                                 NOT FOR PUBLICATION WITHOUT THE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-3978-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JUSTIN C. ANGELINO,

     Defendant-Appellant.
_________________________

                   Submitted May 13, 2020 – Decided June 5, 2020

                   Before Judges Whipple, Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 13-06-1855.

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

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Linda A. Shashoua, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant appeals from the March 8, 2019 Law Division order denying

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

appeal, defendant raises the following issue for our consideration.

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY      HEARING       BECAUSE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF TRIAL COUNSEL'S INEFFECTIVENESS
            FOR ABRIDGING HIS CONSTITUTIONAL RIGHT
            TO TESTIFY.

We reject defendant's contention and affirm substantially for the reasons

expressed in Judge Gwendolyn Blue's cogent and well-reasoned oral opinion

accompanying the order.

      We incorporate herein the facts set forth in State v. Angelino, No. A-4791-

14 (App. Div. October 18, 2017) (slip op. at 1-2), certif. denied, 232 N.J. 389

(2018), wherein we affirmed defendant's 2014 jury trial convictions for "robbery

(count two); conspiracy to commit robbery (count three); aggravated assault

(counts four and five); and unlawful possession of a weapon (count eight) ," and

acquittal for "attempted murder," "possession of a weapon for an unlawful

purpose," and "unlawful possession of a weapon." While we were "satisfied the

record amply support[ed] the judge's findings on aggravating and mitigating

factors," we remanded for resentencing defendant's aggregate fifteen-year No

Early Release Act, N.J.S.A. 2C:43-7.2, sentence "[b]ecause the conspiracy

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                                       2
conviction should have merged with the robbery conviction under N.J.S.A.

2C:1-8(a)(2)." Id. at 11.1

       We recounted that "[t]he charges stemmed from defendant's involvement

in the [November 2012] armed robbery and brutal attack of his biological father,

with whom he had recently reconnected." Id. at 2. When the crimes occurred,

defendant had been residing with his father "off and on for almost a year."

However, defendant resented his father because of "his troubled upbringing in

foster care as the result of his father 'signing away' his parental rights." Id. at

10. During the two-week trial, "eleven witnesses testified," including the victim,

who identified defendant as one of two attackers who "beat[], bludgeon[ed] and

stabb[ed]" him, and "the State's expert witness," id. at 4, who detailed the

victim's extensive injuries, consisting of "multiple lacerations" and "stab

wounds[] of his extremities, upper chest, [and] . . . head." Although defendant

did not testify at trial, his incriminating recorded statement to police, in which

he admitted participating in the attack with a co-conspirator, was played for the

jury. Id. 3-4.

       In his timely PCR petition, defendant certified that he received ineffective

assistance of counsel (IAC) because trial counsel refused "to cooperate with


1
    On the remand, after merger, defendant's aggregate sentence was unaffected.
                                                                           A-3978-18T1
                                         3
[him] in presenting [his] defense to the jury." He explained that "[he] told [his]

lawyer . . . that [he] wanted to . . . testify in [his] own defense to correct[] . . .

errors in [his recorded] statement and to explain the reason for the misstatements

so the jury could fully understand." To that end, he "provided to [his lawyer] a

list of questions [he] wanted him to ask" during his testimony. However, "[his]

attorney refused to ask those questions . . . if [he] chose to testify." According

to defendant, because "[his] lawyer refused to do what [he] wanted him to do[,]

. . . when the court asked [him] if [he] was voluntarily waiving [his] right to

testify [he] said, 'Yes,' but in actuality did so involuntarily."

      Following oral argument, Judge Blue denied defendant's petition. In her

oral decision, the judge reviewed the factual background and procedural history

of the case, applied the governing legal principles, and concluded defendant

"failed to make a prima facie showing" of IAC. See State v. Porter, 216 N.J.

343, 355 (2013) ("A prima facie case is established when a defendant

demonstrates 'a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed on

the merits.'" (quoting R. 3:22-10(b))).

      The judge found defendant failed to show that either counsel's

performance fell below the objective standard of reasonableness set forth in


                                                                              A-3978-18T1
                                          4
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome

would have been different without the purported deficient performance as

required under the second prong of the Strickland/Fritz test. See State v. Gaitan,

209 N.J. 339, 350 (2012) ("With respect to both prongs of the Strickland test, a

defendant asserting [IAC] on PCR bears the burden of proving his or her right

to relief by a preponderance of the evidence.").

      Additionally, in rejecting defendant's request for an evidentiary hearing,

the judge concluded defendant failed to present any issues that could not be

resolved by reference to the existing record. See State v. Preciose, 129 N.J. 451,

462 (1992) (explaining that IAC claims require an evidentiary hearing when the

facts "lie outside the trial record"); State v. Brewster, 429 N.J. Super. 387, 401

(App. Div. 2013) ("If the court perceives that holding an evidentiary hearing

will not aid the court's analysis of whether the defendant is entitled to [PCR], .

. . then an evidentiary hearing need not be granted." (quoting State v. Marshall,

148 N.J. 89, 158 (1997))).

      In addressing defendant's claim that his attorney's "ineffectiveness

resulted in him involuntarily waiving his right to [testify]," the judge carefully




                                                                          A-3978-18T1
                                        5
reviewed the court's colloquy with defendant during the trial regarding his

waiver.2 The judge explained:

              [L]ooking at that colloquy, it is clear to this [c]ourt . . .
              that he was fully aware of his right to testify, as well as
              his right to remain silent. It is also very clear that he
              had discussed this matter with his attorney on numerous
              occasions, that trial counsel answered all the questions
              he had on the matter, and that he was satisfied with what
              trial counsel told him.

                     According to [defendant], his trial attorney . . .
              both consulted with him regarding whether or not he
              would testify and trial counsel obtained consent of
              [defendant] to inform the [c]ourt that he would not
              testify. In fact, . . . [defendant] himself says, "I talked
              to my attorney and I kind of already had the decision,
              but he made it concrete." When asked if his attorney
              clarified his concerns, he responded yes.

                     [Defendant] then stated to the [c]ourt he was not
              testifying for strategic reasons and that he had enough
              time to speak with his attorney regarding his decision
              not to testify. I am satisfied that [defendant] clearly
              waived his right to testify knowingly and intelligently
              and voluntarily after conferring with trial counsel, . . .
              that finding is well supported by the record[,] and . . .
              [defendant] had enough time to address his concerns
              about his waiver . . . . Even after he said to this [c]ourt
              he wasn't testifying, I again, after my colloquy of him,
              inquired as to whether his attorney answered all of his
              concerns and his response was yes.




2
    Judge Blue was also the trial judge.
                                                                              A-3978-18T1
                                           6
      Finding that defendant "fail[ed] to meet his burden under Strickland," the

judge stressed "[t]he transcript simply does not support [defendant's] argument."

Instead, "[w]hat is before the [c]ourt . . . appears to be no more than a blanket

statement and a change of heart regarding [defendant's] decision not to testify.

There are absolutely no[] facts to support [defendant's] blanket statement." See

State v. Cummings, 321 N.J. Super. 154, 169 (App. Div. 1999) ("[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.").

      Turning to the prejudice prong of the Strickland/Fritz test, Judge Blue

noted that some of the proposed questions defendant provided to his attorney

were objectionable "under the rules of evidence." Others were intended to show

that the co-defendant was more culpable by "let[ting] the jury know that it was

never his intent to hurt the victim," and "[t]hat he did [not] know the co -

defendant had a weapon on him." However, the judge found defendant again

failed to meet his burden because defendant "failed to show how the result . . .

would have been different had he . . . testif[ied]."

      The judge explained

            trial counsel did put . . . before the jury specific
            statements from [defendant's] statement to the police,
            which would support [defendant's] argument that the
            co-defendant . . . [was] more culpable than [defendant].

                                                                         A-3978-18T1
                                         7
            However, [defendant] . . . fails to realize that by not
            taking [the] stand . . . , it prevented him from being
            presented with extensive cross-examination as to the
            substantial inconsistencies in his statement regarding
            defendant's own culpability in this matter.

                   . . . [T]rial counsel['s] strategy . . . appear[ed] to
            [have been] successful . . . as [defendant] was not
            convicted [of] [t]he attempted murder charge[] or [two
            of] the weapon charges.

See State v. Castagna, 187 N.J. 293, 314 (2006) ("The quality of counsel's

performance cannot be fairly assessed by focusing on a handful of issues while

ignoring the totality of counsel's performance in the context of the State's

evidence of defendant's guilt."). The judge entered a memorializing order and

this appeal followed.

      On appeal, defendant renews his contention that was handily rejected by

Judge Blue, arguing the judge erred in finding that trial counsel's "abridge[ment

of] his constitutional right to testify" did not "constitute[] a [prima facie] case

of ineffectiveness."    After reviewing the record, we conclude Judge Blue

thoroughly addressed defendant's contention, and the argument is without

sufficient merit to warrant further discussion here. R. 2:11-3(e)(2).

      Affirmed.




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