                                NOT FOR PUBLICATION WITHOUT THE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-2214-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANGEL M. ALICEA,

     Defendant-Appellant.
_________________________

                    Submitted September 20, 2018 – Decided June 19, 2019

                    Before Judges Fuentes and Accurso.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 07-06-2114.

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

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Linda A. Shashoua, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Angel Alicea appeals from the denial of his post-conviction

relief (PCR) petition.    The PCR judge denied defendant's petition without

conducting an evidentiary hearing. After reviewing the record before us, we are

satisfied defendant presented sufficient competent evidence to establish a prima

facie case of ineffective assistance of trial counsel. The certifications from two

individuals who have personal knowledge of the incident that led to defendant's

arrest create a sufficient factual basis to warrant an evidentiary hearing under

Rule 3:22-10. The sworn statements of these two individuals create a rational

factual basis from which to infer: (1) defendant's trial counsel was ineffective in

his trial preparation; and (2) there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different. At this evidentiary hearing, defendant is entitled to have trial counsel

explain why he did not assign an investigator to interview the individuals the

State listed as eyewitnesses to the shooting. Trial counsel must also describe

what factors led defendant to abandon his claim of innocence at the conclusion

of the State's presentation of its case in chief, and accept the State's plea offer.

                                          I

      A Camden County grand jury indicted defendant Angel Alicea and his

brother, codefendant Joey Alicea, with one count of murder, N.J.S.A. 2C:11-


                                                                             A-2214-16T1
                                          2
3(a)(1) and (2); one count of first degree attempted murder, N.J.S.A. 2C:5-1,

N.J.S.A. 2C:11-3(a)(1); four counts of second degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); one count of first degree conspiracy to commit murder

and/or aggravated assault, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3(a)(1) and (2),

and/or N.J.S.A. 2C:12-1(b)(1); one count of second degree possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third degree

unlawful possession of a firearm, N.J.S.A. 2C:39-5(b)1; and second degree

possession of a firearm by a person convicted of one of the offenses listed in

N.J.S.A. 2C:39-7(a).

      The trial began on June 4, 2009. The State rested its case in chief on June

16, 2009. After the trial judge denied defendant's motion for a judgment of

acquittal pursuant to Rule 3:18-1, defendant entered into a negotiated agreement

with the State through which he pled guilty to first degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser included offense of murder.

The State agreed to dismiss the remaining charges in the indictment and

recommended that the court sentence defendant to a term of twenty-one years,

subject to an eighty-five percent period of parole ineligibility and five years of


1
  The charges in this indictment arose from an incident that occurred on June 4,
2006. Effective January 13, 2008, the Legislature amended N.J.S.A. 2C:39-5(b)
to make unlawful possession of a handgun a second degree offense.
                                                                          A-2214-16T1
                                        3
parole supervision, as mandated by the No Early Release Act, N.J.S.A. 2C:43-

7.2. The court accepted the plea agreement and sentenced defendant accordingly

on July 2, 2009.

       Defendant appealed the sentence imposed by the trial court through the

summary process available under Rule 2:9-11. After hearing oral argument from

counsel, we affirmed the sentence imposed by the court. State v. Angel M.

Alicea, No. A-5534-09 (App. Div. December 15, 2010). On June 12, 2014, less

than a month before the five-year deadline codified in Rule 3:22-12(a)(1)

expired, defendant filed a pro se PCR petition alleging ineffective assistance of

trial counsel. Pursuant to Rule 3:22-6(a), defendant also submitted an affidavit

of indigency to support his request for representation by the Office of the Public

Defender (OPD). On October 2, 2014, the OPD assigned counsel to represent

defendant in the prosecution of this PCR petition.

       The judge2 assigned to adjudicate defendant's PCR petition entered an

order setting the time for the submission of briefs. In an order entered on

February 10, 2015, the judge dismissed defendant's petition without prejudice

based on PCR counsel's failure to submit his brief within the timeframe

established by the court.      The judge thereafter accepted PCR counsel's


2
    The PCR judge was not the same judge who presided over defendant's trial.
                                                                          A-2214-16T1
                                        4
explanation for his tardiness and reinstated defendant's petition. In the brief he

subsequently submitted, PCR counsel argued defendant's trial counsel provided

ineffective assistance by failing to interview two individuals known to have

personal knowledge of facts related to the shooting that directly undermined the

State's theory of culpability against defendant. In support of this claim, PCR

counsel included certifications from these two individuals in which they

described the nature of the exculpatory evidence and expressly affirmed their

willingness to testify in an evidentiary hearing on matters directly related to

defense counsel's failure to investigate the case.

      Specifically, in her sworn certification, Nicole Moody stated she was an

eyewitness to the shooting and was interviewed by investigators from the

Camden County Prosecutor's Office (CCPO) on the date of the shooting.

Defendant's trial counsel was aware that Moody had personal knowledge of the

shooting because she was listed as a potential witness at trial and her name was

disclosed to all potential jurors during the jury-selection process.

      In her certification in support of defendant's PCR petition, Moody averred

as follows:




                                                                          A-2214-16T1
                                        5
             MOODY CERTIFICATION

      ....

2. In the early morning of June 4, 2006, I was in
Camden, New Jersey, on or around the intersection of
Mount Ephraim Avenue and Thurman Street.

3. I [sic] just outside of the Crown Fried Chicken
restaurant near the intersection of Mount Ephraim
Avenue and Thurman Street when I heard guns [sic]
shots.

4. I saw the person who was firing the shots. He was
a black male. He was wearing a white tee shirt and blue
pants. He had low cut hair. He was average height –
not tall and not short. He had a solid build – not skinny
and not fat.

5. I provided a description of the shooter to the Camden
Police on the same day as the shooting. The description
in paragraph three was the description I provided to the
authorities.

6. I know Angel Alicea. I knew Angel Alicea prior to
June 4, 2006. I am certain that Angel Alicea was not
the person I saw firing a gun on June 4, 2006.

7. After I spoke to the police on June 4, 2006 no one
ever contacted me again about the shooting.

8. No one representing Angel Alicea ever contacted me
about the shooting on June 4, 2006.

9. I would have been willing to speak to an investigator
or defense attorney representing Angel Alicea if I had
been contacted.


                                                            A-2214-16T1
                           6
            10. I would have been willing to appear at the trial of
            Angel Alicea and testify to what I told the Camden
            police and set forth above if I had been called as a
            witness.

            11. I am still willing to appear and testify as a witness
            concerning the shooting on June 4, 2006 if called to do
            so.

      The shooting occurred on June 4, 2006 at four o'clock in the morning. The

record shows that an investigator from the CCPO questioned Moody about the

shooting at 11:22 a.m. that same day. Moody told the investigator that she saw

the body of the eighteen-year-old homicide victim and addressed the shooters

directly as follows:

            MOODY: . . . like yo, why you, like this is a baby layin'
            there, why would you do somethin', you know what I
            mean, like y'all boys gotta leave, put them guns down,
            you know what I mean, ya'll killin' innocent people.

            INVESTIGATOR: Did he say anything to you?

            MOODY: No, he didn’t say nothin' to me.

            INVESTIGATOR: Describe the male.

            MOODY: I guess, he was a black male, he had on a
            white tee shirt and blue pants. That's all I, I really, you
            know what I mean, describe like.

      At trial, the State rested its case in chief without calling Moody as a

witness. As the following excerpt from his opening statement illustrates, the


                                                                          A-2214-16T1
                                        7
unreliability of the State's witnesses' testimony was a central part of defense

counsel's trial strategy:

             Every single one of the witnesses that are going to be
             called has given several statements, has lied to the
             police under oath and then recanted and told another
             story, or they're sitting in jail waiting for a sentence,
             and they've been sitting in jail for two years.

             You'll see one of the witnesses, Jamal Gibbs. He's been
             sitting in jail for two years. Claims that he was having
             conversations with my client, who was waiting to be
             tried for this. . . . And in walks Jamal Gibbs two years
             later and comes up with a story, having access to all this
             man's paperwork. And Jamal Gibbs goes to sentencing
             next week on a drug case, and Jamal Gibbs is in there
             for attempted murder that hasn’t been brought to trial
             yet.

      The State called Jamal Gibbs as an alleged eyewitness to the shooting.

However, in the presence of the jury, the prosecutor began his direct

examination by asking Gibbs if defendant and his brother "were . . . involved in

a drug set or gang?" This prompted immediate objections from both defense

counsel. After initially sustaining defendants' objections, the trial judge decided

to allow the prosecutor to pursue this line of inquiry. The judge ruled the

prosecutor was merely seeking Gibbs's "knowledge as to what he believed." The

judge thus instructed the jury that Gibbs's testimony was not intended to

establish the truth of what actually happened.


                                                                           A-2214-16T1
                                         8
      Based on this ruling, Gibbs testified about an alleged dispute that arose

when "some other party from another part of town entered [Joey Alicea's] house

. . . and supposedly did a home invasion and stole some things for him . . . [.]"

According to Gibbs, the alleged theft involved "some drugs."            When the

prosecutor asked him to elaborate, Gibbs stated: "Supposedly, they entered the

crib [home], stole some drugs and beat his baby mom up, whatever." This again

prompted immediate objections from defense counsel.              After a sidebar

discussion, the trial judge decided to conduct an impromptu N.J.R.E. 104(a)

hearing outside the presence of the jury to determine the admissibility of

testimony from Gibbs related to defendants' "motive" for the shooting under

N.J.R.E. 404(b).

      For the first time at trial, the prosecutor argued that Gibbs's testimony met

"all the prongs of the [State v. Cofield, 127 N.J. 328, 338 (1992)] test. It's

certainly relevant to a material issue in dispute. This is, in fact, the motive for

the entire incident." Defense counsel noted the State did not provide any prior

notice of its intent to introduce N.J.R.E. 404(b) evidence. After considering

Gibbs's testimony developed at the N.J.R.E. 104(a) hearing, the judge decided

to admit this evidence. The trial judge provided the following explanation for

his ruling:


                                                                           A-2214-16T1
                                        9
            In this matter, the State wishes to put forth from this
            witness . . . that drugs were . . . allegedly stolen from
            his house and someone was assaulted. And they're
            alleging that this is - - the motive for the subsequent
            actions by the defendants.

      As the trial proceeded before the jury, the prosecutor eventually asked

Gibbs to describe what he saw with respect to the shooting. According to Gibbs,

although he did not hear what defendants were saying to each other, he saw

defendant, Angel Alicea, "ready to get rowdy. . . [.]" At this point, Gibbs

testified he heard Angel Alicea tell his brother Joey "like, look, man, they right

there." Gibbs provided the following account of the shooting:

            A. [Angel Alicea] put the hoodie on. He had his
            ponytails, whatever. He put his ponytails in the hoodie,
            you know. He put his ponytails in the hoodie and put
            the hoodie over his head like and was - -

            Q. Could you still . . . see the ponytails in the sides of
            the hood?

            A. Well, if you was in front of him, you know what I'm
            saying, you could see it like tucked in whatever.

            Q. Okay. And where did - - where did Angel go then?

            A. He stopped in the street towards - -

            Q. And what street is that? Can you point to where he
            stepped?3

3
  The record shows the State marked as S-1 a map or photograph of the area
that depicts the location of the Crown Fried Chicken restaurant.
                                                                          A-2214-16T1
                                       10
                 ....

           A. He moved into the middle of . . . Mt. Ephraim
           Avenue to right across from the Crown Fried like
           towards where Phil and Lorraine and all the other guys
           were standing at in front of the Chinese store and in
           between the stoop and the check cashing place.

           Q. Did he . . . how far across the street did he go? Did
           he go more or less than halfway?

           A. He went more than halfway. He walked - - actually,
           he walked like right up on him.

           Q. And what did he do at that time?

           A. He started shooting.

           Q. And when you say he started shooting, specifically
           did you see the guns?

           A. Yeah. He had two of them.

                 ....

           Q. Okay. And what kind of guns did he have?

           A. Revolvers.

           Q. Okay. And did he fire both guns?

           A. Yes.

     In support of this PCR petition, defendant submitted the following

certification from Frederick Purnell, who averred he was incarcerated and


                                                                      A-2214-16T1
                                     11
shared living quarters with defendant and Gibbs at the Camden County

Correctional Facility.

                         PURNELL CERTIFICATION

                  ....

            2. In the year 2008 or 2009 I was incarcerated in the
            Camden County jail. Angel Alicea was my cellmate
            during part of the time I was in the Camden county jail.

            3. Jamal Gibbs was also in the Camden jail with myself
            and Angel Alicea during this time.

            4. For a period of time Jamal Gibbs was being housed
            on the same tier as Angel Alicea and I. Gibbs' cell was
            very close to the cell I shared with Angel Alicea.

            5. I have personal knowledge that Jamal Gibbs was
            cooperating with the police by providing information
            about other inmates.

            6. I have personal knowledge that Jamal Gibbs was
            providing information to the police about Angel Alicea.

            7. I have personal knowledge that Jamal Gibbs was
            taking information he got from reading the newspaper
            and telling it to the police as information for which he
            claimed to have direct knowledge.

            8. No one representing Angel Alicea ever contacted me
            about the information that Jamal Gibbs was telling the
            police about Angel Alicea. [Other words not legible.]

            9. I would have been willing to speak to an investigator
            or defense attorney representing Angel Alicea if I had
            been contacted.

                                                                       A-2214-16T1
                                      12
            10. I would have been willing to appear at the trial of
            Angel Alicea and testify about the information I
            provided above about Jamal Gibbs if I had been called
            as a witness.

      Defendant's petition came for oral argument before the PCR judge on

September 16, 2016. After articulating the two-prong standard established by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987), the PCR judge concluded that defendant's trial counsel "was

aware of [Moody's] statement and had the ability to call her as a witness."

According to the PCR judge, because defendants' counsel "had not begun their

case-in-chief . . . [defendant] has failed to establish that their trial counsel 's

performance was deficient." The PCR judge acknowledged that defendant based

his claim of ineffective assistance on defense counsel's failure "to investigate,

and ultimately call to testify, Nicole Moody or Frederick Purnell." The judge

concluded, however, that defendant's claim of ineffective assistance based on

counsel's failure to investigate was "purely speculative." Finally, the judge held

that defendant's decision to plead guilty pursuant to a negotiated agreement with

the State "renders the argument moot."




                                                                           A-2214-16T1
                                       13
                                    II

     Against this backdrop, defendant now appeals raising the following

arguments:

             POINT I

             THE TRIAL COURT ERRED IN DENYING
             DEFENDANT'S     PETITION   FOR    POST-
             CONVICTION RELIEF WITHOUT AFFORDING
             HIM   AN    EVIDENTIARY   HEARING   TO
             DETERMINE THE MERITS OF HIS CONTENTION
             THAT HE WAS DENIED THE RIGHT TO THE
             EFFECTIVE ASSISTANCE OF COUNSEL.

                 A.    The Prevailing Legal Principles
                 Regarding    Claims  Of    Ineffective
                 Assistance Of Counsel, Evidentiary
                 Hearings And Petitions For Post-
                 Conviction Relief.

                 B.    Trial Counsel Rendered Ineffective
                 Legal Representation By Virtue Of His
                 Failure To Investigate Two Potential
                 Witnesses And To Call Them At Trial.

                 C. Trial Counsel Rendered Ineffective
                 Legal Representation By Virtue Of His
                 Failure To Contest The Identification
                 Made By Witness Lorraine Fitzsimmons.

                 D. Defendant Is Entitled To A Remand
                 To The Trial Court To Afford Him An
                 Evidentiary Hearing To Determine The
                 Merits of His Contention That He Was
                 Denied The Effective Assistance Of Trial
                 Counsel.

                                                                A-2214-16T1
                                   14
      Because the PCR judge denied defendant's petition as a matter of law, we

review his decision de novo. State v. Harris, 181 N.J. 391, 415 (2004). The de

novo standard of review also applies to mixed questions of fact and law. Id. at

419-20. Where, as here, an evidentiary hearing was not held, it is within our

authority "to conduct a de novo review of both the factual findings and legal

conclusions of the PCR court." Id. at 421.

      To prevail on a claim of ineffective assistance of counsel under the two-

prong standard in Strickland, defendant must first demonstrate that his trial

counsel's performance was deficient. Strickland, 466 U.S. at 687. Second, he

must show there exists "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694. Our Supreme Court has also held that a PCR court should exercise

its discretionary authority to conduct an evidentiary hearing under Rule 3:22-10

when the material facts underpinning defendant's claim of ineffective assistance

of counsel lie outside the trial record and require the attorney's testimony. State

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

      Because most claims of ineffective assistance of counsel ordinarily

involve legal issues predicated on facts that are not available on direct appeal, a

defendant "must develop a record at a hearing at which counsel can explain the

                                                                           A-2214-16T1
                                       15
reasons for his conduct and inaction and at which the trial judge can rule upon

the claims including the issue of prejudice." State v. Sparano, 249 N.J. Super.

411, 419 (App. Div. 1991) (citations omitted).

            Thus, trial courts ordinarily should grant evidentiary
            hearings to resolve ineffective-assistance-of-counsel
            claims if a defendant has presented a prima facie claim
            in support of post-conviction relief. As in a summary
            judgment motion, courts should view the facts in the
            light most favorable to a defendant to determine
            whether a defendant has established a prima facie
            claim.

            [Preciose, 129 N.J. at 462-63.]

      Here, defendant argues trial counsel's unexplained failure to investigate

and interview Moody and Purnell is sufficient to satisfy the first prong in

Strickland. We agree. Moody was immediately identified as an eyewitness to

the shooting by investigators from the CCPO and was interviewed that same

day. As part of its discovery obligation, the CCPO provided trial counsel a

transcript of her verbatim account of the shooting in which she described her

interactions with the shooter while the eighteen-year-old homicide victim lay on

the ground bleeding from her wounds.          Moody's statement to the CCPO

investigators is materially irreconcilable with the certification she submitted in

support of defendant's PCR petition.        Viewing the facts in the light most

favorable to defendant, Moody's testimony at trial would have significantly

                                                                          A-2214-16T1
                                       16
undermined the State's case. Defendant is entitled to explore her account of the

shooting at an evidentiary hearing. Defendant is also entitled to ask trial counsel

to explain, under oath, why he failed to assign an investigator to interview

Moody. The State's decision to rest its case in chief without calling Moody as

a witness enhances the credibility of her exculpatory account of the shooting.

      We reach the same conclusion with respect to Purnell.        The PCR court

must determine whether defendant's trial counsel was aware of Purnell's

willingness to testify and impugn Gibbs's credibility in the manner he described

in his certification. If counsel was aware, the court must then determine the

reasonableness of any explanation counsel may offer in support his decision not

to assign an investigator to interview Purnell.

      When there is a claim of ineffective assistance of counsel in which a

defendant pled guilty, the issue the PCR court must determine is whether there

is a reasonable probability that, but for trial counsel's failure to interview these

witnesses, defendant would not have pled guilty and would have insisted on

going forward to present a defense at trial. State v. Nunez-Valdez, 200 N.J. 129,

138-39 (2009); see also State v. Smullen, 437 N.J. Super. 102, 110 (App. Div.

2014). The PCR judge must make this determination based on factual findings




                                                                            A-2214-16T1
                                        17
predicated on testimonial evidence presented at an evidentiary hearing as

provided in Rule 3:22-10.

     Reversed and remanded.




                                                                  A-2214-16T1
                                  18
