                                NOT FOR PUBLICATION WITHOUT THE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-2566-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TIQUAN WHITEHURST,

     Defendant-Appellant.
___________________________

                    Submitted February 25, 2019 – Decided April 9, 2019

                    Before Judges Messano and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 07-06-1973.

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

                    Theodore N. Stephens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Lucille M.
                    Rosano, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      This appeal is before us for a third time. In 2008, a jury convicted

defendant Tiquan Whitehurst of two murders and related weapons offenses. The

judge sentenced defendant to two consecutive life terms, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction on direct

appeal and remanded for re-sentencing on the State's cross-appeal. State v.

Whitehurst, No. A-5035-08 (App. Div. Jan. 6, 2012) (Whitehurst I).          The

Supreme Court denied defendant's petition for certification.      210 N.J. 479

(2012).

      Defendant filed a petition for post-conviction relief (PCR), alleging

ineffective assistance of counsel (IAC). The PCR judge, who was not the trial

judge, denied the petition without an evidentiary hearing. State v. Whitehurst,

No. A-0511-15 (App. Div. Apr. 25, 2017) (Whitehurst II) (slip op. at 3). On

appeal, we rejected most of defendant's arguments and affirmed the denial of the

petition. Id. at 6-7, 9. However, we concluded a remand was necessary to

resolve an issue defendant presented for the first time on appeal in his pro se

supplemental brief. Id. at 8-9.

            [D]efendant argues PCR counsel was ineffective
            because he failed to bring to the PCR judge's attention
            the record of calls made to police on the evening of the
            murders. According to one entry in the "Event

                                                                        A-2566-17T2
                                       2
            Chronology" in the appendix to defendant's pro se brief,
            a caller claimed "suspects [were] on foot." Defendant
            contends this record would have provided valuable
            support for the "third-party guilt" defense asserted at
            trial.[1]

            [Id. at 4.]

Because of the inadequate record, we could not assess defendant's claim that

PCR counsel provided ineffective assistance.

            [W]e cannot conclude on the record before us that PCR
            counsel in this case failed to discharge his
            responsibilities under Rule 3:22-6(d). PCR counsel
            requested more time to prepare because trial counsel,
            who was under suspension, had failed to respond to

1
  For the balance of this opinion, we refer to that particular call as the 911 call.
We summarized the trial evidence at length in Whitehurst I. We reiterate the
summary we provided in Whitehurst II.

            [F]irst responders to a motor vehicle accident found
            both victims in the front[]seat of a car with mortal
            gunshot wounds and defendant unconscious in the
            backseat with a gun, later identified as the murder
            weapon, either in his hand or nearby. In a dying
            declaration, one victim told an EMT the "guy in the
            back seat shot me." Expert forensic testimony opined
            both victims were shot from behind at close range, and
            defendant's cellphone records revealed a series of
            twenty-two calls that day to one of the victim's phones.
            Defendant did not testify or present any witnesses at
            trial.

            [Id. at 2 (citations omitted).]



                                                                            A-2566-17T2
                                         3
            repeated requests to turn over his file, but the judge
            earlier had denied the request. Apparently, shortly
            before the hearing, trial counsel did produce the file,
            which PCR counsel characterized as lacking everything
            but the State's motion for an extended term. PCR
            counsel relied, in large part, upon discovery provided
            by the prosecutor. At the hearing, PCR counsel
            supplied a certification . . . signed the same day as the
            hearing.

                  Under these circumstances, it is apparent that
            PCR counsel was unable to fully investigate and assess
            the Event Chronology and have a meaningful
            discussion with his client regarding the document.
            These limitations were not the result of PCR counsel's
            ineffective assistance.

            [Id. at 8.]

We therefore remanded the matter "to permit defendant to supplement his

petition and provide further briefing and oral argument regarding the Event

Chronology." Ibid.

      Perhaps the precision of our language lent itself to the entirely inadequate

proceeding on remand. PCR counsel, who was not the original PCR counsel,

supplied only an unverified amended petition and defendant's unsigned

certification. Defendant said that he and original PCR counsel became "aware

of the 911 call on[e] week . . . prior to the [first] PCR hearing . . . ." Defendant

averred that the 911 call "proves that other individuals than myself were in the

back seat of the automobile and fled upon the car crashing." Defendant claimed

                                                                            A-2566-17T2
                                         4
trial counsel and PCR counsel provided ineffective assistance by not

"adequately investigat[ing] this issue."

        At the remand hearing, PCR counsel simply asked the judge to consider

the arguments made in his brief, as well as the issues "raised by the petitioner,"

and requested an evidentiary hearing. The prosecutor similarly relied on his

papers.2

        The judge reviewed the Event Chronology. He concluded, "the third-party

liability question . . . was thoroughly argued . . . at the time of the trial . . . and

the jury did hear all about it." The judge was unconvinced an evidentiary

hearing was warranted "based upon the materials" submitted. He noted the

Event Chronology "was printed sometime in December [] 2006 just at the time

of the incident[,]" but "[t]here's no reference . . . to the fact that this is a full and

complete copy[,]" or "what town this in fact applies to . . . ."

        Noting references in the Event Chronology to "a number of other people

trying to help the driver . . . out of the car[,]" the judge observed "[t]here's no

issue here with regard to whether in fact that person helping [the driver] out of

the car is in reference to the people . . . on foot or somebody else." The judge

continued:      "We have no idea how this particular item — the [E]vent


2
    The briefs are not part of the appellate record.
                                                                                 A-2566-17T2
                                           5
[C]hronology [—] came into possession of the defense. The certifications were

not signed."

      Observing the Event Chronology "wasn't referenced in the prior trial," the

judge determined that went "to the level of strategy by the defense counsel."

Returning to the inadequacy of the certification, the judge held:

                      There is no verification here that the document is
               fully complete. No references of where it has been for
               eight[-]and[-]a[-]half years between the time of the
               incident and the time of . . . the PCR hearing . . . .
               [T]here is no certification from the PCR counsel.

                      And the PCR counsel was here yesterday on
               another matter and [in] the [c]ourt's experience, that
               particular PCR counsel is very thorough and very
               exacting. And the fact that if it had been discussed with
               him previously to the last hearing[,] he would have[,]
               in fact[,] mentioned it. . . . [T]here was no mention at
               the time of . . . the prior argument before this [c]ourt.
               There's also no certification from him . . . in fact[,] the
               conversation [ever] occurred.

The judge concluded the Event Chronology was "triple hearsay," and he was

"not sure the document would have even gotten to the jury anyway."




                                                                             A-2566-17T2
                                           6
      The judge concluded defendant failed to meet either prong of the

Strickland/Fritz 3 standard for demonstrating IAC. He denied the petition and

this appeal followed.

      Before us, defendant argues he presented a prima facie IAC claim,

specifically, "counsels' egregious lack of pursuit — by way of the '[E]vent

[C]hronology'     (notwithstanding      being     hearsay,     the     lack     of

certification/verification) — to support third-party guilt." 4 Defendant argues he

was entitled to an evidentiary hearing. In a supplemental pro se brief, defendant

reiterates this argument. He also raises other claims already disposed of in our

decision in Whitehurst II.

      Our remand anticipated defendant would have the opportunity to explain

what was left unexplained after his first PCR hearing, i.e., when and under what

circumstances the Event Chronology came into his possession, and if and when

PCR counsel had the document. We noted in Whitehurst II that despite PCR

counsel's request for additional time, the judge refused to grant any further


3
  Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 52 (1987).
4
  By the use of the plural possessive "counsels'," we gather the argument is
meant to apply to both trial counsel and PCR counsel, but the brief never
specifies. Nor can we tell whether defendant includes second PCR counsel
within this claim.
                                                                          A-2566-17T2
                                        7
adjournment. (slip op. at 8). We are not critical of the judge's decision in this

regard, because we understand efforts to obtain defendant's file from suspended

trial counsel caused significant delay. We mention it only because it provided

support for our conclusion that the existing PCR record was inadequate.

      Although our opinion in Whitehurst II did not compel an evidentiary

hearing on remand, we certainly expected second PCR counsel would comport

himself as required by the Court's holdings in State v. Rue, 175 N.J. 1 (2002),

and State v. Webster, 187 N.J. 254 (2006). At the least, we expected defendant

would explain through certifications the circumstances surrounding his

possession of the Event Chronology. We anticipated that defendant would

produce, if possible, a certification from first PCR counsel regarding his

knowledge, or lack thereof, of the document.

      Instead, the record before us reflects that second PCR counsel produced

only an unsigned certification from defendant that added virtually nothing to

elucidate the circumstances surrounding the Event Chronology. Moreover, there

is no explanation in the record as to whether second PCR counsel attempted to

do anything more.

      Of course, these are significant failings. The judge focused his attention

on the unsigned nature of the certification. He also noted the apparent ready


                                                                          A-2566-17T2
                                       8
availability of first PCR counsel, who was in the judge's courtroom the day

before.

      In short, second PCR "counsel's performance failed to meet the standards

imposed by Rule 3:22-6(d) because there is no evidence that defendant received

the presumed benefits of having his case independently reviewed by a trained

legal professional." State v. Hicks, 411 N.J. Super. 370, 377 (App. Div. 2010).

We therefore reluctantly remand the matter again, and order that third PCR

counsel be appointed forthwith. We again do not compel an evidentiary hearing,

but we remind the judge that in deciding whether a defendant has presented a

prima facie case, our rules entitle a PCR defendant to have the court "view[] the

facts alleged in the light most favorable" to him. R. 3:22-10(b).

      We also order that a different judge conduct the remand because the PCR

judge has made determinations inconsistent with the existing record and without

the benefit of information we specifically anticipated the first remand would

develop. For example, noting the unpersuasive nature of the Event Chronology,

the judge found it failed to specify "what town" it applied to.        A simple

comparison of entries in the document to the location of the murder scene, as

explained in the trial testimony and Whitehurst I, demonstrates at least some of

the various 911 phone calls involve this case. The judge speculated that the 911


                                                                         A-2566-17T2
                                       9
call of "suspects are on foot" could actually reference people who tried to help

one of the victims out of the car, also referenced in other calls.           Most

importantly, although recognizing the paucity of information supplied by second

PCR counsel, noting, "[w]e have no idea how . . . — the [E]vent [C]hronology

[—] came into possession of the defense[,]" the judge nevertheless concluded

trial counsel had the document and his choice not to utilize it any way was

strategic.

      We do not speculate as to the circumstances surrounding the Event

Chronology and whether trial counsel, if he had the document, would have used

it in some way, even if only to further his investigation. It suffices to say,

however, that third-party guilt was the defense at trial. Trial counsel argued that

all of the forensic evidence revealed nothing other than defendant's presence in

the car. He noted that according to the State's ballistic expert, when found, the

murder weapon evidenced a malfunction that prevented it from firing again

unless someone manually ejected the bullet in the chamber. Defense counsel

argued that defendant was an intended target of the unidentified shooter, spared

only by this malfunction.

      Defense counsel explained that one of the two shell casings found at the

scene was outside the car and a distance from where the crash occurred. He


                                                                           A-2566-17T2
                                       10
noted that police found a single sneaker on the street some distance from the car,

and that defendant had both shoes on his feet. Under these circumstances, we

fail to see how the PCR judge could conclude on this record that trial counsel

made a strategic decision regarding the Event Chronology.

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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                                       11
