                        NOT FOR PUBLICATION WITHOUT THE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-0375-16T4

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

TAMASA T. NOBLES,

          Defendant-Appellant.
________________________________

              Submitted July 9, 2018 – Decided July 19, 2018

              Before Judges Yannotti and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              13-05-1391.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Anderson D. Harkov, Designated
              Counsel, on the brief).

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (John J. Santoliquido, Special
              Deputy Attorney General, of counsel and on the
              brief).

PER CURIAM
     Defendant Tamasa T. Nobles appeals from the August 29, 2016

Law Division order denying her petition for post-conviction relief

(PCR) without an evidentiary hearing.                We affirm.

     According to Kedron Henry, who was defendant's neighbor and

an eyewitness to the event, defendant stabbed and killed her former

boyfriend,     Devon   Devine,         following     an     argument   in    Henry's

apartment.     Henry told the police he frequently heard defendant

and Devine arguing, and that Devine had hit defendant on prior

occasions.     However, Devine had recently moved out of defendant's

apartment.

     On   December     2,   2012,      Devine   was       visiting   Henry    in   his

apartment.      As they were talking, defendant came in and asked

Devine to return his key to her apartment.                   Devine denied having

the key and the former couple began to argue.                 Defendant then went

into Henry's kitchen, picked up a knife, and began to brandish it

at Devine.     Henry grabbed her and told her to give him the knife.

She did so, and Henry put the knife back in the kitchen.

     Defendant began wrestling with Devine in the other room.

After defendant "broke a pair of ear phones that belonged to"

Devine,   he   punched      her   in    the   leg,    and    defendant      left   the

apartment.     Henry and defendant waited a few minutes and then went

outside, where they found defendant waiting for them with "one



                                          2                                   A-0375-16T4
hand tucked in front of her body."    Devine and Henry retreated

into Henry's apartment, and defendant followed them inside.

     Henry saw that defendant was carrying another knife and he

attempted to restrain her.    He yelled to Devine to "flee the

residence[,]" and Devine went down the front stairwell.       Henry

held on to defendant and, thinking Devine had gotten out the front

door, released his grip on her. Defendant went down the stairwell,

and Henry pursued her.   As he did, Henry saw that Devine had not

yet left the apartment, and was standing by the front door.       At

that point, defendant stabbed Devine once in the chest and he

later died as the result of the wound.    When the police arrived

at the scene, they found "no fresh bruises" on defendant, or any

"marks on her face indicating she had been hit[.]"

     Based upon this evidence, a grand jury returned a three-count

indictment charging defendant with first-degree murder, N.J.S.A.

2C:11-3(a)(1) and (2) (count one); third-degree possession of a

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

and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d) (count three).

     In preparation for trial, defendant's attorney retained an

expert psychologist to evaluate defendant and prepare a report to

assist the attorney in determining whether defendant could present

evidence that she was the victim of Battered Women's Syndrome.    As

                                3                          A-0375-16T4
our Supreme Court has explained, "Battered Women's Syndrome is

recognized as 'a collection of common behavioral and psychological

characteristics exhibited in women who repeatedly are physically

and emotionally abused over a prolonged length of time by the

dominant male figure in their lives.'"        State v. Hess, 207 N.J.

123, 149 (2011) (quoting State v. B.H., 183 N.J. 171, 182 (2005)).

"Evidence of the syndrome is admissible, typically in self-defense

cases, to 'explain conduct exhibited by battered women toward

their abusers'" and to "help[] our understanding of 'why a woman

remains in an abusive relationship' and why an 'abused woman may

have become conditioned into believing that she is powerless to

escape from the abuse.'"      Ibid. (quoting B.H., 183 N.J. at 183).

     The psychologist prepared a written report which the attorney

reviewed with defendant on a number of occasions.             While the

psychologist opined that defendant suffered from a combination of

"Posttraumatic   Stress      Disorder   and    Persistent    Depressive

Disorder[,]"   she   could   only   state   that   this   condition   was

"sufficient to have potentially negated at least one mental element

of the charged crime, the purposeful intent to cause . . . Devine's

death."   (Emphasis added).    The psychologist also stated that the

prior domestic violence defendant suffered in the relationship

"may have contributed to her formation of an honest, reasonable

belief that she had to defend herself against further episodes of

                                    4                            A-0375-16T4
violence with deadly force[.]"                (Emphasis added).          Thus, the

psychologist did not draw a definitive conclusion in her report.

      At   the   pre-trial   conference,        defendant      decided   to    plead

"open" to an amended charge under count one of first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(e), for which she faced

the possibility of a thirty-year sentence.                  The judge indicated

that the sentence he would impose would not exceed twenty-two

years in prison, subject to the 85% parole ineligibility period

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

7.2., and that counts two and three would be dismissed.                       See R.

3:9-3(c) (permitting the judge to accept a non-negotiated plea and

indicate the maximum sentence he or she would impose, conditioned

on review of the defendant's presentence report).

      Before     accepting   the    plea,     the   trial   judge   conducted      a

thorough voir dire of defendant and her understanding of the plea.

Defendant    acknowledged    that    her      attorney   had    "explained"      the

expert's report to her and answered all of her questions about it.

Defendant also stated that the attorney met with her "[t]oo many

[times] to count" during the eighteen months she represented her.1

Defendant then gave a factual basis for her guilty plea. Convinced

by   defendant's    testimony      that   she   was   acting     "knowingly      and


1
  The attorney told the judge that she met with defendant "almost
every week" during these eighteen months.

                                          5                                A-0375-16T4
voluntarily, [and] with the advice of competent counsel," the

judge accepted defendant's plea.

     At sentencing, defendant's attorney used the expert's report

to bolster her argument that mitigating factor four, N.J.S.A.

2C:44-1(b)(4), should be considered to reduce defendant's sentence

because the prior domestic violence she suffered might "tend[] to

excuse or justify [her] conduct, though failing to establish a

defense[.]"     Pointing to a written statement Henry gave to the

police, the attorney also asserted that defendant acted "under a

strong   provocation"   and,    therefore,   mitigating   factor    three,

N.J.S.A. 2C:44-1(b)(3), should also be applied.2

     In response to the attorney's arguments, the judge found both

mitigating    factors   three    and     four,   and,   based   upon    his

consideration    of   these    and   other   relevant   aggravating     and

mitigating factors, sentenced defendant to twenty years in prison,

subject to NERA, on count one.         This was two years less than the

sentence the judge had indicated would be imposed prior to hearing

and considering the attorney's contentions.




2
  In Point III of her brief, defendant alleges for the first time
on appeal that her attorney failed to mention Henry's written
statement at the sentencing hearing.     However, this contention
lacks factual support in the record because the attorney obviously
raised and relied upon this statement in her arguments to the
sentencing judge.

                                     6                             A-0375-16T4
     Defendant appealed her sentence.    We heard the appeal on our

Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-

11, and affirmed defendant's sentence.

     Defendant later filed a petition for PCR contending, among

other things, that the assistance her trial attorney provided was

ineffective because the attorney failed to "pursue the battered

wom[en's] syndrome" as a defense.      Defendant also asserted her

attorney did not adequately contest the application of certain

aggravating factors at sentencing or raise appropriate mitigating

factors.

     In a thorough written opinion, Judge Damon G. Tyner considered

both of these contentions and denied defendant's petition.        The

judge concluded that defendant failed to satisfy the two-prong

test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which

requires a showing that trial counsel's performance was deficient

and that, but for the deficient performance, the result would have

been different.

     Judge Tyner determined that defendant's first contention was

nothing more than a "baseless" attack on the strategy employed by

her trial attorney.   The judge found that other than defendant's

"bald assertion" that a self-defense argument would have been

successful,   she   "offer[ed]   no   evidence"   to   support   this

allegation.   Instead, Henry told the police that defendant pursued

                                 7                           A-0375-16T4
Devine twice with a knife before killing him as the victim was

attempting to flee the apartment.            Thus, there was "no valid claim

for   self-defense."        Judge    Tyner    also   noted     that     defendant's

attorney retained an expert, reviewed the expert's report, and

discussed the matter "numerous times" with defendant.                    Thus, the

judge concluded "it [was] clear from the record . . . that trial

counsel pursued the [Battered Women's Syndrome], but did not see

it as a viable trial defense."

      Turning to defendant's second argument, Judge Tyner found

that defendant's attorney submitted a "lengthy brief prior to the

sentencing date that outlined all of the aggravating and mitigating

factors for the court."             The attorney also reiterated these

arguments at the sentencing hearing, and asked the court to impose

an eight-year sentence based on the expert's report, Henry's

statement to the police, and a host of other arguments.                          The

attorney also presented two witnesses to speak on defendant's

behalf.   As a result of the attorney's efforts, the judge imposed

a   sentence   that   was   two     years    less    than    he   had   originally

indicated.     Under these circumstances, the judge ruled that the

attorney was clearly not ineffective.

      Finally, the judge determined that an evidentiary hearing was

not required because defendant failed to present a prima facie

case of ineffective assistance of counsel.                  The judge also found

                                        8                                   A-0375-16T4
that   "all    of   the   facts    [were]   laid   out   in   the   briefs   and

transcripts submitted" and "[t]here [was] no evidence outside of

the record that would be useful in resolving the issue at hand."

This appeal followed.

       On appeal, defendant raises the following contentions:

              POINT ONE

              THE PCR COURT ERRED WHEN IT FAILED TO GRANT
              DEFENDANT'S  REQUEST  FOR   AN  EVIDENTIARY
              HEARING.

              POINT TWO

              AS A RESULT OF TRIAL COUNSEL'S FAILURE TO
              ADEQUATELY EXPLAIN TO DEFENDANT THE BATTERED
              [WOMEN'S] SYNDROME AND ITS RELEVANCE TO A
              CLAIM OF SELF[-]DEFENSE, DEFENDANT DID NOT
              ENTER A KNOWING AND VOLUNTARY PLEA BECAUSE SHE
              LACKED   A    FULL   UNDERSTANDING    OF   THE
              CONSEQUENCES   OF   HER  GUILTY   PLEA,   THUS
              DEPRIVING HER OF HER CONSTITUTIONAL RIGHT TO
              THE EFFECTIVE ASSISTANCE OF COUNSEL.

              POINT THREE

              THE PCR COURT ERRED WHEN IT FAILED TO GRANT
              DEFENDANT A NEW SENTENCE HEARING AS A RESULT
              OF TRIAL COUNSEL'S FAILURE TO INCLUDE CRITICAL
              MITIGATING EVIDENCE IN HER SENTENCING BRIEF
              AND ORAL ARGUMENT:    THE FORMAL STATEMENT OF
              KEDRON HENRY.

       When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled

to the requested relief.          State v. Nash, 212 N.J. 518, 541 (2013);

State v. Preciose, 129 N.J. 451, 459 (1992).                  To sustain that


                                        9                               A-0375-16T4
burden, the defendant must allege and articulate 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).

      The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing and the defendant "must do

more than make bald assertions that he was denied the effective

assistance of counsel."        State v. Cummings, 321 N.J. Super. 154,

170   (App.   Div.    1999).     Rather,   trial   courts   should     grant

evidentiary hearings and make a determination on the merits only

if the defendant has presented a prima facie claim of ineffective

assistance.    Preciose, 129 N.J. at 462.

      There is a strong presumption that counsel "rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment."         Strickland, 466 U.S. at 690.

Further, because prejudice is not presumed, State v. Fritz, 105

N.J. 42, 52 (1987), the defendant must demonstrate "how specific

errors of counsel undermined the reliability" of the proceeding.

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

      Moreover, such acts or omissions of counsel must amount to

more than mere tactical strategy.          Strickland, 466 U.S. at 689.

As the Supreme Court observed in Strickland,

           [a] fair assessment of attorney performance
           requires that every effort be made to
           eliminate the distorting effects of hindsight,

                                    10                               A-0375-16T4
           to reconstruct the circumstances of counsel's
           challenged conduct, and to evaluate the
           conduct from counsel's perspective at the
           time.   Because of the difficulties inherent
           in making the evaluation, a court must indulge
           a strong presumption that counsel's conduct
           falls within the wide range of reasonable
           professional   assistance;    that   is,   the
           defendant must overcome the presumption that,
           under the circumstances, the challenged action
           "might be considered sound trial strategy."

           [Strickland, 466 U.S. at 689 (quoting Michel
           v. Louisiana, 350 U.S. 91, 101 (1955)).]

     Having considered defendant's contentions in light of the

record and the applicable law, we affirm the denial of defendant's

PCR petition substantially for the reasons detailed at length in

Judge   Tyner's   comprehensive   written   opinion.      The    judge's

conclusion that defense counsel's handling of the expert report

was sound, tactical strategy is firmly grounded in the record.

The record also fully supports the judge's determination that the

attorney   effectively   represented   defendant   at   the   sentencing

hearing.   Under these circumstances, the judge was not required

to conduct an evidentiary hearing on defendant's PCR application.

Preciose, 129 N.J. at 462.

     Affirmed.




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