                            NOT FOR PUBLICATION WITHOUT THE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-4600-16T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

TELIK K. PITTMAN a/k/a CARL T.
PITTMAN, TELIK C. PITTMAN, KARL
T. PITTMAN, and KARL PITTMAN,

     Defendant-Appellant.
__________________________________________

                Submitted September 13, 2018 – Decided September 21, 2018

                Before Judges Fuentes and Vernoia.

                On appeal from Superior Court of New Jersey, Law
                Division, Middlesex County, Indictment No. 08-10-
                1678.

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

                Andrew C. Carey, Middlesex County Prosecutor,
                attorney for respondent (David M. Liston, Assistant
                Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Telik K. Pittman appeals from a May 4, 2017 order denying his

post-conviction relief (PCR) petition without an evidentiary hearing. We affirm

because the PCR court correctly determined defendant failed to establish a prima

facie claim of ineffective assistance of counsel and therefore was not entitled to

an evidentiary hearing.

                                        I.

      We described the facts underlying the criminal charges against defendant

and his co-defendant Travis Myers in our opinion on defendant's direct appeal,

State v. Telik K. Pittman, No. A-1141-12 (App. Div. July 29, 2015) (slip op. at

2-7), and briefly summarize the pertinent facts here. Defendant and Myers were

charged in an indictment with offenses arising from "the shooting of two victims

during a drug transaction." Id. at 2. More particularly, they were charged with

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

N.J.S.A. 2C:11-3(a)(3); first-degree attempted murder N.J.S.A. 2C:5-1 and

N.J.S.A. 2C:11-3(a)(1); first-degree armed robbery, N.J.S.A. 2C:15-1; second-

degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a);

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

degree possession of a controlled dangerous substance, cocaine, with intent to


                                                                          A-4600-16T1
                                        2
distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); third-degree

possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-

10(a)(1); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:11-3(a)(1) or (2); first-degree conspiracy to commit felony murder,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(3); and second-degree conspiracy to

commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.

      Myers pleaded guilty to manslaughter and testified against defendant at

his trial. Pittman, slip op. at 2. Myers admitted shooting the victims, but

asserted he was ordered at gunpoint by defendant to do so. Id. at 6. Defendant

testified he was present with Myers, received cocaine from the murdered victim

just prior to the shooting and intended to sell the cocaine. Id. at 6-7. Defendant

denied he planned to rob the victim who supplied him with the cocaine, id. at 6,

and testified he was not armed, "did not know Myers had a gun and would use

it against the victims" and did not coerce Myers to shoot the victims, id. at 2.

      Defendant was acquitted of all charges except two drug offenses he

"admitted in presenting his defense at the trial." Ibid. Defendant was convicted

of second-degree possession of cocaine with intent to distribute and third-degree

possession of cocaine.     Ibid.   The court subsequently merged defendant's

conviction for the third-degree offense with the second-degree offense.


                                                                          A-4600-16T1
                                        3
       At sentencing, the court noted that the jury "was not convinced of"

defendant's guilt on the charges related to the murder and assault of the victims,

and observed that "the circumstances of [the] drug deal . . . suggest a certain

level of depravity that concern[ed] the [c]ourt[,] particularly in light of the fact

that [the] individual from whom [defendant] had just bought drugs [had] been

shot, . . . [and d]efendant fled unconcerned about [the cocaine supplier's]

welfare." The court also stated that defendant did not aid the victims or summon

any help after they were shot, and "left the [cocaine supplier] there to die along

with his girlfriend . . . ."

       The court found aggravating factor three, the risk defendant would

continue to violate the law, N.J.S.A. 2C:44-1(a)(3), based on defendant's

"extensive criminal history," and because defendant committed the crimes for

which he was being sentenced while he was a fugitive awaiting sentence on other

charges. The court also found aggravating factor six, the extent of defendant's

prior record and the seriousness of the offense for which he was being sentenced,

N.J.S.A. 2C:44-1(a)(6), based on defendant's prior criminal history and his

present conviction of a second-degree offense. Last, the court found aggravating

factor nine, the need to deter defendant and others from violating the law,




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                                         4
N.J.S.A. 2C:44-1(a)(9), based on "[d]efendant's significant criminal history and

the nature of the offense of this case."

      The court did not find any mitigating factors, see N.J.S.A. 2C:44-1(b)(1)

to (13), and determined there was a preponderance of aggravating factors. The

court imposed an extended term seventeen-year sentence on the second-degree

possession with intent to distribute charge in accordance with N.J.S.A. 2C:43-

6(f), with an eight-and-a-half-year period of parole ineligibility.

      We affirmed defendant's conviction and sentence on his direct appeal.

Pittman, slip op. at 17.     We rejected defendant's claim his sentence was

unconstitutional because the court engaged in impermissible fact-finding by

relying on his prior convictions to support its imposition of the extended term

sentence under N.J.S.A. 2C:43-6(f). Id. at 12-16. We also rejected defendant's

challenge to the aggregate sentence and parole ineligibility period, finding "no

legal error or abuse of discretion in the sentence imposed . . . ." Id. at 17. The

Supreme Court denied defendant's petition for certification. State v. Pittman,

223 N.J. 556 (2015).

      Defendant filed a pro se PCR petition, which did not detail any facts or

arguments explaining the basis for the requested relief.              Following the

appointment of counsel, defendant filed an amended verified petition, which


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                                           5
incorporated by reference arguments defendant asserted were set forth in a brief

submitted with his initial pro se petition.1 Defendant claimed the sentencing

court could not properly consider the circumstances surrounding the shootings

of the victims and his failure to render aid to the victims because he was not

convicted of any crimes based on those circumstances. He asserted that his trial

counsel was ineffective by failing to object to the sentencing court's reliance on

those circumstances, and his appellate counsel was ineffective by failing to raise

the issue on appeal. 2

      The PCR court heard oral argument and denied defendant's petition

without an evidentiary hearing. The PCR court first determined that any claim

defendant's sentence is improper or excessive is barred by Rule 3:22-5 because

the claim was adjudicated on defendant's direct appeal, where it was determined

there was no legal error in the trial court's imposition of sentence.


1
  Defendant's amended verified petition refers to a pro se brief submitted in
support of his initial petition. The brief is not included in the record on appeal.
2
   Defendant also submitted a certification to the PCR court asserting that he
never had direct communications with his appellate counsel prior to disposition
of his direct appeal. The PCR court rejected defendant's claim his appellate
counsel was ineffective based on the purported failure to communicate, finding
defendant made no showing he suffered any prejudice as a result of the alleged
failure. We do not address the issue because defendant does not argue the PCR
court erred by rejecting the claim.


                                                                           A-4600-16T1
                                         6
      The PCR court also rejected defendant's claim his trial counsel and

appellate counsel were ineffective. The PCR court determined defendant failed

to demonstrate counsel were ineffective because although the sentencing court

referred to the circumstances surrounding the shootings and defendant's failure

to provide aid, its finding of the aggravating and mitigating factors supporting

the sentence were based solely on defendant's criminal record. Thus, the PCR

court determined defendant did not establish that either his trial or appellate

counsel were ineffective, or that there is a reasonable probability that but for

their alleged errors the result of either the sentencing proceeding or direct appeal

would have been different. The court entered an order denying the PCR petition

without an evidentiary hearing. This appeal followed.

      Defendant presents the following argument for our consideration:

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY HEARING BECAUSE DEFENDANT
            ESTABLISHED A PRIMA FACIE CASE OF TRIAL
            AND APPELLATE COUNSELS' INEFFECTIVENESS
            FOR NOT PURSUING THE COURT'S IMPOSING A
            SENTENCE BASED ON THE BELIEF THAT THE
            JURY RENDERED UNJUST VERDICTS IN
            DEFENDANT'S FAVOR.

                                        II.

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of

                                                                            A-4600-16T1
                                         7
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies

to mixed questions of fact and law. Id. at 420. Where, as here, an evidentiary

hearing has not been 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.

We apply that standard here.

      An evidentiary hearing on a PCR petition is required where a defendant

establishes a prima facie case for PCR under the standard established by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686

(1984), and the existing record is inadequate to resolve defendant's claim, State

v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)); see also State v.

Preciose, 129 N.J. 451, 462-63 (1992). Under Strickland, a defendant first must

show that his or her attorney's handling of the matter "fell below an objective

standard of reasonableness." Strickland, 466 U.S. at 688; see also State v. Fritz,

105 N.J. 42, 58 (1987). A defendant also must show there exists 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; see also

Fritz, 105 N.J. at 60-61.

      Here, defendant claims the PCR court erred because his trial and appellate

counsel were ineffective by failing to challenge the sentencing court's purported


                                                                          A-4600-16T1
                                        8
reliance on the circumstances related to the shootings and defendant's failure to

provide aid to the victims after they were shot. Defendant's argument is belied

by the record.

        In the first instance, appellate counsel's brief on the direct appeal included

an assertion that the sentencing court erred by considering the circumstances

related to the murder in its imposition of sentence. More particularly, appellate

counsel argued that "[i]t was improper for the [sentencing] court to consider the

circumstances surrounding the homicide because defendant was acquitted of all

related charges." As noted, we affirmed defendant's sentence and determined it

was not the result of any legal error. Pittman, slip op. at 17.

        Defendant's argument is also founded on the false premise that the

sentencing court relied on the circumstances related to the shootings, and

defendant's failure to provide aid to the victims, as the bases for the sentence

imposed. The court's findings of aggravating and mitigating factors , however,

are untethered to those circumstances.         The court instead relied solely on

defendant's criminal history in its finding of the aggravating and mitigating

factors supporting the sentence we determined contained no legal error. See

ibid.




                                                                              A-4600-16T1
                                           9
      Defendant therefore could not establish his counsel were ineffective by

failing to argue the sentencing court's reliance on the circumstances surrounding

the shootings or defendant's failure to provide aid to the victims was improper.

Any such argument would have been meritless because the sentencing court

simply did not rely on those circumstances in its imposition of sentence. An

attorney is not ineffective by failing to make a meritless legal argument. State

v. Worlock, 117 N.J. 596, 625 (1990). Defendant therefore failed to satisfy the

first prong of the Strickland standard.

      Defendant also failed to demonstrate that but for his counsel's alleged

errors there is a reasonable probability the result of either his sentencing

proceeding or his direct appeal would have been different. See Strickland, 466

U.S. at 694. To satisfy his burden of establishing a reasonable probability the

results of the proceedings would have been different, defendant is required to

establish "a probability sufficient to undermine confidence in the outcome."

Ibid. Defendant did not, and could not, satisfy this burden because even if his

trial counsel objected to the court's statements concerning the shootings and his

failure to provide aid, and appellate counsel had failed to raise the issue on

appeal, the result of the proceedings would have been the same. Again, that is

because the sentencing court did not rely on the circumstances surrounding the


                                                                         A-4600-16T1
                                          10
shooting or defendant's failure to provide aid to the victims in its imposition of

sentence.

      We are convinced the PCR court correctly determined defendant failed to

sustain his burden under both prongs of the Strickland standard. A failure to

satisfy either prong of the Strickland standard requires the denial of a PCR

petition, Strickland, 466 U.S. at 700, without an evidentiary hearing, Porter, 216

N.J. at 355.

      Affirmed.




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                                       11
