                                NOT FOR PUBLICATION WITHOUT THE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-5735-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NICHOLAS M. BARONE,

     Defendant-Appellant.
____________________________

                    Submitted October 30, 2019 – Decided January 14, 2020

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment Nos. 10-03-0542,
                    10-12-2127, and 11-04-0710.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel, on
                    the briefs).

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; Shiraz I. Deen,
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Nicholas M. Barone appeals from a February 7, 2018 order

denying his petition for post-conviction relief (PCR) without a hearing. We

have considered defendant's arguments in light of the record and applicable law.

We affirm.

      Defendant raises the following issues on appeal.

             POINT I: MR. BARONE IS ENTITLED TO RELIEF
             ON HIS CLAIM THAT HIS ATTORNEY
             RENDERED INEFFECTIVE ASSISTANCE OF
             COUNSEL BY FAILING TO ADVOCATE
             ADEQUATELY AT SENTENCING.

             POINT 2: THIS MATTER MUST BE REMANDED
             FOR FINDINGS OF FACT AND CONCLUSIONS OF
             LAW ON MR. BARONE'S PRO SE CLAIMS.

      Within thirteen months between March 30, 2010 and April 19, 2011,

defendant was indicted three separate times for various charges including third -

degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-

10(a)(1); first-degree possession of a CDS with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6); second-degree possession of a CDS

with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); second-

degree possession of both a knife and handgun while engaged in drug activity ,

N.J.S.A. 2C:39-4.1(c) and N.J.S.A. 2C:39-4.1(a); fourth-degree unlawful

possession of a knife, N.J.S.A. 2C: 39-5(d); second-degree eluding, N.J.S.A.


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2C:29-2(b); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3); and second-

degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7(b),

(certain persons).    Defendant moved unsuccessfully to suppress evidence

retrieved from his person after a pat-down search incident to his arrest.

      On February 26, 2013, defendant pled guilty to first-degree possession of

CDS with intent to distribute, second-degree eluding, second-degree possession

of CDS with intent to distribute, second-degree possession of a firearm while

engaged in drug activity and second-degree certain persons. In exchange for the

plea, the State agreed to dismiss the remaining counts of the indictments and

would ask for a term of fifty years with a twenty-five-year period of parole

ineligibility. Defendant reserved the right to ask for thirty years in state prison

with a fifteen-year parole ineligibility.

      On May 3, 2013, the court found aggravating factors three, six, and nine,

and no mitigating factors and sentenced defendant to an aggregate thirty years

with fifteen years of parole ineligibility.

      On July 25, 2013, defendant appealed the denial of his suppression

motion. On June 16, 2015, we denied that appeal and affirmed his sentence.

State v. Barone, No. A-5630-12 (App. Div. June 16, 2015) (slip op. at 1-5).




                                                                            A-5735-17T1
                                            3
      On February 27, 2017, defendant filed a petition for PCR and on February

7, 2018, the PCR court denied defendant's petition by written decision without

an evidentiary hearing. This appeal followed.

      On appeal defendant contends the PCR court erred in finding his attorney

did not render ineffective assistance because his attorney failed to advocate for

a lower sentence and mitigating factor eleven. Defendant also asserts that the

matter must be remanded because the PCR court failed to make findings of fact

and conclusions of law as to his pro se claims. We disagree.

      Defendant's claim of counsel ineffectiveness for failing to present

additional mitigating factor eleven is no more than an excessive sentencing

argument cloaked in "ineffective assistance of counsel" language.           Such

excessive sentencing claims, however, are not cognizable on PCR review.

Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 3:22-2 (2020); State

v. Acevedo, 205 N.J. 40, 45-46 (2011). It is also procedurally barred in this

matter under Rule 3:22-5 as either previously raised and decided, or capable of

having been so raised pursuant to Rule 3:22-4.

      We are also not persuaded by defendant's additional assertions he is

entitled to a hearing. The only assertion of ineffective assistance of counsel

raised in defendant's pro se PCR petition was that his counsel did not call a


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                                       4
witness, at his suppression hearing and did not advise him of the imposition of

an "ordinary term of imprisonment."          To establish a claim for ineffective

assistance of counsel, a defendant must satisfy a two-part test: 1) defendant must

show that his attorney's performance was deficient; and 2) the "deficient

performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668,

687 (1984); see also State v. Fritz, 105 N.J. 42, 49-53 (1987) (adopting the

standard in Strickland). 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).

      PCR petitions must be "accompanied by an affidavit or certification by

defendant, or by others, setting forth with particularity," State v. Jones, 219 N.J.

298, 312 (2014), "facts sufficient to demonstrate counsel's alleged substandard

performance," ibid. (quoting State v. Porter, 216 N.J. 343, 355 (2013) (citation

omitted)). When a defendant asserts that his or her counsel failed to call

exculpatory witnesses, "he [or she] must assert the facts that would have been

revealed, 'supported by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the certification.'"         State v.


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                                         5
Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999)). Here, all of the purported factual

allegations supporting defendant's claim, that trial counsel's performance was

deficient, are untethered to any competent evidence and therefore, defendant has

failed to demonstrate he received ineffective assistance.

      Defendant's other arguments are without sufficient merit to warrant

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

      Affirmed.




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