                                NOT FOR PUBLICATION WITHOUT THE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-0617-18T2


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAHMELL W. CROCKAM,

     Defendant-Appellant.
_____________________________

                    Submitted March 3, 2020 – Decided April 14, 2020

                    Before Judges Yannotti and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 11-03-0471.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Howard W. Bailey, Designated Counsel, on
                    the brief).


                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Steven A. Yomtov, Deputy Attorney
                    General, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant appeals from an order entered by the Law Division on January

9, 2018, which denied his petition for post-conviction relief (PCR). For the

reasons that follow, we affirm in part, and remand in part for further

proceedings.

                                       I.

      In March 2011, an Ocean County grand jury charged defendant with first-

degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), with aggravating factors of

murder of a public servant, N.J.S.A. 2C:11-3(b)(4)(h), and murder to escape

detection, N.J.S.A. 2C:11-3(b)(4)(f); second-degree possession of a handgun for

an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b). Thereafter, defendant was tried

before a jury.

      At the trial, evidence was presented showing that in December 2010, the

Lakewood police unsuccessfully attempted to locate defendant at his girlfriend's

apartment. At the time, there were two outstanding warrants for his arrest. On

January 14, 2011, the police again attempted to locate defendant. A detective

contacted Tonya Cook, the owner of the home where defendant had been living.



                                                                        A-0617-18T2
                                       2
The detective asked Cook where he could find defendant. She said she did not

know.

        Cook then called defendant's girlfriend and asked if she knew where

defendant could be found because the police were looking for him. Defendant's

girlfriend said she did not know; however, defendant was with her at the time

listening to the call on a speaker phone. Defendant's girlfriend gave defendant

his .38 caliber revolver and told him to leave because she did not want any

trouble. Defendant left around 4:00 p.m.

        At about that time, Officer Christopher Matlosz of the Lakewood police

force was on patrol and encountered defendant. He had a brief conversation

with defendant. A man was standing nearby. He saw defendant start to walk

away and heard Matlosz tell defendant he had to come with him. According to

the witness, defendant said, "oh man."

        The witness stated that Matlosz briefly turned away and appeared to be

speaking on a cellphone or radio. Defendant walked back to the police car,

removed a .38 caliber handgun from his pocket, and shot Matlosz in the neck.

Defendant leaned towards the driver's side window and fired two more shots,

which struck Matlosz in the head at point-blank range. Defendant fled on foot.




                                                                       A-0617-18T2
                                         3
      Defendant called his friend Quamel Peteet and told him he "got in some

bullshit" and needed a ride. Peteet, Peteet's girlfriend, and Daniel Bergamotto

picked up defendant. He asked them to give him a ride to Camden. During the

trip, defendant said he shot a cop in the head and killed him. They dropped

defendant at the apartment of a friend, Angel Howard. Defendant told Howard's

boyfriend that he was wanted for killing a police officer.

      Sometime later, defendant's friend Corey Rua came to Howard's

apartment. Defendant told Rua he killed a cop and the police were looking for

him. Thereafter, defendant told another friend that he shot a police officer,

claiming that the officer had been reaching for his gun. Defendant gave the gun

to this individual. Defendant drove with him to a pier and they threw the gun

into the Delaware River.

      The investigation led the police to defendant. On January 16, 2011, the

police arrested defendant at Howard's apartment in Camden. While in jail,

defendant told three inmates that he had killed Matlosz and he provided specific

details about the shooting. Defendant reportedly stated that one of the shots was

"up close and personal." One of the inmates said defendant told him that in the

months before the shooting, defendant knew there were warrants for his arrest

and he was thinking of killing a police officer.


                                                                         A-0617-18T2
                                        4
      Defendant gave a recorded statement to the police. He admitted that he

was in the area where the shooting occurred and that he saw the officer who was

shot. He stated, however, that he went to Camden on the afternoon of January

14, 2011, and only learned about the shooting while watching reports on the

television.

      The jury found defendant guilty of first-degree murder, with the two

aggravating factors charged in the indictment. The jury also found defendant

guilty of second-degree possession of a handgun for an unlawful purpose and

second-degree unlawful possession of a weapon. The trial judge later sentenced

defendant to life imprisonment without parole.

      Defendant appealed from the JOC dated March 22, 2012. In that appeal,

defendant raised the following arguments:

              POINT I
              A    GROSSLY   SUGGESTIVE     CELL-PHONE
              PICTURE OF DEFENDANT WHICH WAS SENT TO
              AN EQUIVOCATING KEY EYEWITNESS FROM
              HIS SON-IN-LAW'S "S.W.A.T. BUDDY," SHOULD
              NOT HAVE BEEN ADMITTED INTO EVIDENCE
              SINCE IT WAS UNRELIABLE HEARSAY AND
              DIRECTLY RESULTED IN AN IDENTIFICATION
              OF DEFEDNANT AS THE SHOOTER.

              POINT II
              THE ADMISSION OF DEFENDANT'S PURPORTED
              STATEMENT THAT HE WAS GOING TO KILL A
              COP BEFORE GOING TO JAIL, AS WELL AS

                                                                       A-0617-18T2
                                      5
            ADMISSION    OF    UNRELATED     ARREST
            WARRANTS WAS INADMISSIBLE PRIOR BAD-
            ACTS EVIDENCE AND, IN ANY CASE, WAS FAR
            MORE    PREJUDICIAL   THAN   PROBATIVE,
            ESPECIALLY SINCE MOTIVE WAS NOT AN
            ISSUE.

      We affirmed defendant's conviction. State v. Crockam, No. A-4400-12

(App. Div. February 3, 2018). The Supreme Court denied defendant's petition

for certification. State v. Crockam, 228 N.J. 245 (2016).

      Thereafter, defendant filed a petition for PCR alleging ineffective

assistance of counsel. The trial court assigned counsel for defendant and counsel

filed a letter brief in support of defendant's petition. In that brief, PCR counsel

argued that the petition was timely. Counsel also argued that defendant was

denied the effective assistance of counsel because his trial attorney failed to call

defendant's grandmother as a witness at trial and obtain her cellphone records.

      PCR counsel noted that at trial, the State had argued defendant knew there

was an outstanding warrant for his arrest, and defendant shot the officer to avoid

capture. PCR counsel noted, however, that defendant claimed that a month

before the shooting, he used his grandmother's cellphone and contacted the

Ocean County Sheriff's Department (OCSD) to inquire whether he had any

outstanding warrants.



                                                                            A-0617-18T2
                                         6
      PCR counsel noted that defendant had alleged that the OCSD informed

him there was no such warrant and that up until the time of the shooting,

defendant had no information to the contrary.       According to PCR counsel,

defendant further alleged that his grandmother's cellphone records would have

substantiated this claim.

      In addition, PCR counsel argued that the State had called five witnesses

who testified that they heard defendant admit to shooting the officer: Pateet,

Bergamatto, Rua, Howard, and Cook. Defendant claimed the detectives learned

the identities of these witnesses by making an illegal search of his grandmother's

cellphone.

      PCR counsel argued that if called to testify, defendant's grandmother

would have testified that the police took her phone without a warrant or her

consent and thereafter unlawfully searched its contents. Counsel asserted that

the phone contained identifying information about the five witnesses called to

testify against him. He argued that trial counsel should have filed a motion to

suppress the testimony of these witnesses.

      The judge heard oral argument and thereafter filed a written opinion. The

judge found defendant's petition was timely. The judge also found defendant

had not presented a prima facie case of ineffective assistance of counsel, under


                                                                          A-0617-18T2
                                        7
the two-prong test established in Strickland v. Washington, 455 U.S. 668, 687-

98 (1984), which our Supreme Court had adopted in State v. Fritz, 105 N.J. 42,

58 (1987), for consideration of ineffective-assistance-of-counsel claims under

the New Jersey Constitution.

      The judge found that defendant failed to show that his trial counsel erred

by failing to obtain his grandmother's cellphone records. The judge noted that

these records would only have proven that a call was made. The records would

not show that the OCSD had informed defendant there was no outstanding

warrants for his arrest, as defendant claimed.

      The judge observed that on the day of the shooting, the Lakewood police

called Cook and asked where they could find defendant. Cook called defendant's

girlfriend and told her the police were looking for defendant.       She asked

defendant's girlfriend if she knew where defendant could be found. Defendant's

girlfriend said she did not know; however, defendant was with her at the time.

He heard the call on the speaker phone.

      The judge pointed out that this evidence showed that "regardless of

whether he knew there was a warrant out for his arrest[,]" defendant knew the

police were looking for him. The judge found this evidence refuted defendant's

claim that he had no motive to shoot the officer.


                                                                        A-0617-18T2
                                        8
      The judge also stated that defendant had not presented any evidence to

support defendant's claim that his trial attorney erred by failing to suppress the

testimony of the five witnesses who testified that they heard defendant admit to

shooting the officer. The judge noted that defendant had not presented an

affidavit or certification supporting his claim that the State learned the identities

of these witnesses during an illegal search of his grandmother's cellphone.

      The judge had given defendant additional time to supplement the record.

According to the judge, defendant provided an unsworn statement from his

grandmother, indicating that she gave the police her cellphone. The judge

pointed out that defendant's grandmother did not mention anything about

obtaining witness-contact information from her phone.

      The judge found that defendant had not presented any evidence to show

the police obtained the identifying information unlawfully. The judge stated

that defendant had "offered nothing to refute the many valid ways in which a

full-scale law enforcement investigation of a major crime could identify

witnesses."

      The judge concluded that defendant did not present a prima facie case of

ineffective assistance of counsel.       Therefore, he was not entitled to an

evidentiary hearing. The judge wrote:


                                                                             A-0617-18T2
                                         9
           [Defendant's] claim that police officers illegally
           searched his grandmother's phone is not supported by
           any evidence. [Defendant's] argument that he lacked
           the motive to kill a law enforcement officer because he
           did not know there was a warrant out for his arrest is
           not persuasive. [Defendant] knew the police were
           looking for him when he listened to the phone call made
           to [his girlfriend] on speaker. Second, there were
           multiple witnesses at trial who testified that [defendant]
           admitted killing Officer Matlosz or testified that
           [defendant] would only go back to prison for killing a
           law enforcement officer. Third, the State presented
           overwhelming evidence of [defendant's] guilt at the
           trial that this [c]ourt feels would not have been able to
           be overcome by any of the aforementioned "bald
           assertions" made by [defendant].

     The judge entered an order dated January 9, 2018, denying PCR. This

appeal followed.

     On appeal, defendant raises the following arguments:

           POINT I:
           THE POST-CONVICTION RELIEF COURT ERRED
           IN DENYING THE DEFENDANT'S PETITION FOR
           POST-CONVICTION     RELIEF     WITHOUT
           AFFORDING HIM AN EVIDENTIARY HEARING
           TO FULLY ADDRESS HIS CONTENTION THAT
           HIS TRIAL ATTORNEY WAS INEFFECTIVE IN
           FAILING TO CHALLENGE THE ILLEGAL
           SEARCH AND SEIZURE OF THE CELL PHONE.

           A. THE PREVAILING LEGAL PRINCIPLES
           REGARDING    CLAIMS OF  INEFFECTIVE
           ASSISTANCE OF COUNSEL, EVIDENTIARY
           HEARINGS, AND PETITIONS FOR POST-
           CONVICTION RELIEF.

                                                                        A-0617-18T2
                                      10
               B. DEFENDANT RECEIVED INEFFECTIVE
               ASSISTANCE OF COUNSEL WHEN HIS TRIAL
               ATTORNEY FAILED TO CHALLENGE THE
               ILLEGAL SEARCH AND SEIZURE OF HIS CELL
               PHONE.

               POINT II:
               DEFENDANT WAS DENIED THE EFFECTIVE
               ASSISTANCE OF POST-CONVICTION RELIEF
               COUNSEL. (Not Raised Below).

                                        II.

         As noted, defendant argues that he established a prima facie case of

ineffective assistance of counsel and the PCR court erred by denying his request

for an evidentiary hearing on his petition. We disagree.

         Initially, we note that an evidentiary hearing on a PCR petition is only

required when a defendant presents a prima facie case in support of relief, the

court determines there are material issues of fact that cannot be resolved based

on the existing record, and the court finds an evidentiary hearing is required to

resolve the issues presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R.

3:22-10(b)). "To establish a prima facie case, defendant must demonstrate a

reasonable likelihood that his or her claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

10(b).



                                                                           A-0617-18T2
                                        11
      A defendant asserting a claim of ineffective assistance of counsel must

satisfy the two-part test established in Strickland, 466 U.S. at 687-98, and

adopted in Fritz, 105 N.J. at 58. Under that test, a defendant first "must show

that counsel's performance was deficient." Strickland, 466 U.S. at 693. The

defendant must establish that the attorney's performance "fell below an objective

standard of reasonableness" and "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Ibid.

      The defendant also must show "that the deficient performance prejudiced

the defense." Ibid. To establish prejudice, the defendant must establish "there

is a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id. at 698. "A reasonable

probability is a probability sufficient to undermine confidence in the outcome"

of the matter. Ibid.

      Here, defendant claims he was denied the effective assistance of counsel

because his attorney failed to move to suppress evidence obtained in a search of

a cellphone taken from the family residence. He now alleges the phone was his.

He claims that when the detectives searched the phone, they learned the

identities of the five witnesses who testified at trial that he admitted killing


                                                                             A-0617-18T2
                                        12
Matlosz. He alleges the evidence was obtained illegally without a warrant and

consent of his grandmother, who allegedly was the owner of the account.

      In support of this claim, defendant submitted a certification dated October

27, 2017, in which he stated that he told his trial attorney the information "the

police said came from a cell phone I was using was taken without permission."

He said no one who was present when the officers came to the residence gave

them permission "to go through" the cellphone.

      Defendant stated that his mother told the officers to give the phone back.

He claimed that he told his attorney to call his grandmother, mother, and

stepfather to establish that the police were lying and that they took the phone

without permission. Defendant also stated that he told his attorney to call his

mother to testify she was present when he called the OCSD to ask if he had

warrants. He claimed his attorney never contacted these witnesses.

      We are convinced, however, that the record supports the PCR court's

determination that defendant failed to present sufficient evidence to support the

claim that his attorney was deficient because he did not obtain the cellphone

records or call his grandmother, mother, and stepfather as witnesses.

      As the judge found, the cellphone records would only have established

that defendant called the OCSD, if such a call was made, as defendant claimed.


                                                                         A-0617-18T2
                                      13
The cellphone records would not substantiate defendant's claim that the OCSD

informed him that he had no outstanding warrants. Furthermore, the cellphone

records would not have refuted other evidence that defendant was aware the

police were looking for him on the day of the shooting.

         Moreover, the record shows that defendant did not present sufficient

evidence to support his claim that the police illegally seized and searched the

cellphone. In his certification, defendant claimed the police came to the family

residence and no one present at the time gave the police permission to take the

phone. However, defendant was not present at the time, and he does not have

personal knowledge of what occurred.

         Defendant also stated that his grandmother told him she did not give the

police permission to take the phone, but what defendant's grandmother told

defendant is inadmissible hearsay.           In addition, defendant claimed his

grandmother would have testified at trial that she was present when he called

the OCSD to inquire as to whether he had warrants. However, he has not

provided an affidavit or certification from his grandmother setting forth these

facts.

         Defendant also claims his attorney was deficient because counsel did not

call his mother and stepfather as witnesses. According to defendant, they would


                                                                         A-0617-18T2
                                        14
have testified that the police were lying and that they took his cellphone without

permission. Defendant's mother and stepfather did not, however, submit an

affidavit or certification to substantiate this claim.

      We therefore conclude that the PCR court correctly determined that

defendant failed to present a prima facie case of ineffective assistance of counsel

under the Strickland test. The court correctly rejected defendant's claims with

regard to the alleged illegal search of the cellphone or the cellphone records .

The court did not err by denying defendant's request for an evidentiary hearing

on these claims.

                                         III.

      Defendant also argues that he was denied the effective assistance of PCR

counsel. He argues that PCR counsel did not list or incorporate all of his claims

in the brief that counsel filed with the PCR court. Defendant contends the matter

should be remanded to the Law Division for another PCR hearing with newly-

assigned counsel.

      An indigent defendant is entitled to the assignment of counsel for his first

PCR petition. R. 3:22-6(a). Our court rules further provide in relevant part that

PCR counsel "should advance all of the legitimate arguments requested by the

defendant that the record will support." R. 3:22-6(d).


                                                                           A-0617-18T2
                                        15
      Our Supreme Court has explained that when representing a defendant on

a petition for PCR,

            counsel must communicate with the client, investigate
            the claims urged by the client, and determine whether
            there are additional claims that should be brought
            forward. Thereafter, counsel should advance all of the
            legitimate arguments that the record will support. If
            after investigation counsel can formulate no fair legal
            argument in support of a particular claim raised by
            defendant, no argument need be made on that point.
            Stated differently, the brief must advance the
            arguments that can be made in support of the petition
            and include defendant's remaining claims, either by
            listing them or incorporating them by reference so that
            the judge may consider them. That procedure, which
            will serve to preserve defendant's contentions for
            federal exhaustion purposes, is all that is required.

            [State v. Webster, 187 N.J. 254, 257 (2006) (emphasis
            added).]

"The remedy for counsel's failure to meet the requirements imposed . . . is a new

PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010)

(citing State v. Rue, 175 N.J. 1, 4 (2002)).

      In his petition, defendant asserted that he was denied the effective

assistance of trial counsel because counsel did not: (1) challenge the warrant;

(2) seek a cross-racial identification charge; (3) investigate to determine if

certain witnesses received favorable "deals" for their testimony; (4) file a motion

to dismiss the indictment; (5) produce his grandmother, father, and mother for

                                                                           A-0617-18T2
                                       16
the Wade1 hearing, (6) file a motion to suppress all witnesses who identified him

and made statements against him; (7) send an investigator to look into the photo

that was sent out prior to his arrest; and (8) object when a Muslim witness was

sworn by placing his hand on a Bible.

        As stated previously, in the supplemental brief, defendant's PCR counsel

only addressed the claims that defense counsel was deficient because counsel:

(1) did not call defendant's grandmother and failed to obtain her cellphone

records, and (2) failed to call defendant's grandmother to show that five

witnesses who testified against him were identified as a result of an illegal

search of her cellphone. PCR counsel did not, however, list or incorporate

defendant's other contentions in his brief. The PCR court did not address these

claims.

        We conclude that PCR counsel did not meet the requirements of Rule

3:22-6(d) in his representation of defendant. Therefore, we reverse the PCR

court's denial of relief on the claims that PCR counsel did not list or incorporate

in his brief and which were not addressed by the PCR court. We express no

view as to whether any of these claims have merit.




1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                           A-0617-18T2
                                        17
      On remand, the PCR court shall assign new PCR counsel for defendant.

The court shall afford counsel the opportunity to submit supplemental

certifications and another brief and permit the State to respond. The court shall

conduct oral argument on the petition and determine if defendant has presented

a prima facie case of ineffective assistance of counsel. If so, the court shall

conduct an evidentiary hearing on defendant's additional claims.

      Affirmed in part, reversed in part, and remanded to the Law Division for

further proceedings in accordance with this opinion.         We do not retain

jurisdiction.




                                                                         A-0617-18T2
                                      18
