                        NOT FOR PUBLICATION WITHOUT THE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-1754-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KENNETH BACON-VAUGHTERS,

     Defendant-Appellant.
________________________________

              Submitted September 11, 2017 – Decided September 15, 2017

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              09-07-1467.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (William Welaj, Designated
              Counsel, on the brief).

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Mary R.
              Juliano, Assistant Prosecutor, of counsel and
              on the brief).

              Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Kenneth Bacon-Vaughters appeals the trial court's

denial of his petition for post-conviction relief ("PCR").                 We

affirm.

      At a jury trial held over nine days in March 2011, defendant

was   found     guilty    of   felony   murder,   N.J.S.A.   2C:11-3(a)(3),

robbery, N.J.S.A. 2C:15-1, conspiracy to commit robbery, N.J.S.A.

2C:5-2 and 2C:15-1, and possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4.         He was sentenced for those offenses

to a forty-year term of imprisonment, subject to a period of parole

ineligibility mandated under the No Early Release Act ("NERA"),

N.J.S.A. 2C:43-7.2.

      On his prior unsuccessful direct appeal, defendant raised the

following issues:

              POINT I

              THE COURT'S REFUSAL TO CHARGE THE STATUTORY
              AFFIRMATIVE DEFENSE TO FELONY MURDER DEPRIVED
              THE DEFENDANT OF THE RIGHT TO PRESENT A
              DEFENSE, DUE PROCESS AND A FAIR TRIAL.

              POINT II

              THE CHARGES AS A WHOLE WERE DEFECTIVE BECAUSE
              THE COURT FAILED TO INSTRUCT THE JURY ON THE
              ELEMENTS OF CRIMINAL ATTEMPT IN A FACT PATTERN
              WHERE THE SUBSTANTIVE OFFENSE WAS NEVER
              COMPLETED (Not raised below).

              POINT III

              THE DEFENDANT'S MARCH 12 STATEMENT SHOULD HAVE
              BEEN SUPPRESSED BECAUSE DETECTIVES CONTINUED

                                        2                           A-1754-15T3
          TO QUESTION THE DEFENDANT AFTER HE REQUESTED
          AN ATTORNEY.

          POINT IV

          THE COURT ERRED IN ADMITTING THE VICTIM'S
          STATEMENT, "KENNY MIKE SHOT ME," BECAUSE IT
          WAS UNTRUE AND UNDULY PREJUDICIAL. FURTHER,
          THE INSTRUCTION LIMITING ITS USE FAILED TO
          NEUTRALIZE THE PREJUDICE.

                 A. THE COURT ERRED IN ADMITTING THE
                 STATEMENT BECAUSE ITS PROBATIVE VALUE WAS
                 OUTWEIGHED BY ITS PREJUDICE.

                 B.   THE   LIMITING   INSTRUCTION   WAS
                 MISLEADING AND FAILED TO NEUTRALIZE THE
                 PREJUDICE.

          POINT V

          THE DEFENDANT'S SENTENCE OF 40 YEARS, WITH AN
          85% PAROLE BAR, WAS MANIFESTLY EXCESSIVE.

          PRO SE POINT I

          THE LOWER COURT ERRED WHEN IT DID NOT ADDRESS
          APPELLANT'S CLAIMS OF THE FAILURE OF THE
          POLICE TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT
          TO COUNSEL AMOUNTED TO THE CONSTRUCTIVE DENIAL
          OF   COUNSEL   AND   SEPARATELY,   INEFFECTIVE
          ASSISTANCE OF COUNSEL, BOTH IN VIOLATION OF
          THE FIFTH, AND SIXTH, AMENDMENTS OF THE UNITED
          STATES CONSTITUTION.

    We   found   these   contentions   to   lack   merit   and   affirmed

defendant's convictions and sentence.       State v. Bacon-Vaughters,

No. A-583-11 (App. Div. Feb. 25, 2013).      The Supreme Court denied

defendant's petition for certification.      216 N.J. 5 (2013).




                                  3                               A-1754-15T3
     In his ensuing PCR petition, defendant alleged that his trial

counsel was ineffective in several respects, thereby depriving him

of his constitutional rights.      Defendant further asserted that a

"pattern of cumulative error" at trial deprived him of his right

to a fair trial.

     Judge John R. Tassini, who did not preside over defendant's

jury trial, heard oral argument on the PCR application on August

25, 2015 without conducting an evidentiary hearing.

     Judge Tassini denied defendant's petition.         In his detailed

written statement of reasons accompanying his order, Judge Tassini

concluded that defendant has not presented a prima facie case of

ineffective assistance of counsel.        He therefore found that no

evidentiary hearing was necessary.

     More specifically, Judge Tassini ruled that defendant's trial

counsel during the pretrial Miranda1 suppression hearing did not

fail to adequately investigate or probe into defendant's statement

to the police.     The judge found that, in fact, trial counsel had

"vigorously cross examined" witnesses at the hearing, and had

called   appropriate   witnesses   on   defendant's   behalf.   Despite

defendant's contrary assertions, Judge Tassini concluded there was




1
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

                                   4                            A-1754-15T3
no evidence that his trial counsel had lied to him about his co-

defendants' cooperation with the State.

    Additionally, Judge Tassini found that defendant had not made

a prima facie showing that his trial counsel had pressured him to

not testify on his own behalf.        The judge noted in this regard

that the trial court had engaged in "extensive colloquy" with

defendant about his decision not to testify, and that there were

apparent tactical reasons for counsel to keep defendant off the

witness stand.

    Lastly,   Judge   Tassini   found    that   defendant's   remaining

arguments complaining of procedural and evidentiary errors were

barred under Rule 3:22-4, because those issues could have been

raised on direct appeal.

    On his present appeal, defendant raises the following issues

for our consideration:

         POINT I

         THE TRIAL COURT ERRED IN DENYING THE
         DEFENDANT'S PETITION FOR POST CONVICTION
         RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
         HEARING TO FULLY ADDRESS HIS CONTENTION THAT
         HE    DID   NOT    RECEIVE   ADEQUATE    LEGAL
         REPRESENTATION FROM TRIAL COUNSEL AS A RESULT
         OF TRIAL COUNSEL'S CONDUCT WHICH PRESSURED THE
         DEFENDANT INTO NOT TESTIFYING ON HIS OWN
         BEHALF AT TRIAL.

         POINT II



                                  5                             A-1754-15T3
         THE TRIAL COURT ERRED IN DENYING THE
         DEFENDANT'S PETITION FOR POST CONVICTION
         RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
         HEARING TO FULLY ADDRESS HIS CONTENTION THAT
         HE   FAILED   TO   RECEIVE    ADEQUATE   LEGAL
         REPRESENTATION FROM TRIAL COUNSEL AS A RESULT
         OF COUNSEL'S ASSURANCE HE WOULD BE ENTITLED
         TO A REVERSAL ON APPEAL IN THE EVENT HE WAS
         CONVICTED AT TRIAL BASED UPON THE RULING MADE
         IN CONJUNCTION WITH THE MIRANDA HEARING, AS A
         RESULT OF WHICH HE DID NOT CONSIDER ANY PLEA
         RECOMMENDATION AND INSTEAD PROCEEDED TO TRIAL,
         SUBSEQUENTLY     RECEIVING      A     SENTENCE
         SIGNIFICANTLY GREATER THAN THAT EMBODIED IN
         THE PROPOSED PLEA OFFER.

    Defendant also raises the following arguments in a pro se

supplemental brief, which are partly duplicative of those in his

present counsel's brief:

         SUPPLEMENTAL POINT I

         TRIAL JUDGE ABUSED HIS DISCRETION BY FAILING
         TO CHARGE THE AFFIRMATIVE DEFENSE TO FELONY
         MURDER [UNDER N.J.S.A. 2C:11-3(a)(3)] SUA
         SPONTE.

         SUPPLEMENTAL POINT II

         TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
         CALL DETECTIVE NELSON TO THE STAND AT THE
         MIRANDA HEARING.

    Having considered these points in light of the record and the

applicable   law,   we   affirm   the   denial   of   the   PCR   petition,

substantially for the sound reasons set forth in Judge Tassini's

lengthy written decision.     We add only a few amplifying comments.




                                    6                               A-1754-15T3
       The PCR court here applied correct principles of law in

evaluating     defendant's    claims       of   ineffective     assistance    of

counsel. Those principles instruct that to establish a deprivation

of the right to counsel, a convicted defendant must satisfy the

two-part test enunciated in Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) by

demonstrating that: (1) counsel's performance was deficient, and

(2) the deficient performance actually prejudiced the accused's

defense.   Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see

also   State   v.   Fritz,   105   N.J.     42,   58   (1987)   (adopting    the

Strickland two-part test in New Jersey).

       In reviewing such claims of ineffectiveness, courts apply a

strong presumption that a defendant's trial counsel "rendered

adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment."            Strickland, supra,

466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

"[C]omplaints 'merely of matters of trial strategy' will not serve

to ground a constitutional claim of inadequacy[.]"               Fritz, supra,

105 N.J. at 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471,

489 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed.

2d 1075 (1963), overruled on other grounds by, State v. Czachor,

82 N.J. 392 (1980)).         The PCR court reasonably concluded that

defendant failed to establish these elements here.                   Moreover,

                                       7                               A-1754-15T3
defendant   failed   to   present   a   viable   prima   facie   case     of

ineffectiveness that would warrant an evidentiary hearing.           State

v. Preciose, 129 N.J. 451, 462-63 (1992).

     We specifically concur with the PCR court's rejection of

defendant's claim that his trial attorney was ineffective because

she supposedly "demanded" that he waive his right to testify.             We

do so for several reasons.    First, the allegation is set forth as

a "bald assertion" within an unsigned certification, contrary to

the verified or sworn form of statement that is required by Rule

3:22-8 and Rule 3:22-10(c).    See also State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Second, the allegation does not overcome the lengthy colloquy on

the record conducted by the trial judge, at which defendant's

right to testify was extensively discussed.        Third, trial counsel

had a reasonable tactical basis to advise defendant not to take

the witness stand.    Doing so would have opened the door to the

State using defendant's pretrial factual proffer against him,

thereby undermining the defense trial theory that his inculpatory

statements to the police were unreliable.

     We also uphold Judge Tassini's rejection of defendant's claim

that he would have pled guilty if his trial attorney had not been

ineffective in her advice to pursue the Miranda issue.           Defendant

has not set forth with particularity how he was misled, what his

                                    8                              A-1754-15T3
trial attorney said, and when the State's alleged twenty-year plea

offer   was   communicated.   It   is   also   sheer   speculation,    in

retrospect, to presume that defendant would have accepted a twenty-

year plea offer if the State denied him an opportunity to enter

into a conditional guilty plea.

     We likewise find no merit in defendant's other contentions,

including those in his supplemental pro se brief, raising issues

that either were already decided on direct appeal or could have

been.   See R. 3:22-4 and R. 3:22-5.    See also R. 2:11-3(e)(1)(E).

     Affirmed.




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