                        NOT FOR PUBLICATION WITHOUT THE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-0338-16T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

YVONNE WALKER,

     Defendant-Appellant.
______________________________

              Submitted June 4, 2018 – Decided July 17, 2018

              Before Judges Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 12-
              01-0128.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Thomas G. Hand, Designated
              Counsel, on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Lucille
              M. Rosano, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Yvonne Walker appeals from the June 23, 2016 denial

of her petition for post-conviction relief (PCR).                 We affirm.
      The facts surrounding the charged offenses are summarized in

the direct appeal State v. Walker, No. A-5613-12 (App. Div. Feb.

25, 2015), and we need not repeat them here. We focus our attention

on the facts pertaining to plaintiff's allegations in her PCR

petition regarding ineffective assistance at her trial for the

murder of Cassetta Blount.

      On January 20, 2012, an Essex County Grand Jury indicted

defendant for: first-degree felony murder, N.J.S.A. 2C:11-3(a)(3);

first-degree   murder,   N.J.S.A.   2C:11-3(a)(1)&(2);   first-degree

robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a

weapon, a knife, N.J.S.A. 2C:39-5(d); and third-degree possession

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

      On January 22, 2013, the trial court conducted a Miranda1

hearing but denied defendant's motion to suppress the statement

she gave to police.      Defendant was present for the suppression

hearing, but she asked to leave because she was upset.         During

direct examination of the first witness, defense counsel asked for

a sidebar and stated, "I'm going to ask that [defendant] be allowed

to go in the hallway because she's told me . . . she's going to

have an outburst.   It's going to be an issue at trial . . . .        I

think she has a right not to be present, so I'm going to suggest



1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                    2                         A-0338-16T3
that the Court allow her to exercise that right."            The judge spoke

with defendant: "you have a right not to be present.            I understand

from your attorney . . . you wish not to be present . . . during

the hearing."    Defendant said yes and was escorted out.

       A jury trial was conducted between January 29 and February

6, 2013.   Defendant was present for jury selection, and one of the

voir   dire   questions     was   whether    prospective    jurors    would    be

prejudiced against defendant because of her absence from the trial.

Further, during trial counsel's opening statement, she addressed

the issue directly with the jury, asking them not hold defendant's

absence against her.

       During trial, defendant was rarely present.           On the first day

of   trial,   after   the    jury   was     sworn,   but   before    they   were

instructed, defense counsel requested a break so her client could

exercise her right not to be in court for the openings.              After the

jury instructions, counsel represented to the court, "[defendant]

was present for jury selection, . . . but as she did at the time

of the Miranda [h]earing she has indicated to me that . . . she

chooses not to be present at this time."

       Defendant was absent the second day of trial.          The transcript

is silent about whether defendant had affirmatively renewed her

decision not to appear.       On the third day of trial, defendant was

present when court convened.              The trial judge addressed her,

                                       3                                A-0338-16T3
asking, "you're back here again . . .      We're ready to continue

with the trial.   Uh, do you wish you be here . . . during the

course of the trial, or not?"      Defendant said no, and left the

courtroom.

     The defendant was not present for final jury instructions,

and the record is silent about whether defendant renewed her

decision not to appear.   The judge informed the jury:

          As you know, the defendant elected not to
          testify at trial. It is her [c]onstitutional
          [r]ight to remain silent.      You must not
          consider for any purpose or in any manner in
          arriving at your verdict the fact that the
          defendant did not testify. That fact should
          not enter your deliberations or discussion in
          any manner, at any time.    Uh, and the same
          goes . . . for the times she was not present
          . . . defendant is . . . presumed innocent
          whether or not she chooses to testify.

     On February 6, 2013, the lawyers appeared before the judge

to address an issue about a juror.    Defendant was not present at

this hearing, evidenced by the following colloquy:

          Court: . . . Is she here?

          Counsel: I don't believe so, Judge.

          Court: You . . . want . . . to talk about the
          juror without her present?

          Counsel: That's fine, Judge.

However, later that day, when the jury presented the court with a

question, defendant was present.



                                4                          A-0338-16T3
     Defendant was convicted of first-degree murder, theft of

movable property, unlawful possession of a weapon, and possession

of a weapon for an unlawful purpose.           She was acquitted of robbery

and felony murder.      The record does not indicate whether defendant

was present for the verdict.

     On   March   27,   2013,    the   trial    judge    merged   the   weapons

possession charges with the murder charge, and sentenced defendant

to forty-five years in prison, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, for the murder conviction, and to five

years for the theft charge, to run concurrently.                  He found no

mitigating factors, and found aggravating factors one, three, six,

nine,   and   twelve;   the     aggravating    factors    preponderated      the

mitigating factors.       After her release, she will be subject to

mandatory parole supervision for five years.

     Defendant appealed the conviction, asserting she was deprived

of her right to due process and a fair trial because the court:

(1) failed to dismiss a deliberating juror for financial hardship,

and (2) failed to properly charge the jury on defendant's absence

during trial.     On February 25, 2015, we affirmed the conviction

and sentence for the murder charge, but reversed the conviction

for theft, changing it to a disorderly persons theft offense, and

remanded for resentencing.         Walker, No. A-5613-12 (slip op. at



                                       5                                A-0338-16T3
17).     On June 16, 2015, the Supreme Court denied certification.

State v. Walker, 222 N.J. 15 (2015).

       On August 6, 2015, defendant filed a verified petition for

PCR.     On January 15, 2016, PCR counsel filed an amended petition

on defendant's behalf asserting trial counsel was ineffective

because she (1) failed to communicate with defendant and review

discovery with her; (2) advised defendant not to attend trial and

did not advise her of the dangers of not attending; (3) failed to

request the model jury charge regarding her absence from trial;

and (4) failed to object to jury instructions not including the

above model jury charge.

       The PCR judge granted defendant's request for an evidentiary

hearing, limited to two issues: (1) the waiver of defendant's

appearance     at     trial,    and     (2)    trial    counsel's      pre-trial

communication       with   defendant.        During   the   hearing,   defendant

testified that over the entire time trial counsel had represented

her, beginning after her indictment, counsel visited defendant

"just three or four times,"             staying only "[twenty] minutes or

less."     Defendant alleged counsel never went through discovery

with her, and counsel watched portions of her videotaped statement

with her, but defendant did not want to see all of the video

because it upset her.



                                         6                               A-0338-16T3
     When she asked counsel if she had to be present at her trial,

counsel told her she did not have to be present at the trial,

saying "it’s also in your best interest if you’re not at your

trial because of [the] anger issue.      She . . . didn’t want no

outbursts from me."     Counsel did not explain to defendant how it

might hurt her case if she were not present or that the jury might

misperceive her absence.     Defendant did not recall being present

for her Miranda hearing, nor asking if she could not be present

while her statement was played.   Further, defendant did not recall

being asked by the court whether she wanted to be present for

summations.    She also did not remember if she was present for the

jury instructions.

     Defendant's public defender testified after being assigned

to represent defendant, she visited the jail often to speak with

defendant, and the length of her visits would "depend on what

[they] were talking about."       She and defendant had numerous

discussions about how to proceed with her defense, and whether

defendant would be able to contain herself when hearing the

evidence against her.

     Counsel expressed concern "there was going to be some type

of explosion in front of the jury and we had many discussions

about that."    She "suggested to [defendant] that . . . if she

didn’t think she could contain herself, if she didn’t think she

                                  7                         A-0338-16T3
could not have an outburst upon hearing different witnesses make

allegations against her, that perhaps it would be in her best

interest    not    to   be   present   during   the   testimony."     These

conversations happened more than once, and were "ongoing because

the trial was ongoing."        Ultimately, defendant made the decision

not to be present at trial.

       When she was not in the courtroom during the trial, defendant

stayed in the holding cell at the courthouse, and was present

during jury selection so the jury would "know that she was not a

fugitive."        Counsel "went into the holding cell to speak to

[defendant] on every break, at lunchtime, morning break, afternoon

break . . . [and] tried to . . . keep her informed to make her

feel that she knew what was going on despite the fact that she

wasn’t in the courtroom."

       Counsel requested a jury instruction to educate the jurors

about defendant's right to not have her absence held against her.

The instruction given was "not exactly what [she] requested,"

however, the jury was told they were not to hold defendant's

absence against her.

       On June 30, 2016, the judge denied defendant's petition for

PCR.   The judge found credible trial counsel's testimony that her

meetings with defendant were longer than twenty minutes, and that

she had concerns over defendant's potential for negative and

                                       8                            A-0338-16T3
damaging reactions to testimony.           However, it was not apparent

counsel informed defendant of the risks of not being present at

trial, and the record did not support a finding that defendant

made a knowing and intelligent waiver of her right to be present

at trial.    Defendant was asked only twice about her desire not to

be present, and the PCR judge found the trial court did not meet

its obligation "to question defendants about their understanding

of the nature and consequences of their absence from the trial."

     Ultimately, the PCR judge found although trial counsel's

incomplete    advice    regarding     defendant's   absence      from     trial

rendered her assistance ineffective, defendant did not satisfy the

second prong of the standard set forth in Strickland v. Washington,

466 U.S. 668 (1984).     Defendant had demonstrated trial counsel was

ineffective, but she did not demonstrate a reasonable probability

that but for counsel's unprofessional errors, the result of the

proceeding   would     have   been   different,   because   of   the     strong

evidence against her.         State v. Fritz, 105 N.J. 42, 52 (1987)

(quoting Strickland, 466 U.S. at 694).

     Defendant also argued counsel's alleged failure to insist on

the model jury charge relating to defendant's absence from trial

rendered her assistance ineffective.         The PCR judge acknowledged

the issue had already been addressed on direct appeal and similarly

rejected the argument finding counsel informed the jury of its

                                       9                                A-0338-16T3
obligations   regarding      defendant's     presence   or   absence    in    her

opening statement, and in her summation, and there were questions

in the jury voir dire about a defendant being absent from her own

trial.     Moreover, defendant had not proven she was prejudiced

because of the jury instruction.           This appeal followed.

     On appeal, defendant argues the following:

     THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] PETITION
     BECAUSE [DEFENDANT'S] TRIAL COUNSEL WAS INEFFECTIVE.

            A. [Defendant] Was        Prejudiced By Trial
            Counsel's Waiver of       [Defendant's] Various
            Appearances in Court.

            B. Trial Counsel Was Ineffective When She
            Failed To Communicate With [Defendant], Which
            Denied   [Defendant]   the   Opportunity   to
            Participate In Her Defense.

            C. Trial Counsel Was Ineffective When She
            Failed To Request The Model Jury Instruction
            Related To [Defendant's] Failure To Attend
            Trial.

     Our   review   of   a   PCR   claim    after   a   court   has    held    an

evidentiary   hearing    "is   necessarily     deferential      to   [the]    PCR

court's factual findings based on its review of live witness

testimony."    State v. Nash, 212 N.J. 518, 540 (2013).               On appeal

from denial of a petition for PCR, our review is limited, affording

deference to the motion judge's findings so long as they are

"supported by sufficient credible evidence in the record."               Ibid.;

see State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's



                                    10                                  A-0338-16T3
findings should be disturbed only if they are so clearly mistaken

that the interest of justice demand intervention and correction.")

(citation omitted).          We defer to the PCR judge's factual findings

"which are substantially influenced by his opportunity to hear and

see the witnesses and to have the feel of the case."             Elders, 192

N.J. at 224 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

     "[PCR] is New Jersey's analogue to the federal writ of habeas

corpus," State v. Preciose, 129 N.J. 451, 459 (1991), affording

an adjudged criminal defendant a "last chance to challenge the

fairness and reliability of verdict."               Nash, 212 N.J. at 540

(citation omitted); see R. 3:22-1.            A defendant must establish the

right    to   PCR   by   a    preponderance    of   the   credible    evidence.

Preciose, 129 N.J. at 459.          In order to satisfy this burden, the

defendant "must do more than make bald assertions that he [or she]

was denied the effective assistance of counsel.             He [or she] must

allege    facts     sufficient      to    demonstrate     counsel's     alleged

substandard performance."         State v. Cummings, 321 N.J. Super. 154,

170 (App. Div. 1999).

     To establish ineffective assistance of counsel, defendant

must satisfy a two-prong test:

              First, the defendant must show that counsel's
              performance was deficient.     This requires
              showing that counsel made errors so serious
              that counsel was not functioning as the
              "counsel" guaranteed the defendant by the

                                         11                             A-0338-16T3
               Sixth Amendment. Second, the defendant must
               show that the deficient performance prejudiced
               the defense.     This requires showing that
               counsel's errors were so serious as to deprive
               the defendant of a fair trial, a trial whose
               result is reliable. Unless a defendant makes
               both showings, it cannot be said that the
               conviction or death sentence resulted from a
               breakdown in the adversary process that
               renders the result unreliable.

               [Strickland, 466 U.S. at 687; Fritz, 105 N.J.
               at 58 (adopting the standard in Strickland).]

       Defendant argues her trial counsel was ineffective for not

requesting the model jury instruction on defendant's absence from

the trial, and for inadequately communicating with her.

       A   court       assesses       counsel's        performance       with    extreme

deference, "requiring 'a strong presumption that counsel's conduct

falls      within      the     wide    range      of     reasonable       professional

assistance.'"         Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S.

at 688-89).       "To rebut that strong presumption, [defendant] must

establish . . . trial counsel's actions did not equate to sound

trial strategy."             State v. Castagna, 187 N.J. 293, 314 (2005)

(citation       omitted).        "Mere   dissatisfaction          with    a     counsel's

exercise of judgment is insufficient to warrant overturning a

conviction."        Nash, 212 N.J. at 542 (citing State v. Echols, 199

N.J.    344,    358    (2009)).        This    standard    applies       "not    only    to

counsel's performance in conducting the trial itself but to all

stages     of    the     prosecution      from     the     very      outset      of     the

                                          12                                      A-0338-16T3
representation."         Pressler & Verniero, Current N.J. Court Rules,

comment 1.1 on R. 3:22-2.

      The PCR judge determined trial counsel was a credible witness,

and     she     adequately     communicated      with      defendant.         This

determination, and the denial of defendant's claim on these counts,

is entitled to our deference without a showing that these findings

"are so clearly mistaken that the interest of justice demand

intervention and correction."           Elders, 192 N.J. at 244 (citation

omitted).

      Additionally,        defendant   asserts    the   PCR   court     erred      in

finding she was not prejudiced by her absence from the trial,

because it denied her the opportunity to communicate with counsel,

to assist in her defense, and assist with cross-examination of

witnesses.

      To      prove    prejudice,   "actual   ineffectiveness     .   .   .   must

[generally] be proved."         Fritz, 105 N.J. at 52.         Petitioner must

show the existence of "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would    have     been    different.     A    reasonable    probability       is   a

probability sufficient to undermine confidence in the outcome."

Ibid.      "[N]ot every error that conceivably could have influenced

the outcome undermines the reliability of the result of the

proceeding.           Strickland, 466 U.S. at 693 (citation omitted).

                                       13                                 A-0338-16T3
Prejudice may be presumed only when "the accused is denied counsel

at a critical stage of [her] trial" or "counsel entirely fails to

subject the prosecution's case to meaningful adversarial testing."

United States v. Cronic, 466 U.S. 648, 659, 667-68 (1984); see

also State v. Savage, 120 N.J. 594, 639 (1990).

     Here, defendant had the benefit of trial counsel during every

critical stage of her trial, as counsel was present from just

after the indictment through sentencing.            There was no showing

trial counsel did not "subject the prosecution's case to meaningful

adversarial testing."    Cronic, 466 U.S. at 667-68.       Trial counsel

cross-examined every witness introduced by the state, and made

every   effort   to   attempt   to    show   that   defendant   acted     in

passion/provocation instead of knowingly or purposefully.            There

is no presumption of prejudice stemming from counsel's trial

performance here.

     Nor has defendant made a showing that there was a "reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different."            Fritz, 105

N.J. at 52.      Though the jury was exposed to defendant at jury

selection, and despite the very real danger that defendant would

have had a violent outburst in front of the jury, defendant asserts

that seeing her at trial would have "humanized" her and made it

more likely the jury would find passion/provocation instead of

                                     14                            A-0338-16T3
first-degree murder.         However, there was substantial evidence

against defendant, including her statement, the witness testimony,

and the DNA evidence.         We note the strategy employed by trial

counsel   was   at   least   partially   successful,   as   defendant   was

acquitted of robbery and felony murder.

     Moreover, we rejected the issue of counsel's alleged failure

to insist on the model jury charge relating to defendant's absence

from trial on direct appeal, and we need not address it anew here.

     In conclusion, the PCR judge made a determination, detailed

in a lengthy and thorough written opinion, that defendant was not

prejudiced by any error made by trial counsel.         Defendant has not

made a showing that this determination is "so clearly mistaken

that the interest of justice demand intervention and correction."

Elders, 192 N.J. at 244.

     Affirmed.




                                    15                             A-0338-16T3
