                                NOT FOR PUBLICATION WITHOUT THE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-0282-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN BRINSON, a/k/a JOHN
BROWN, and CHRISTOPHER
EVANS,

     Defendant-Appellant.
_____________________________

                    Submitted October 15, 2019 – Decided January 31, 2020

                    Before Judges Rothstadt and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 12-03-0811.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Louis H. Miron, Designated Counsel, on the
                    brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Stephen Anton
                    Pogany, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, on the brief).
PER CURIAM

      Defendant John Brinson appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. For the reasons that

follow, we affirm.

      Defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-

3(a)(1)(2); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b); and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a). The charges arose from defendant's murder of a thirteen-

year-old victim on June 19, 2011. The sentencing court imposed an aggregate

sentence of fifty years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.

      Defendant appealed, arguing that the trial judge "improperly precluded

[him] from adducing evidence regarding third-party guilt," denied his request

for a Wade hearing, and erred by admitting into evidence the prior statements of

three witnesses. He also challenged his sentence as excessive and "unduly

punitive." We affirmed his convictions and sentence in an unpublished opinion.

State v. Brinson, No. A-3611-13 (App. Div. Jan. 11, 2017) (slip op. at 28). The

Supreme Court denied his petition for certification. State v. Brinson, 230 N.J.

418 (2017).




                                                                        A-0282-18T3
                                       2
      The facts underlying defendant's convictions are set forth in our opinion

and need not be repeated here. See Brinson, slip op. at 3-11.

      On June 6, 2017, defendant filed a PCR petition in which he asserted that

he received ineffective assistance of counsel (IAC) from his trial attorney. After

he was assigned PCR counsel, defendant filed a supporting certification that

stated he asked his trial counsel to interview "various members of [his] family"

about his presence at a family gathering the night of his victim's murder. He

also certified that during trial, his counsel never cross-examined a specific

witness about an affidavit in which the witness allegedly "repudiat[ed] his

statement to the police that he saw [defendant on] the night of the" murder.

Defendant also stated that he informed counsel that he was a victim of two drive-

by shootings in May 2011, which he believed were related to his victim's murder.

He asserted that counsel failed to investigate the shootings and "whether there

was [any] connection to [his] frame-up."

      Moreover, defendant added that counsel advised him not to "accept a

lesser-included offense," and advised him to decline a plea offer from the State,

without advising defendant of "the penal consequences of refusing the offer" or

"the relative strengths and weaknesses of" his or the State's case. Finally,




                                                                          A-0282-18T3
                                        3
defendant asserted that another person may have been involved in the murder

and his counsel failed to investigate a third-party guilt defense.

      The PCR judge, who was also the trial judge, denied defendant's petition

by order dated May 9, 2018, after he placed his reasons on the record that day.

Addressing defendant's claims of third-party guilt, the judge explained that there

was no evidence to support the claim. Regarding counsel's failure to cross-

examine a witness about the affidavit concerning the witness's recantation, the

judge observed that no such affidavit existed. Turning to counsel's decisions

not to seek a jury charge on lesser-included offenses and not to call and cross-

examine witnesses, the judge found that the decisions "were all of a strategic

nature," which the "[c]ourt [would] not second guess."

      Addressing defendant's claim about a plea agreement, the judge noted that

although the prosecutor and defense counsel had informal discussions even on

the day of trial about a possible plea offer, because defendant never indicated he

was interested in pleading guilty, no plea offer was ever made.          Instead,

defendant maintained his innocence throughout the litigation and "if [defendant

was] maintaining his innocence, [he could not], under oath, plead guilty, which

would . . . clearly [be] inconsistent with" the position he was taking. Under

those circumstances, defendant could not plead guilty without committing


                                                                          A-0282-18T3
                                        4
perjury. For that reason, the PCR judge did not find any merit to defendant's

claim that he would have accepted a plea offer had he been advised of one.

      Turning to defendant's contentions about the judge's jury charge on

witness identification, trial counsel's failure to object to the charge, and

appellate counsel's failure to raise the issue on appeal, 1 the judge found there

was nothing wrong with the charge and noted that it was "quite lengthy, . . . took

up [sixteen] pages . . . , and was rather thorough with regard to what it sa[id]."

He found that the charge was clear in advising the jury to consider eyewitness

testimony skeptically.

      The judge then discussed defendant's claim that he was entitled to an

evidentiary hearing. Citing to Strickland v. Washington, 466 U.S. 668 (1984),

he found that defendant failed to present a prima facie case of IAC by not

showing that counsel was deficient and was prejudiced by any alleged

deficiency. Defendant's arguments that counsel failed to investigate possible

alibis, inform the jury of certain facts, call and cross-examine certain witnesses,

and pursue a third-party defense, were either unsupported by the record, the

result of reasonable strategic decisions by counsel, or, assuming counsel acted


1
   PCR counsel argued this point at oral argument. It also may have been
included in a supporting brief, but we have not been provided with a copy of
that submission if it existed.
                                                                           A-0282-18T3
                                        5
in conformity with defendant's contentions, would not have changed the result

in this case. Moreover, the judge found, as to appellate counsel, defendant's

attorney did not fail to raise meritorious arguments on appeal, and arguments

that defendant was raising for the first time on PCR, should have been raised on

direct appeal. An order denying relief was entered on the same day. This appeal

followed.

      Defendant presents the following issues for our consideration in his

appeal.

                  POINT I

                  THE PCR COURT ERRED IN RULING
                  THAT BRINSON RECEIVED THE
                  EFFECTIVE     ASSISTANCE   OF
                  COMPETENT TRIAL COUNSEL IN
                  CONNECTION WITH THE STATE'S
                  PLEA OFFER TO BRINSON.

                  POINT II

                  APPELLATE      COUNSEL    WAS
                  CONSTITUTIONALLY INEFFECTIVE
                  BECAUSE COUNSEL FAILED TO
                  RAISE THE ISSUE CONCERNING THE
                  TRIAL    COURT'S  FAILURE   TO
                  CONDUCT        A      PRETRIAL
                  CONFERENCE TO ENSURE THAT
                  BRINSON WAS AWARE OF THE
                  STATE'S PLEA OFFER AND HAD THE
                  OPPORTUNITY      TO    REVIEW,
                  EVALUATE AND ACCEPT THE PLEA

                                                                        A-0282-18T3
                                       6
OFFER ON THE       RECORD   (NOT
RAISED BELOW).

POINT III

THE PCR COURT ERRED IN RULING
THAT BRINSON RECEIVED THE
EFFECTIVE    ASSISTANCE      OF
COMPETENT     TRIAL    COUNSEL
WHERE    COUNSEL    FAILED   TO
PERFORM      THE      REQUISITE
INVESTIGATION    TO     SUPPORT
BRINSON'S THIRD-PARTY GUILT
DEFENSE.

POINT IV

THE PCR COURT ABUSED ITS
DISCRETION      IN     DENYING
DEFENDANT'S PCR PETITION WITH
RESPECT TO DEFENDANT'S CLAIM
THAT     HE    RECEIVED     THE
INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL      AND     APPELLATE
COUNSEL IN CONNECTION WITH
THE TRIAL COURT'S INSTRUCTION
ON IDENTIFICATION WHICH WAS
FATALLY FLAWED BECAUSE IT
IMPROPERLY INFERRED THAT THE
FOUR              EYEWITNESSES'
IDENTIFICATIONS WERE BASED
UPON THEIR HAVING OBSERVED
DEFENDANT AT THE SCENE OF THE
CRIME AND DEFENDANT'S HAVING
ENGAGED IN AN ILLEGAL ACT.




                                   A-0282-18T3
               7
                   POINT V

                   THE PCR COURT ABUSED ITS
                   DISCRETION   BY  FAILING   TO
                   CONDUCT     AN    EVIDENTIARY
                   HEARING TO ADDRESS THE CLAIMS
                   RAISED BY DEFENDANT.

      We are not persuaded by any of these arguments and affirm.

      At the outset, we will not consider defendant's arguments in Point II,

which were not raised before the PCR judge, about appellate counsel's failure to

argue that his conviction should have been reversed because the court did not

conduct a pretrial conference under Rule 3:9-1(f). "For sound jurisprudential

reasons, with few exceptions, '[we] will decline to consider questions or issues

not properly presented to the trial court when an opportunity for such a

presentation is available.'" State v. Witt, 223 N.J. 409, 419 (2015) (quoting State

v. Robinson, 200 N.J. 1, 20 (2009)).

      Moreover, we conclude that defendant's contention about trial counsel's

alleged IAC involving a failure to communicate plea offers, which defendant

identifies as "the essence" of his PCR claim, is without merit. No plea offer was

made because defendant continued to assert his innocence up through the

commencement of trial. Even if a plea offer was made, according to defendant,

it was the trial court's duty, not counsel's, to conduct the pretrial hearing where


                                                                           A-0282-18T3
                                        8
defendant could be apprised of the final plea offer and the "procedural realities

and prospects for punishment" he was facing if he refused to accept a plea offer

had one been made. As defendant states in his brief, "[l]egally, it does not matter

whether [he] was advised of the plea offer and his substantial sentencing

exposure by his trial attorney" because that was the trial court's "non-delegable

duty."

         So too do we reject defendant's arguments about counsel's failure to

pursue defendant's claim of third-party guilt. As we found in our earlier opinion

affirming defendant's conviction, his claim had no merit. See Brinson, slip op

at 15-16. Since we previously considered defendant's contentions about third-

party guilt, his claim on PCR is procedurally barred, R. 3:22-5, and

substantively, it has not changed since we first addressed that argument, see

State v. Marshall, 173 N.J. 343, 351 (2002) (stating that an issue is precluded

from consideration on PCR when it "is identical or substantially equivalent to

that adjudicated previously on direct appeal" (quoting State v. Marshall, 148

N.J. 89, 150 (1997))); see also State v. McQuaid, 147 N.J. 464, 484 (1997).

         Turning to defendant's remaining arguments and applying our de novo

standard of review, State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018);




                                                                           A-0282-18T3
                                        9
see also State v. Harris, 181 N.J. 391, 421 (2004), we find them to be without

merit.

         The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland,

466 U.S. at 687, and adopted by our Supreme Court in State v. Fritz, l05 N.J.

42, 49-50 (l987). In order to prevail on a claim of IAC, defendant must meet

the two-prong test of establishing both: (l) that counsel's performance was

deficient and he or she made errors that were so egregious that counsel was not

functioning effectively as guaranteed by the Sixth Amendment of the United

States Constitution; and (2) that the defect in performance prejudiced

defendant's right to a fair trial such that there exists a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Strickland, 466 U.S. at 687, 694.

         We conclude from our review of the record that defendant failed to make

a prima facie showing of IAC as to trial counsel within the Strickland-Fritz test,

and as to appellate counsel under State v. Echols, 199 N.J. 344, 361 (2009)

(stating that petitioner must prove his appellate counsel failed to raise an issue

that would have constituted reversible error on appeal). We find defendant's

arguments, to the contrary, are without sufficient merit to warrant further


                                                                          A-0282-18T3
                                       10
discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say his contentions

about trial counsel's failure to object to the identification jury charge or appellate

counsel's failure to raise the issue on appeal are belied by the completeness of

the charge delivered by the judge and its mirroring of the Model Jury Charge.

See   Model     Jury   Charges     (Criminal),   "Identification:      Out-of-Court

Identification Only" (rev. July 19, 2012); Estate of Kotsovska v. Liebman, 221

N.J. 568, 596 (2015) (stating that a "presumption of propriety . . . attaches to a

trial court's reliance on the model jury charge" when it is used for "the specific

purpose for which [it] was adopted"). Accordingly, the PCR judge correctly

concluded that an evidentiary hearing was not warranted. See State v. Preciose,

129 N.J. 451, 462-63 (1992).

      Affirmed.




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                                         11
