judge was correct in denying PCR without an evidentiary

hearing.

      A   court    reviewing    a    PCR       petition       based    on   claims      of

ineffective       assistance   should          an    evidentiary       hearing     if    a

defendant establishes a prima facie showing in support of the

requested relief.         State v. Preciose, 129 N.J. 451, 462 (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.

                                           7                                     A-0506-15T4
154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).        When

determining whether to grant an evidentiary hearing,

the PCR court must consider the facts in the light most favorable

to the defendant to determine if a defendant has established a

prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing

should be conducted only if there are disputed issues as to

material facts regarding entitlement to PCR that cannot be resolved

based on the existing record.    State v. Porter, 216 N.J. 343, 354

(2013).

     "[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.      He must allege facts sufficient

to   demonstrate   counsel's    alleged   substandard   performance."

Cummings, supra, 321 N.J. Super. at 170.       When claiming defense

counsel inadequately investigated, the defendant "must assert the

facts that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification." Ibid. (citing

R. 1:6-6).

     "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 brought pursuant

to this rule or prior to the adoption thereof, or in any appeal

                                  8                           A-0506-15T4
taken from such proceedings."      R. 3:22-5.    PCR proceedings are not

an opportunity to re-litigate claims already decided on the merits

in prior proceedings.    State v. McQuaid, 147 N.J. 464, 483 (1997)

(citing R. 3:22-5).    If an issue has been determined on the merits

in a prior appeal, it cannot be re-litigated in a later appeal of

the same case, even if of constitutional dimension.         Id. at 483-

84; State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992),

certif. denied, 133 N.J. 436 (1993).

     Here, defendant's bald assertions did not establish a prima

facie case of ineffective assistance of counsel, and did not

warrant    an   evidentiary    hearing.    Likewise    unpersuasive     is

defendant's attempt to re-fashion his arguments from the prior

remand evidentiary hearing to overcome the procedural bar of Rule

3:22-5.    There is no material distinction between the arguments

raised then and now on PCR appeal.        Defendant's contention that

trial counsel failed to investigate the validity of the consent

to search form is procedurally barred as the consent to search

form was fully litigated on the merits at the remand evidentiary

hearing.    Moreover, even if we consider defendant's arguments,

they are without merit.       R. 2:11-3(e)(2).

     Affirmed.




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