                            NOT FOR PUBLICATION WITHOUT THE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-3641-18T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

LEON PETERSON, a/k/a
LEON PETERSEN,

     Defendant-Appellant.
_______________________

                Submitted May 18, 2020 – Decided July 9, 2020

                Before Judges Sumners and Natali.

                On appeal from the Superior Court of New Jersey, Law
                Division, Atlantic County, Indictment No. 11-11-2778.

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

                Damon G. Tyner, Atlantic County Prosecutor, attorney
                for respondent (Nicole Lynn Campellone, Assistant
                Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Leon Peterson appeals from a February 19, 2019 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing.

Having reviewed the record in light of the applicable legal standards, we reverse

and remand for an evidentiary hearing regarding defendant's claims that his

appellate counsel and second trial counsel were ineffective.

                                       I.

      Defendant raises the following sole issue on appeal:

      POINT I

            THIS MATTER MUST BE REMANDED FOR AN
            EVIDENTIARY      HEARING     BECAUSE
            DEFENDANT ESTABLISHED A [PRIMA FACIE]
            CASE THAT APPELLATE COUNSEL AND
            SECOND TRIAL COUNSEL WERE INEFFECTIVE
            FOR NOT PURSUING THAT HIS WEAPONS
            CONVICTIONS BE VACATED.

      We briefly discuss the procedural history, including the facts underlying

defendant's convictions, as they provide context for our opinion. Following a

jury trial, defendant, along with Brandon Cooper and Brent Johnson, were

convicted of one count of first-degree armed robbery, contrary to N.J.S.A.

2C:15-1; one count of conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-

2 and 2C:15-1; one count of possession of a handgun for an unlawful purpose,




                                                                         A-3641-18T1
                                       2
contrary to N.J.S.A. 2C:39-4(a); and one count of unlawful possession of a

weapon, contrary to N.J.S.A. 2C:39-5(b).

        On the evening of May 27, 2011 and into the early morning hours of May

28, 2011, S.J.1 was at the Tropicana Hotel with friends. At some point during

the early morning, S.J. left her hotel room with a friend, M.S. They decided to

go to the parking garage to smoke a cigarette.

        S.J. and M.S. were only on the parking deck for a few minutes when they

were approached by a group of three men. One of the men asked M.S. for a

cigarette, then punched him. On seeing this, S.J. ran toward the elevator, and

M.S. followed. M.S. and S.J. made it to the elevator lobby, but the men caught

up.    The men hit M.S. again, while someone wearing a purple shirt, later

identified as Cooper, pulled S.J. back into the parking garage.

        The men proceeded to kick, punch, and beat M.S., who fell to the ground,

and eventually was knocked unconscious. During the attack, M.S. felt someone

searching through his pockets. While he could not see the faces of his assailants

because he was trying to protect his head, he was able to identify the clothing of

his three attackers. He saw that one was wearing purple, one was wearing orange

shorts, and the third was wearing a checkered shirt. He did not see any weapons


1
    We use initials of the victims to protect their privacy.
                                                                          A-3641-18T1
                                          3
during the attack. Cooper stayed with S.J. while the other assailants attacked

M.S.

       Around the time of the attack, Kenneth Wicks, a patron of the casino that

evening, left the casino with his friend Steven Petosa and went to the parking

garage. When Wicks and Petosa got off the elevator, Wicks walked into the

garage and observed M.S. lying on the ground with blood coming out of his

nose. The two men standing over M.S. claimed that he was their friend and was

drunk. Wicks did not believe them and went back into the lobby to tell his

friend. When Petosa went into the garage and saw M.S. covered in blood, he

asked what had happened. M.S. replied that the men standing around him had

mugged him, he was hurt, and he needed help.

       At this point, one man lifted his shirt and showed the men the handle of a

gun. As he displayed the gun, he said, "You should get out of here before

something happens." Wicks and Petosa immediately left the area, and Petosa

called 9-1-1. They began to drive away but returned out of concern for the

victim. By the time they returned, the attack was over, and no one involved was

in the area.

       After the men stopped assaulting M.S. and he regained consciousness, the

men took his shirt from him, and told him to walk to the other side of the parking


                                                                          A-3641-18T1
                                        4
deck. As he was walking away, he saw the man in the purple shirt holding S.J.

"like hugging her very closely from behind," while the man wearing orange was

walking "a little bit in front of her." After he completed his walk, one of the

men told him to take off the rest of his clothes, so he removed the remainder of

his clothes except for his underwear.

      Near the end of the incident with Cooper and Johnson, S.J. was able to run

away toward the elevators. However, the men caught up with her and forced her

to get into the elevator with them as they wanted to go to her hotel room. When

the elevator doors opened next, the police were waiting and arrested the two

men. The police searched both men and found a black handgun and M.S.'s cell

phone on Johnson. A search of Cooper did not reveal any items. In the course

of processing the arrests, the police identified Cooper as the man wearing the

purple shirt, and Johnson as the man wearing the tan shirt and orange shorts.

      When Officer Michael Losasso responded to the Tropicana hotel, security

directed his attention to an individual acting suspiciously, later identified as

defendant. Security had tracked defendant on camera from the floor of the

robbery to the site where Losasso observed him. At the time, defendant was

reaching into a trash can with both hands. When the officer reached him,

Losasso told defendant to put his hands behind his head and arrested him.


                                                                        A-3641-18T1
                                        5
Losasso's search of defendant did not reveal a weapon but did reveal a wallet

that belonged to M.S. Next, Losasso searched the trash can, and found a pair of

pants, pair of shoes, a shirt, and a belt. M.S. later identified the items as his.

      The police later obtained the surveillance video from the hotel. Cody

Clisham, the security supervisor at the hotel, observed some of the events of the

evening live through the hotel's security cameras. After the incident was over,

Clisham followed hotel procedure and compiled the feeds of various cameras

that had captured the incident into a single video. According to Clisham, he

included the full camera recording of the location of the incident for the time

period of the event and any recorded images that contained either of the two

victims or any person considered a suspect. Clisham testified that he spent a

considerable amount of time compiling the video and he did not omit any video

recording in which he saw the victims or any defendant.

      A grand jury returned an indictment against Cooper, Johnson, and

defendant for two counts of first-degree robbery, N.J.S.A. 2C:15-1; conspiracy

to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1; possession of a firearm for an

unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a handgun

N.J.S.A. 2C:39-5(b). The grand jury charged Cooper and Johnson with the




                                                                             A-3641-18T1
                                         6
additional crimes of aggravated sexual assault N.J.S.A. 2C:14-2, and sexual

assault N.J.S.A. 2C:14-2(c).

      At the trial, the victims, the arresting officer, the investigating officer, the

two witnesses, and the hotel security supervisor testified to the facts stated

above. Additionally, at trial, the court played the video compiled by Clisham

for the jury. This tape was again played during M.S.'s testimony, during which

time M.S. described the events as they were shown on screen.                The jury

convicted both Cooper and Johnson on all the counts. As for defendant, the jury

returned a verdict of guilty on all counts except the robbery count related to S.J.

      At defendant's sentencing, the court found multiple aggravating factors

and no mitigating factors. Accordingly, the court sentenced defendant to fifteen

years on the armed robbery count, subject to the No Early Release Act, N.J.S.A.

2C:43-7.2 (NERA). Defendant was also sentenced to a concurrent ten-year term

for possession of a weapon for an unlawful purpose with a three-year period of

parole ineligibility and a three-year concurrent term for unlawful possession of

a weapon with an eighteen-month period of parole ineligibility. In determining

whether consecutive sentences were appropriate, the court stated that the

weapons convictions were "based on accomplice evidence and there [was] no

evidence that he had foreknowledge of his co-defendant's possession[,]" and


                                                                              A-3641-18T1
                                          7
"there [was] a lack of evidence that he knew, prior to the commission of the

offenses for which he's an accomplice, that there would be a gun involved." The

sentencing court then stated that there was nonetheless "[c]ertainly enough

evidence in the case to sustain the conviction of those charges as an accomplice."

      On direct appeal, defendant limited his arguments to the following points:

            POINT I

            THE COURT'S FAILURE TO PROVIDE THE JURY
            WITH A CHARGE EXPLAINING HOW MR.
            PETERSON COULD BE FOUND GUILTY OF A
            LESSER-INCLUDED     OFFENSE      AS  AN
            ACCOMPLICE TO THE CO-DEFENDANTS IF HE
            DID NOT SHARE THEIR INTENT TO COMMIT
            THE SPECIFIC GREATER OFFENSE OF FIRST-
            DEGREE ROBBERY DEPRIVED MR. PETERSON
            OF DUE PROCESS AND A FAIR TRIAL.

            POINT II

            THE FIFTEEN–YEAR AGGREGATE SENTENCE IS
            MANIFESTLY EXCESSIVE, UNDULY PUNITIVE
            AND MUST BE REDUCED.

      We reversed defendant's armed robbery conviction and remanded for a

new trial as to that count because we concluded the trial court's jury instruction

was deficient in that the court failed to properly instruct the jury on accomplice

liability when lesser included offenses are charged. State v. Cooper, Nos. A-

2011-12, A-2988-12, A-3099-12 (App. Div. September 4, 2015) (slip op. at 11-


                                                                          A-3641-18T1
                                        8
12). We, however, affirmed as to the weapons offenses, because defendant did

not contend that the accomplice liability charge was deficient for any other

counts of the complaint. Cooper, slip op. at 9 n.3. We further noted in that

opinion:

            The State tried Peterson on the theory that he was
            Johnson's accomplice to the armed robbery and the jury
            so found. In contrast, Peterson's theory was that the
            video showed he was very uninvolved, participated
            very little in the beating, and stayed completely away
            from S.J. Importantly, there was no evidence that
            Johnson displayed his gun to Peterson before or during
            the robbery of M.S. or that Peterson had any knowledge
            that Johnson had a weapon. Indeed, in sentencing
            Peterson, the judge noted this lack of evidence that
            Peterson knew of any weapon before the robbery was
            underway. Hence, the evidence clearly indicated a
            basis to find Peterson not guilty of first-degree robbery
            and guilty of second-degree robbery.

            [Id. at 11 (emphasis added).]

      On remand, defendant, represented by new trial counsel, pled guilty on

April 12, 2017 to second-degree robbery. The court sentenced defendant on that

charge to an eight-year term subject to NERA and to concurrent terms of ten

years for the possession of a weapon for an unlawful purpose conviction and

three years for the unlawful possession of a weapon conviction, pursuant to the

recommended sentence in the negotiated plea agreement.



                                                                        A-3641-18T1
                                       9
      Defendant then filed an October 1, 2017 pro se PCR petition arguing that

his appellate counsel was ineffective because he failed to argue for reversal of

defendant's weapons conviction on direct appeal. Defendant maintained that he

"received a ful[l] reversal for [his] armed robbery charge but the weapon[s

charge] didn't get reversed[,]" he "received a change in sentence to a second[-

]degree robbery which is robbery without a weapon[,]" and he "was never in

possession of a weapon[, and] the victim stated there was no weapon involved."

He further stated at oral argument that reversing the weapons charges was "one

of the main arguments that [he] wanted [his appellate counsel] to bring up on

the appeal knowing that the first-degree armed robbery was being reversed."

While defendant did not raise any contentions regarding his second trial counsel

in his pro se PCR petition, defendant's PCR counsel noted at oral argument that

one of defendant's primary issues after the remand was that "his then-trial

counsel did not address the weapons charge."2

      The PCR court denied defendant's petition in a February 19, 2019 order.

In its accompanying written opinion, the PCR court noted that "[s]ince defendant

did not challenge his weapons convictions during his appeal or seek certification


2
   Defendant's PCR counsel indicated at the hearing that she submitted a
supplemental brief on defendant's behalf. That document was not included in
the record before us.
                                                                         A-3641-18T1
                                      10
from the Supreme Court regarding the Appellate Division's ruling, he is now

barred from raising this issue" in a PCR petition under Rule 3:22-4. The court

also noted defendant could not show that he was prejudiced by the alleged error

as the two weapons charges defendant was convicted of "do not contain lesser

included offenses . . . [and] the erroneous jury charge did not affect the outcome

on those charges" so his attorney's challenge to those charges would have been

unsuccessful.

      The PCR court also determined that under the theory of accomplice

liability, it was not necessary for the jury to find defendant guilty of any robbery

charges in order to find him guilty of the weapons offenses.             The court

emphasized that defendant "failed to describe any denial of his constitutional

rights regarding that issue or present evidence that his sentence is not in

accordance with the law."

      With respect to defendant's second trial counsel, the PCR court explained

that we affirmed his weapons convictions and limited the remand to defendant's

robbery charge so "[i]t would have been inappropriate for defendant's second

trial counsel to raise the issue of the weapons charges as that matter was

previously addressed on appeal and was not open for debate." The PCR court

concluded that the "proper course for addressing the weapons charges . . . would


                                                                            A-3641-18T1
                                        11
have been to seek certification from the Supreme Court on the issue[,]" and,

therefore, defendant failed to make a prima facie showing of ineffective

assistance of either his appellate or second trial counsels.

      This appeal followed.

                                        II.

      PCR serves the same function as a federal writ of habeas corpus. State v.

Preciose, 129 N.J. 451, 459 (1992). When petitioning for PCR, a defendant must

"establish, by a preponderance of the credible evidence, that he [or she] is

entitled to the requested relief." State v. Mitchell, 126 N.J. 565, 579 (1992)

(quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)). Where a

PCR court does not conduct an evidentiary hearing, we "conduct a de novo

review of both the factual findings and legal conclusions of the PCR court."

State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State v.

Harris, 181 N.J. 391, 421 (2004)).

      A PCR court deciding whether to grant an evidentiary hearing "should

view the facts in the light most favorable to a defendant to determine whether a

defendant has established a prima facie claim." Preciose, 129 N.J. at 462-63.

"To establish a prima facie claim of ineffective assistance of counsel, a

defendant must demonstrate the reasonable likelihood of succeeding under the


                                                                        A-3641-18T1
                                       12
test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984), and United

States v. Cronic, 466 U.S. 648 (1984), which [our Supreme Court] adopted in

State v. Fritz, 105 N.J. 42, 58 (1987)." Id. at 463. These principles apply as

well to a defendant's claim of ineffective assistance of appellate counsel. State

v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J.

444 (2008).

      Under the Strickland standard, a petitioner must show counsel's

performance was both deficient and prejudicial. State v. Martini, 160 N.J. 248,

264 (1999). Counsel's performance is deficient if it falls "below an objective

standard of reasonableness" measured by "prevailing professional norms."

Strickland, 466 U.S. at 687-88. In evaluating deficiency, counsel's performance

must be reviewed 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 689).

                                       III.

      First, we disagree with the PCR court's conclusion that defendant's

argument was procedurally barred under Rule 3:22-4. "Under New Jersey case

law, petitioners are rarely barred from raising ineffective-assistance-of-counsel

claims on post-conviction review." Preciose, 129 N.J. at 459. "Our courts have


                                                                             A-3641-18T1
                                       13
expressed a general policy against entertaining ineffective-assistance-of-counsel

claims on direct appeal because such claims involve allegations and evidence

that lie outside the trial record." Id. at 460.   Consequently, "[i]neffective-

assistance-of-counsel claims are particularly suited for post-conviction review

because they often cannot reasonably be raised in a prior proceeding." Ibid.

(citing R. 3:22-4).

      In addition, we have previously explained that ineffective assistance of

counsel claims are not barred by Rule 3:22-4:

            [I]neffective assistance of counsel claims, particularly
            ineffective assistance of appellate counsel, are
            congruous with the exceptions to the procedural bar of
            R. 3:22-4 because they (1) implicate issues that could
            not have been reasonably raised in prior proceedings;
            (2) involve infringement of constitutional rights; or (3)
            present exceptional circumstances involving a showing
            of fundamental injustice.

            [State v. Moore, 273 N.J. Super. 118, 125 (App. Div.
            1994).]

      In this instance, both of defendant's PCR contentions are framed in the

context of ineffective assistance of counsel and could not have been reasonably

raised in prior proceedings. As to his appellate counsel, "the record [was]

inadequate to disclose what reasons of tactics and strategy motivated counsel "

not to raise an argument for reversal of the weapons convictions. See State v.


                                                                         A-3641-18T1
                                      14
Dixon, 125 N.J. 223, 261 (1991).       Additionally, regarding his second trial

counsel, the events giving rise to that claim had not yet occurred. As such, the

PCR judge should not have found that either of defendant's claims were

procedurally barred by Rule 3:22-4.

                                       IV.

      Despite this procedural error, the PCR court addressed defendant's

contentions on their merits and first determined that defendant failed to make a

prima facie showing on his claim that his appellate counsel was ineffective for

failing to appeal his weapons convictions. 3 We disagree.

      To obtain a new trial based on ineffective assistance of appellate counsel,

a defendant must establish that appellate counsel failed to raise an issue that

would have constituted reversible error on direct appeal. See State v. Echols,

199 N.J. 344, 361 (2009). Appellate counsel will not be found ineffective if

counsel's failure to appeal the issue could not have prejudiced the defendant

because the appellate court would have found either, that no error had occurred

or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State


3
   We note that defendant's first trial counsel neither made a motion to dismiss
the weapons offenses nor did he object to the accomplice liability or constructive
possession jury instructions given at trial. Defendant has not asserted that his
first trial counsel's performance was deficient and limited his ineffective
assistance claims to his appellate and second trial counsels.
                                                                          A-3641-18T1
                                       15
v. Harris, 181 N.J. 391, 499 (2004). Consequently, appellate counsel is not

required to raise every possible issue and need only raise issues that have a

reasonable possibility of success. Gaither, 396 N.J. Super. 515-16; see also

State v. Morrison, 215 N.J. Super. 540, 549 (App. Div. 1987) (noting "appellate

counsel does not have a constitutional duty to raise every nonfrivolous issue

requested by the defendant").

      Under N.J.S.A. 2C:39-4(a)(1), "[a]ny person who has in his possession

any firearm with a purpose to use it unlawfully against the person or property of

another is guilty of a crime of the second degree." Additionally, under N.J.S.A.

2C:39-5(b), "[a]ny person who knowingly has in his possession any handgun

. . . without first having obtained a permit to carry the same . . . is guilty of a

crime of the second degree."

      N.J.S.A. 2C:2-6(c) provides in relevant part that an individual is an

accomplice of another if "[w]ith the purpose of promoting or facilitating the

commission of the offense[,] he . . . [s]olicits such other person to commit it,

[or] [a]ids or agrees or attempts to aid such other person in planning or

committing it." For accomplice liability to attach, the jury "must find that [the

defendant] 'shared in the intent which is the crime's basic element, and at least

indirectly participated in the commission of the criminal act.'"          State v.


                                                                           A-3641-18T1
                                       16
Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair,

45 N.J. 77, 95 (1965)); see also State v. Whitaker, 200 N.J. 444, 458 (2009) ("An

accomplice is only guilty of the same crime committed by the principal if he

shares the same criminal state of mind as the principal.").

      More specifically as to intent, in State v. Lopez, 187 N.J. 91, 93 (2006),

the Court held in a robbery context that N.J.S.A. 2C:15-1(a) does not include

"'afterthought' robbery – the situation in which a defendant does not formulate

the intent to steal until after force is used." Further, in Whitaker, 200 N.J. at

463, the Court held that the defendant could not be guilty of felony murder

unless he was guilty as an accomplice in the underlying robbery, and he could

not be guilty of being an accomplice in the robbery "based [solely] on his

conduct after [the alleged principal] had already robbed and fatally wounded the

victim."

      Additionally, it has long been held that possession need not be actual

physical possession. See State v. Humphreys, 54 N.J. 406, 413-414 (1969)

("Possession does not necessarily mean actual physical possession; it is enough

that defendant have intentional control and dominion over the object." (Internal

quotation marks omitted)); State v. Cook, 300 N.J. Super. 476, 490 (App. Div.

1996) ("Possession may be actual or constructive and two or more persons may


                                                                         A-3641-18T1
                                      17
jointly share actual or constructive possession of a weapon.").              More

specifically, "[a] person constructively possesses an object when, although he

lacks 'physical or manual control,' the circumstances permit a reasonable

inference that he has knowledge of its presence, and intends and has the capacity

to exercise physical control or dominion over it during a span of time." State v.

Spivey, 179 N.J. 229, 237 (2004) (quoting State v. Schmidt, 110 N.J. 258, 270

(1988)).

      Constructive possession arises out of an individual's conduct with regard

to the subject item and is "a function of the relationship and conduct of the

parties." Schmidt, 110 N.J. at 272. Immediate control and dominion over an

object are not required; it must be shown a defendant had the capacity, by direct

or indirect means, to gain almost immediate physical control, and the ability to

affect the item during the time in question. Id. at 270-71; see also State v.

Brown, 80 N.J. 587, 597 (1979) (finding constructive possession does not

require "[p]hysical or manual control of the proscribed item . . . as long as there

is an intention to exercise control over it manifested in circumstances where it

is reasonable to infer that the capacity to do so exists").

      "[C]onstructive possession[, however,] cannot be based on mere presence

at the place where contraband is located." State v. Whyte, 265 N.J. Super. 518,


                                                                           A-3641-18T1
                                        18
523 (App. Div. 1992), aff'd o.b., 133 N.J. 481, (1993). A court must consider

"the totality of the circumstances, including defendant's presence at the location

. . . as well as other factors before . . . an inference of constructive possession

[may] be drawn." State v. Hurdle, 311 N.J. Super 89, 96 (App. Div. 1998).

        We note that in State v. Williams, 315 N.J. Super 384, 396 (Law Div.

1998), the Law Division stated that in certain circumstances, "accomplice

liability has no useful role to play in the context of the weapons offenses. " It

also stated, however, that "the propriety of an accomplice liability instruction

for a simple possessory offense is fact-sensitive[,]" and should "not . . . be

eschewed in all cases" but "should not be routinely given in all cases either."

Ibid.    It concluded that under the unique circumstances of that case, the

accomplice liability charge was inappropriate "in addition to and apart from the

liability which might result from constructive possession on the part of the non -

weapon bearing [defendants]." Id. at 387-88. Thus, the Williams court did not

preclude the possibility that a defendant could be found guilty of a possessory

weapons offense under a theory of accomplice liability.

        We also note that in Cook, the court made the following observation with

respect to the relationship between accomplice liability and possessory weapons

offenses:


                                                                           A-3641-18T1
                                       19
            Whether accomplice liability even applies to a
            possessory weapons offense is doubtful. In such a case,
            the State must show that defendant possessed the
            weapon with a purpose to use it unlawfully. Possession
            may be actual or constructive and two or more persons
            may jointly share actual or constructive possession of a
            weapon. Once the jury is instructed as to these
            principles, which is what occurred here, the giving of
            an erroneous accomplice charge is, at most, harmless.

            [300 N.J. Super. at 489-90 (citations omitted).]

      The Cook court, however, did not directly answer the question of whether

accomplice liability applied in the context of possessory weapons offenses.

Instead, the court found that even an erroneous accomplice liability charge

would have been harmless under those circumstances in light of the trial court's

jury charge on constructive possession. Like in Cook, the jury here was charged

with constructive possession in relation to defendant's weapons offenses.

      Here, the sentencing judge stated that the weapons convictions were

"based on accomplice evidence" and that there was "[c]ertainly enough evidence

in the case to sustain the conviction of those charges as an accomplice[,]" but

also noted that there was "no evidence that [defendant] had foreknowledge of

his co-defendant's possession" and "a lack of evidence that he knew, prior to the

commission of the offenses for which he's an accomplice, that there would be a

gun involved." Similarly, on direct appeal we noted that there was "no evidence


                                                                         A-3641-18T1
                                      20
that Johnson displayed his gun to [defendant] before or during the robbery . . .

or that [defendant] had any knowledge that Johnson had a weapon." Cooper,

slip op. at 11.

      Based upon our review of the trial record along with our conscientious

consideration of the comments of the sentencing court and those contained in

our earlier opinion, we cannot discern the basis for appellate counsel's failure to

challenge the weapons offenses. In this regard, we cannot determine on the

current record if defendant's appellate counsel made a strategic decision not to

appeal those convictions. Specifically, we cannot discern if appellate counsel

concluded that such a challenge would have been unsuccessful due to trial

counsel's failure to object to the jury charge on accomplice liability and

constructive possession, or if counsel concluded that the circumstantial evidence

supported the weapons convictions on one or both of those theories such that

any challenge would be unsuccessful and would reasonably result in a potential

adverse impact on defendant's appellate arguments related to the first-degree

robbery conviction.    In light of the Williams and Cook decisions, and the

necessary elements to sustain a weapons offense under an accomplice liability

or constructive possession theory as outlined above, we believe further




                                                                           A-3641-18T1
                                       21
development of the record is required to understand appellate counsel's decision

not to appeal those convictions.

      Nor can we conclude on the present record that the result of the

"proceedings would not have been different even if the issue had been raised"

as the PCR court concluded.        On this point, the PCR court reasoned that

defendant failed to establish the prejudice prong because the weapons charges

"do not contain lesser included offenses" and any challenge to the weapons

convictions would have been unsuccessful as "the erroneous jury charge did not

affect the outcome on those charges." The issue, as we have detailed with

respect to the weapons offenses, was not the lack of a jury charge on non-

existent lesser included offenses, but rather if, under the facts presented at trial,

those offenses were legally sustainable and if a viable appellate issue existed.

We are thus persuaded that defendant presented sufficient evidence to warrant

an evidentiary hearing. Such a hearing will permit the development of a record

from which the PCR court can more meaningfully determine whether appellate

counsel's decision not to appeal the weapons offenses comports with reasonable

professional assistance or was ineffective assistance that prejudiced defendant

under the Strickland/Fritz test.




                                                                             A-3641-18T1
                                        22
                                        V.

      For similar reasons, we conclude an evidentiary hearing was required on

defendant's ineffective assistance claim regarding his second trial counsel to

permit a more fulsome record that reflects counsel's reasoning supporting the

decision not to file an applicable motion in the trial court prior to the negotiated

plea to address the weapons offenses, particularly in light of the comments in

our opinion addressing defendant's direct appeal and the trial evidence. We

cannot discern if this decision was the product of the plea negotiations or for

some other reason.

                                        VI.

      In sum, we conclude that defendant established a prima facie case of

ineffective assistance of his appellate counsel and second trial counsel that could

not be resolved on the record before the PCR judge. We, therefore, reverse the

judge's denial of defendant's petition and remand the matter for an evidentiary

hearing on both claims. We nonetheless note that our decision to remand for an

evidentiary hearing should not be understood as an expression of our opinion as

to the merits of defendant's claim.

      Reversed and remanded for an evidentiary hearing. We do not retain

jurisdiction.


                                                                            A-3641-18T1
                                        23
