                                NOT FOR PUBLICATION WITHOUT THE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-4932-17T4

STATE OF NEW JEREY,

          Plaintiff-Respondent,

v.

AARON J. ELLIS, a/k/a AARON
JOHN ELLIS, AARRON ELLIS,
and AARON ELLOS,

     Defendant-Appellant.
_____________________________

                    Submitted October 22, 2019 – Decided November 4, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 13-04-
                    0470.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Phuong Vinh Dao, Designated Counsel, on
                    the brief)

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (David Michael
                    Liston, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Aaron Ellis appeals from the April 30, 2018 Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

                                           I

      We begin by summarizing the facts established in defendant's trial, which

we set forth at length in our November 28, 2016 opinion on direct appeal. State

v. Ellis, No. A-0676-14 (App. Div. Nov. 28, 2016) (Slip op.). We highlight the

facts relevant to this appeal.

       Around 7:00 p.m. on December 28, 2012, K.M., of Mandy's Towing

Company, went to the Joyce Kilmer Service Area on the New Jersey Turnpike

to assist a group of persons locked out of their minivan. While K.M. worked to

unlock the minivan, defendant, an employee of Puleio's Towing, arrived in his

truck. According to K.M., defendant exited his truck and walked "aggressively"

towards him, carrying his own large lockout tool.

      Defendant told K.M. to stop his work because this job was "his call."

Apparently, Puleio's Towing had received a call from Turnpike Operations about

the minivan two hours earlier. Puleio's Towing sent a message to defendant to

respond to the call, but defendant did not notice the message right away. By the


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                                       2
time defendant noticed the message, about one hour later, Turnpike Operations

had assigned the job to Mandy's Towing. K.M. testified he did not know Puleio's

Towing had received a call about the same job, and continued to work on

unlocking the minivan.

      Defendant offered to charge the group a cheaper fee, but the group

declined his offer. As K.M. continued his work, defendant tried to get in his

way and pushed into him. In response, K.M. called Turnpike Operations and

confirmed the job belonged to Mandy's Towing, and then handed defendant the

phone. As defendant spoke with Turnpike Operations, he continued pushing and

trying to stand between K.M. and the minivan, so K.M. pushed defendant back

with a "one-handed . . . shove." Defendant alleged K.M. punched him twice in

the face, but neither eyewitness saw K.M. punch defendant.1

      Shortly thereafter, defendant returned to his truck and continued speaking

with Turnpike Operations.      According to defendant, while in his truck, he

attempted to call 911, but the call failed, so he called his "grandmother -in-law"

and told her to "call the cops" or "something like that." K.M. testified defendant,



1
  In addition, New Jersey State Trooper Robert Kilmurray – who interviewed
defendant and took photographs approximately two hours after the incident –
testified defendant's face and jaw showed no signs he was punched.


                                                                           A-4932-17T4
                                        3
still seated in the truck, went into "a thrashing rage," "thrashing his arms all over

inside of the truck and bouncing all over."        K.M. further testified he saw

defendant reach under his seat, grab a four-way tire iron, and hit the inside of

the front windshield two or three times, shattering the truck windshield.

Defendant denied swinging a tire iron inside his truck and denied breaking the

front windshield.

      K.M. testified he went over to defendant's truck to "calm him down" and

say "no hard feelings," but defendant would not open the door, so K.M. walked

away and returned to the minivan. Contrary to K.M.'s testimony, defendant

claimed K.M. approached his truck aggressively, banged on his window, and

tried to open the truck door himself. K.M. denied these allegations.

      Approximately five to seven minutes later, defendant exited his truck and

began walking towards K.M., swinging the tire iron.           According to K.M.,

defendant then chased him while swinging the tire iron, eventually hitting him

twice – once on the left temple area of his head and once on his left hand. K.M.

described dropping to his knee and bleeding "like[] a faucet" from his temple.

Defendant then got back in his truck and drove away.

      According to defendant, he grabbed the tire iron because he was anxious

K.M. would strike him again, and only exited his truck to scare K.M. away. He


                                                                             A-4932-17T4
                                         4
said he swung the tire iron in order to defend himself and claimed he only grazed

K.M. with it; nevertheless, when K.M. asked defendant to stop, he did so.

Defendant said he walked back to his truck after the incident, and K.M. picked

up his glasses and completed the paperwork for the job. When K.M. appeared

alright, defendant drove away.

      The impact of the tire iron left K.M. with a fractured eye socket, internal

eye damage, partial loss of vision, persistent jaw pain, and frequent migraines.

Treatment of K.M.'s injuries included a surgical implantation of titanium plates

around his left eye-socket.

      After speaking with K.M., Trooper Kilmurray called Puleio's Towing and

obtained defendant's contact information. He called defendant and instructed

him to report to the Cranbury Barracks, where he placed defendant under arrest.

At 8:57 p.m., defendant gave a videotaped statement.

      On January 12, 2014, the matter proceeded to trial. The State presented

the recording of defendant's videotaped custodial interview. In the interview,

the following colloquy occurred between defendant and Trooper Kilmurray:

            [Defendant]: [I]f you're the judge, how am I wrong?

               [Trooper]: You're asking me honestly?

            [Defendant]: Yes.


                                                                         A-4932-17T4
                                       5
              ....

[Defendant]: It's wrong to leave?

 [Trooper]: [I]t's wrong to leave. . . . [I]f you're there
            and [the victim is] there, and now we
            have the witnesses there, we can start . . .
            working this thing out. But . . . as you
            leave, it looks really bad for you to leave.

              ....

[Trooper]:     [I]t doesn't bode well for you . . . when
              you don't hang . . . around. Because if
              you're in the right, if you felt [you] didn't
              do anything wrong[.] [I]f I felt that
              way, . . . if the guy pushed me, I probably
              wouldn't hit him in the face with a tire
              iron . . . but if someone pushed me or had
              punched me, I'm going to take a swing
              back. [When] the cops show up, . . . I'm
              going to wait there until the cops get
              there to say he hit me first, I punched him
              back, I was protecting myself, ask any of
              these people. That's what I would do.
              And I think that's what you would do,
              too. That's what most people that think
              they're right would do. People that think
              that they fucked up . . . [think] I got to
              get away from this situation and cool
              down before it gets worse. Is the way it
              seems to me. . . . that's how it looks to
              me.
              To be honest with you. You . . . asked
              me . . . that's how it looks to me.

              ....


                                                              A-4932-17T4
                           6
             [Trooper]:    I mean, fortunately for you, this guy . . .
                           he must be a tough dude, because if I got
                           hit in the head with . . . a tire iron, . . .
                           and my eye was swollen . . . shut, I'd be
                           down for the count. And he was back up
                           on his feet talking to us when he got
                           there[.]

            [Defendant]: Yeah.

             [Trooper]:    I mean you got to be thankful . . . because
                           you could have . . . killed him. Do you
                           understand?

           [Defendant]:    I understand.

      The next day, the trial judge addressed Trooper Kilmurray's statements

regarding the significance of defendant departing from the scene and hitting

K.M. in the head, and concluded his comments amounted to opinion rather than

evidence. Defense counsel explained he included the statements as part of his

trial strategy but agreed with the trial judge's suggested curative instruction.

      The judge then provided the jury the following instruction:

            Toward the end of the statement, the trooper had
            expressed an opinion about defendant's actions that
            evening, or earlier in the evening. What I want to tell
            you is [Trooper Kilmurray's] opinion is irrelevant. It's
            your opinion about the facts and defendant's conduct
            that matters. You cannot make an inference about
            defendant's conduct merely because the trooper came to
            a particular opinion. It's up to you as jurors to
            determine the facts and to decide the inferences that are
            to be drawn from those facts.

                                                                           A-4932-17T4
                                         7
      The jury found defendant guilty of second-degree aggravated assault

causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1), third-degree aggravated

assault with a deadly weapon, N.J.S.A. 2C-12-1(b)(2); and third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).2

      On March 7, 2014, the trial judge sentenced defendant. Defense counsel

urged the court to find mitigating factors number five, N.J.S.A 2C:44-1(b)(5)

(the victim induced or facilitated defendant's conduct); six, N.J.S.A 2C:44-

1(b)(6) (defendant has or will compensate the victim); and eleven, N.J.S.A.

2C:44-1(b)(11) (imprisonment would entail excessive hardship), weighed in

favor of defendant.

      The judge merged the two third-degree convictions into the second-degree

aggravated assault causing serious bodily injury conviction. The judge found

aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); six,

N.J.S.A. 2C:44-1(a)(6) (criminal history and seriousness of conviction); and

nine, N.J.S.A. 2C:44-1(a)(9) (deterrence). After finding that only mitigating

factor eleven applied, the judge sentenced defendant to a ten-year term of




2
  The jury found defendant not guilty of third-degree endangering an injured
victim, N.J.S.A. 2C:12-1.2; and third-degree hindering apprehension, N.J.S.A.
2C:29-3(b)(1).
                                                                        A-4932-17T4
                                      8
imprisonment, subject to eighty-five percent ineligibility for parole, pursuant to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      Defendant appealed his conviction and sentence, and we affirmed. Ellis,

slip op. at 18. Defendant argued his trial counsel's failure to object to Trooper

Kilmurray's statements regarding the significance of defendant departing from

the scene and of him hitting the victim in the head with a tire iron amounted to

ineffective assistance of counsel.    Id. at 14. We declined to consider that

argument, concluding it was more suitable for PCR. Ibid. We found no plain

error "[g]iven the relatively benign nature of the trooper's statements as well as

the trial court's thorough curative instructions . . ." Id. at 15. We also addressed

whether the trial judge imposed an excessive sentence and found the judge

balanced "all applicable factors" and concluded we had "no basis to interfere

with the judge's reasoned and appropriate exercise of discretion." Id. at 18.

      In December 2016, defendant filed the PCR petition under review. On

April 30, 2018, the PCR judge heard oral argument on defendant's petition. PCR

counsel argued the trial judge provided an inadequate jury instruction the day

after trial counsel failed to object to Trooper Kilmurray's opinion testimony,

which "was too little too late" to cure the error. The judge rejected the argument,




                                                                            A-4932-17T4
                                         9
concluding that despite the one-day delay, the instruction adequately corrected

the error.

       The judge addressed whether trial counsel's failure to object to Trooper

Kilmurray's testimony amounted to ineffective assistance of counsel and found

trial counsel's actions were a "strategic decision" because the trooper's

comments suggested defendant expressed remorse.            He ruled that, "[e]ven

assuming arguendo" trial counsel's performance satisfied the first prong of

Strickland,3 his performance did not satisfy the second prong because the "court

instructed the jury not to consider the challenged evidence."

       The judge also ruled trial counsel did not err by failing to argue mitigating

factors eight and nine at sentencing because the record revealed in 2000

defendant was convicted of aggravated assault, similar in nature to the current

circumstances. He ruled "counsel [was] not obligated to argue mitigating factors

that have no basis in fact or cannot be established by the circumstances." The

judge also ruled appellate counsel did not err by failing to argue mitigating

factors eight and nine on direct appeal because appellate counsel did in fact

attempt to raise the argument but this court declined to address the argument,

concluding it was better suited for PCR.


3
    Strickland v. Washington, 466 U.S. 688 (1984).
                                                                            A-4932-17T4
                                        10
      This appeal followed, with defendant presenting the following arguments:

            POINT I

            THE PCR COURT ERRED WHEN IT FOUND
            DEFENDANT HAD FAILED TO ESTABLISH A PRIMA
            FACIE CASE OF INEFFECTIVE ASSISTANCE OF
            COUNSEL.

            (1) Trial counsel allowed Trooper Kilmurray to provide an
            impermissible opinion as to defendant's guilt.

            (2) Trial counsel was ineffective by failing to adequately
            argue certain aggravating and mitigating factors at
            sentencing.

            (3) Trial counsel's cumulative errors denied his client the right
            to effective legal representation.

            POINT II

            APPELLATE COUNSEL WAS INEFFECTIVE FOR
            FAILING TO RAISE THE SENTENCING ISSUES ON
            DIRECT APPEAL.

            POINT III

            AS THERE WERE GENUINE ISSUES OF MATERIAL
            FACTS IN DISPUTE, AN EVIDENTIARY HEARING WAS
            REQUIRED.

      Following our review of these arguments, in light of the record and

applicable law, we affirm.




                                                                           A-4932-17T4
                                       11
                                             II

      "A petitioner must establish the right to [post-conviction] relief by a

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth specific facts that

"provide the court with an adequate basis on which to rest its decision." State

v. Mitchell, 126 N.J. 565, 579 (1992).

      A defendant must prove two elements to establish a PCR claim that trial

counsel was constitutionally ineffective: first, that "counsel's performance was

deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment[;]" second, that "there is a reasonable probability that, but for

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

different." Strickland, 466 U.S. at 694; accord State v. Fritz, 105 N.J. 42, 58

(1987).   "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." State v. Harris, 181 N.J. 391, 432 (2004) (quoting

Strickland, 466 U.S. at 694).

      To prove the first element, a defendant must "overcome a strong

presumption that counsel exercised reasonable professional judgment and sound

trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542


                                                                            A-4932-17T4
                                        12
(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,

147 (2011)). To prove the second element, a defendant must demonstrate "how

specific errors of counsel undermined the reliability of the finding of guilt."

United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

                                            A

      Defendant argues trial counsel provided ineffective assistance of counsel

by permitting the jury to hear parts of Trooper Kilmurray's comments during

defendant's videotaped custodial interview.      Defendant further argues trial

counsel failed to ask for a prompt curative instruction from the trial judge.

      On defendant's direct appeal, we concluded trial counsel's failure to object

to certain portions of Trooper Kilmurray's testimony did not constitute plain

error, and the trial judge's curative instruction did not create an unjust result.

The PCR judge found trial counsel strategically decided not to object to the

Trooper Kilmurray's testimony because the testimony immediately preceding it

portrayed defendant as remorseful toward the victim. He also found, even if the

decision satisfied the first prong of Strickland, defendant could not satisfy the

second prong of Strickland because the error would not have changed the

outcome of trial.




                                                                          A-4932-17T4
                                       13
      The record reveals trial counsel employed a reasonable trial strategy

specifically utilizing portions of the comments and opinions expressed by

Trooper Kilmurray during his interview of defendant. Trial counsel used the

testimony to show that defendant expressed remorse following the incident. The

testimony also attempted to establish defendant did not act intentionally and left

the scene because he believed the victim sustained only minor injuries. Like the

PCR judge, we find defendant failed to overcome the "strong presumption" that

his counsel executed trial strategy when he declined to redact the portions of

testimony at issue. Nash, 212 N.J. at 542.

      We also agree with the PCR judge's finding that the error clearly does not

satisfy the second prong of the Strickland test. Even if defendant overcame the

strong presumption of trial strategy, the trial judge issued a reasonable curative

instruction the following morning. Therefore, the record does not establish a

reasonable probability the result would have been different if trial counsel's

alleged error never occurred. Harris, 181 N.J. at 432.

                                            B

      Defendant also argues the PCR judge erred by declining to find both trial

and appellate counsel ineffective for inadequately arguing mitigating factor

eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of


                                                                          A-4932-17T4
                                       14
circumstances unlikely to recur), and mitigating factor nine, N.J.S.A. 2C:44-

1(b)(9) (the character and attitude of defendant indicates he is unlikely to

commit another offense).

      "[T]he failure to present mitigating evidence or argue for mitigating

factors" can be ineffective assistance of counsel where "mitigation evidence was

withheld from the sentencing court." Hess, 207 N.J. at 154. Here, however,

"[t]he record before us contains no indication of any similar withholding from

the trial court of information that could bear on the court's sentencing analysis."

State v. Friedman, 209 N.J. 102, 121 (2012). Defendant fails to identify rational

mitigating evidence that trial counsel or appellate counsel should have

advanced.

      Trial counsel argued mitigating factors five, six and eleven weighed in

defendant's favor but the trial judge found only mitigating factor eleven. We

previously concluded the trial judge addressed "all" applicable factors and found

no basis to interfere with the "[trial] judge's reasoned and appropriate exercise

of discretion." State v. Ellis, slip. op. at 18.

       Addressing mitigating factors eight and nine, the PCR judge found the

factors "inapplicable" because the defendant was previously convicted of an

aggravated assault similar in nature to the current crime. Therefore, he ruled


                                                                           A-4932-17T4
                                         15
there was no factual basis to argue the two mitigating factors. We agree with

the PCR judge's determination because defendant's past criminal record

completely undermines his argument.         Defendant fails to identify rational

mitigating evidence that trial counsel or appellate counsel should have

advanced. Friedman, 209 N.J. at 121.

                                            C

      Defendant further argues the PCR judge abused his discretion by denying

an evidentiary hearing, asserting the existence of genuine issues of material fact.

PCR courts are not required to conduct evidentiary hearings unless the defendant

establishes a prima facie case and "there are material issues of disputed fact that

cannot be resolved by reference to the existing record." R. 3:22-10(b). "To

establish such a prima facie case, the defendant must demonstrate a reasonable

likelihood that his or her claim will ultimately succeed on the merits." State v.

Marshall, 148 N.J. 89, 158 (1997) (alteration in original). Speculative assertions

are insufficient to establish a prima facie case of ineffective assistance of

counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

      The record amply supports the PCR judge's findings and conclusions.

Defendant has not shown "there is a reasonable probability that, but for counsel's

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


                                                                           A-4932-17T4
                                       16
Strickland, 466 U.S. at 694.     He was unable to demonstrate the required

prejudice. Having failed to establish a prima facie case, defendant was not

entitled to an evidentiary hearing. Preciose, 129 N.J. at 462. Accordingly, the

PCR court did not abuse its discretion in denying an evidentiary hearing.

      To the extent we have not addressed any arguments raise by plaintiff, we

have deemed such arguments lacking in sufficient merit to warrant comment in

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

      Affirmed.




                                                                        A-4932-17T4
                                      17
