                        NOT FOR PUBLICATION WITHOUT THE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-0626-16T3



STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HUGUES FRANCOIS, a/k/a
JACKIE FRANCOIS, JACQUES
FRANCOIS, and JACK FRANCOIS,

     Defendant-Appellant.
_______________________________________________

              Submitted May 8, 2018 – Decided June 6, 2018

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              08-10-1788.

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

              Dennis Calo, Acting Bergen County Prosecutor,
              attorney for respondent (Jenny X. Zhang,
              Special   Deputy    Attorney   General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant appeals from an order dated June 10, 2016, which

denied his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

                                       I.

     Defendant was charged under Bergen County Indictment No. 08-

10-1788 with first-degree murder of Thalia Stathis (Stathis),

N.J.S.A.     2C:11-3(a)(1)    or      (2)   (count     one);    second-degree

disturbing    or   removing   human    remains,      N.J.S.A.   2C:22-1(a)(1)

(count two); third-degree forgery, N.J.S.A. 2C:21-1(a)(2) and (3)

(counts    three   and   four);    fourth-degree      theft     by   deception,

N.J.S.A.     2C:20-4     (count       five);      third-degree        hindering

apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); fourth-degree

violation of sex offender registration requirements, N.J.S.A.

2C:7-2(d) (count seven); and third-degree failure to register as

a sex offender, N.J.S.A. 2C:7-2(a)(3) (count eight). Counts seven

and eight were severed for trial. Counts one through six were

tried before a jury.

     At the trial, evidence was presented which indicated that

Stathis met defendant in 2005, at her parents' diner where she

worked as a waitress. They developed a relationship, and she worked

six days a week while defendant did not have a steady job or

income. Soon thereafter, Stathis moved out of her parents' house



                                       2                                A-0626-16T3
and moved into an apartment. Her relationship with her parents

also became strained.

     On September 7, 2007, Stathis told her mother she was going

to end her relationship with defendant and that she wanted to come

back home. On September 10, 2007, Stathis met her mother at a

local restaurant and told her she had broken up with defendant and

did not want to see him again. Stathis then returned to work.

     Stathis was last seen at work on September 13, 2007. That

evening, she told two co-workers she was going to leave defendant.

She also told one of her co-workers she intended to return to her

apartment   to   pick   up   some   clothes.   Thereafter,   Stathis   went

missing. When Stathis' co-workers realized she was absent from

several shifts in a row, and no one could get in touch with her,

they contacted the police.

     On September 26, 2007, Cliffside Park police officers went

to Stathis' apartment to check on her. There, they spoke with

defendant, who informed the police the apartment belonged to

Stathis and he was living there. Defendant was arrested on charges

unrelated to Stathis' disappearance. Defendant was transported to

the Cliffside Park police station, where he signed a consent-to-

search form for his automobile.

     Officer Marc Moschella conducted a search of defendant's

vehicle. He testified the car was missing carpet padding on the

                                      3                            A-0626-16T3
left side of the trunk and a plate that covers the spare tire.

During     the    search,   the   police   recovered   two   of   Stathis'

prescriptions from an oral surgeon, her AT&T phone bill, and her

ATM card.

       Detective James Brazofsky of the homicide unit of the Bergen

County Prosecutor's Office (BCPO) examined defendant's vehicle on

September 26, 2007. He noticed that the interior, passenger-side

floor mat was missing. A small red stain, possibly blood, was

located in the passenger-side rear section of the vehicle. The

officers also found clothing and a bottle of window cleaner in the

car.

       Brazofsky testified that the car's trunk liner was missing,

and he noticed two separate reddish brown stains in the trunk,

which he suspected were blood. He noticed additional stains on the

CD player in the trunk of the car, which he also suspected to be

blood.

       Detective Mark Bendul of the BCPO interviewed defendant and

searched    the    apartment   defendant   shared   with   Stathis.     Three

suspected blood stains were identified in the bathroom. After the

stains were photographed, they were swabbed with distilled water

so that samples could be collected. Bendul testified that tests

indicated that the blood samples taken from the car matched

Stathis' blood.

                                      4                               A-0626-16T3
      On July 9, 2008, Trooper Kevin Reppenhagen of the New York

State Police received a call to investigate a suspicious bag on

the Southern State Parkway. Reppenhagen located a plaid bag on the

side of the highway. He believed the contents of the bag were

decaying and could contain body parts. The area was secured as a

crime scene. The bag contained an entire human skeleton, situated

in the fetal position and covered with maggots.

      The Nassau County Medical Examiner's Office performed an

autopsy of the body. The cause of death was determined to be blunt

force trauma and breaking of the hyoid bone, a sign indicating

strangulation. A forensic anthropologist indicated the body was

female, white, between thirty to fifty years old, and approximately

Stathis' height.

      A forensic odontologist examined the teeth of the corpse, and

Stathis' dentist confirmed the body was Stathis' corpse. The

investigation    revealed     defendant   previously    lived     in    Nassau

County, New York, directly adjacent to the Southern State Parkway.

DNA samples taken from the remains were matched to DNA samples

provided   by    Stathis'    parents,     and   the   forensics     analysis

determined the DNA taken from the car and apartment bathroom was

that of a female and also matched the DNA of Stathis' parents.

      On count one, the jury found defendant not guilty of murder,

but   guilty    of   the    lesser   included    offense   of     aggravated

                                     5                                 A-0626-16T3
manslaughter. The jury found defendant guilty on counts two through

six. The court sentenced defendant on count one, (aggravated

manslaughter),   to   a   thirty-year     custodial    term,   and    required

defendant to serve eighty-five percent of that sentence before

becoming eligible for parole, pursuant to the No Early Release

Act, N.J.S.A. 2C:43-7.2.

     In addition, on count two (disturbing human remains), the

court imposed a concurrent ten-year term, with five years of parole

ineligibility.   On   count   three   (forgery),      the   court    sentenced

defendant to a consecutive five-year term, with two-and-one-half

years of parole ineligibility. Moreover, on count six (hindering),

the court imposed a consecutive five-year term, with two-and-one-

half years of parole ineligibility.

     Defendant appealed from the judgment of conviction dated

October 28, 2010. We affirmed defendant's convictions and the

sentences imposed. State v. Francois, No. A-0757-10 (App. Div.

Oct. 4, 2012). Defendant then filed a petition for certification

with the Supreme Court. The Court denied the petition, State v.

Francois, 216 N.J. 366 (2013).

     On August 6, 2015, defendant filed a PCR petition in which

he claimed he was denied the effective assistance of trial counsel.

He claimed his attorney was deficient because counsel failed to:

(1) file a motion to allow defendant to represent himself at trial;

                                      6                                A-0626-16T3
(2) argue that the State failed to prove its case beyond a

reasonable doubt; (3) object to inadmissible expert testimony; (4)

object to the admission of certain "other crimes" evidence; (5)

move for a severance of the charges against him; and (6) object

to the testimony regarding a spare tire. In addition, defendant

argued   that   the   prosecutor's    comments   during   summation   were

improper and so prejudicial that they denied him a fair trial.

     The PCR judge assigned counsel to represent defendant and

counsel submitted a brief on defendant's behalf. On May 31, 2016,

the PCR judge heard oral argument, and on June 10, 2016, the judge

filed a written opinion, finding that defendant had not presented

a prima facie case of ineffective assistance of counsel and an

evidentiary hearing was not required on the petition. The judge

entered an order dated June 10, 2016, denying PCR. This appeal

followed.

                                     II.

     On appeal, defendant argues he was denied the effective

assistance of counsel because: (1) his trial attorney did not file

and argue a motion for waiver of his right to counsel so that he

could represent himself at trial; (2) trial counsel failed to

argue in summation that the State had failed to prove he committed

the charged offenses beyond a reasonable doubt, and appellate

counsel erred by failing to raise that issue on appeal; (3) trial

                                      7                           A-0626-16T3
counsel failed to object to Detective Bendul's testimony regarding

the blood sample taken from his vehicle because Bendul was not

qualified as an expert; and (4) trial counsel failed to object to

certain remarks by the prosecutor in summation. In addition,

defendant argues that the PCR court erred by denying his request

for an evidentiary hearing.

     A defendant is entitled to an evidentiary hearing on a PCR

petition if the defendant presents a prima facie case in support

of PCR, the court determines there are material issues of fact

that cannot be resolved based on the existing record, and the

court finds that an evidentiary hearing is required to resolve the

claims presented. R. 3:22-10(b); see also State v. Porter, 216

N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

     The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee

criminal defendants the right to the effective assistance of

counsel.   State   v.   O'Neil,   219   N.J.   598,   610   (2014)   (citing

Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Fritz,

105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective

assistance of counsel, the defendant must meet the two-part test

established by Strickland, 466 U.S. at 686, and adopted by our

Supreme Court in Fritz, 105 N.J. at 58.



                                    8                                A-0626-16T3
         Under Strickland, a defendant first must show that his or her

attorney made errors "so serious that counsel was not functioning

as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland, 466 U.S. at 687. Counsel's performance is deficient

if it "[falls] below an objective standard of reasonableness." Id.

at 688.

         A    defendant     also   must   show    that   counsel's   "deficient

performance prejudiced the defense." Id. at 687. The defendant

must establish that "there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. A "reasonable probability"

is   a       "probability   sufficient    to     undermine   confidence   in   the

outcome" of the proceeding. Ibid.

         A. Motion for Self-Representation

         Defendant argues his trial attorney was deficient because he

did not file a motion to waive his right to counsel,                        after

defendant said he no longer wanted the attorney to represent him

at trial. Defendant contends the attorney should have urged the

court to conduct a hearing so that the court could inform him of

his right to self-representation, as explained in State v. DuBois,

189 N.J. 454 (2007).

         On direct appeal, defendant argued that his right under the

Sixth Amendment to the United States Constitution was violated

                                          9                               A-0626-16T3
because     the     trial   judge   denied     his    request      for     self-

representation. We rejected that claim, noting that defendant had

not sought permission to represent himself until the close of

testimony on the second day of trial. Francois, No. A-0757-10,

slip op. at 18–19. We held that under the circumstances, the judge

did not abuse his discretion in denying defendant's application.

Id. at 23.

     Here,    the    PCR    court   found    that    defendant's    claim       of

ineffective assistance of counsel was barred by Rule 3:22-5 because

the issue had been raised on direct appeal and we had determined

that the judge did not abuse his discretion by denying defendant's

request to proceed pro se. Even if defendant's claim was not barred

by Rule 3:22-5, defendant failed to show that counsel was deficient

in failing to file a motion to allow defendant to represent himself

at trial.

     As   noted,     defendant's    apparent   dissatisfaction      with      his

attorney first arose while the trial was underway. Indeed, on

direct appeal, defendant argued that his dissatisfaction with his

attorney was "unknown and unknowable" prior to trial. Francois,

No. A-0757-10, slip op. at 23. When the trial judge told defendant

he could not speak in front of the jury and he had to communicate

through his attorney, he stated, "If that's the case, why don't

you let me represent myself then?" Id. at 19.

                                     10                                  A-0626-16T3
     Defendant made six further requests to represent himself, and

the judge repeatedly instructed defendant on the rules of courtroom

behavior. Ibid. He told defendant that his attorney was "extremely

capable," but defendant disagreed and again requested permission

to represent himself. Ibid. The trial judge found the application

was untimely. Ibid.

     Thus, the record shows that at trial defendant made a motion

for self-representation, and he has not shown that the application

would have been granted if it had been made by his attorney. In

addition, defendant has not shown that he was prejudiced by

counsel's failure to make the motion. The result would have been

the same. The motion was untimely, and as we held in defendant's

direct appeal, the trial judge did not abuse his discretion by

denying it.

     B. Trial Counsel's Summation

     Next, defendant argues his trial attorney should have argued

in summation that the State failed to prove beyond a reasonable

doubt that he committed the charged offenses. The PCR court

correctly found that this claim was barred by Rule 3:22-4 because

it could have been, but was not, raised on direct appeal. However,

the PCR court also addressed the claim on the merits and found

that defendant had not met either prong of the Strickland test for

ineffective assistance of counsel.

                               11                           A-0626-16T3
      The PCR court noted that in summation, defendant's attorney

had criticized the State's case. Moreover, the trial judge had

instructed the jury that the State had the burden of proving all

elements of the charged offenses beyond a reasonable doubt. The

PCR court found that defendant had not shown his attorney was

deficient in his summation, or that he had been prejudiced by

counsel's      summation.     The    record     supports    the     PCR     court's

determination that defendant had not raised a prima facie claim

of   ineffective    assistance       of   counsel   with   regard    to    defense

counsel's summation. For the same reasons, we reject defendant's

claim that his appellate counsel was deficient for failing to

raise   the    issue   on   direct    appeal.     Appellate   counsel       had    no

obligation to raise this meritless claim, and the result of the

appeal would not have been different if the issue had been raised.

      C. Detective Bendul's Testimony

      Defendant further argues his trial attorney was deficient

because   he    failed   to   object      to   Detective   Bendul's       testimony

regarding the samples taken from stains in his vehicle, which

tested positive for blood and were determined to be Stathis' blood.

Defendant contends Bendul's testimony was expert testimony and his

attorney should have objected because Bendul had not been qualified

as an expert.



                                          12                                A-0626-16T3
       The PCR court correctly found this claim was procedurally

barred by Rule 3:22-4 because it could have been, but was not,

raised on direct appeal. The court nevertheless addressed the

merits of this claim, finding that counsel was not deficient in

failing    to   object   to   Bendul's   testimony   because   he   was   not

testifying as an expert.

       The detective merely provided the jury with a summary of the

results of the tests performed on the stains. The court noted that

at trial, the State had also presented testimony from a forensic

scientist at the New Jersey State Police lab, who confirmed that

Stathis was the source of the bloodstains found in defendant's

car.

       Thus, the PCR court correctly determined that defense counsel

was not deficient in failing to object to Bendul's testimony

regarding the results of the tests on the blood stains. Even if

counsel erred by failing to object, defendant failed to show he

was prejudiced by the error. Defendant failed to show the trial

court would have barred Bendul from testifying about the facts if

counsel had objected. Moreover, the State's forensic scientist

testified that Stathis was the source of the bloodstains found in

the car.




                                    13                               A-0626-16T3
     D. The Prosecutor's Summation

     Defendant    also   argues   his   trial   attorney   was   deficient

because he failed to object to the assistant prosecutor's statement

in summation that the murder did not take place in the victim's

bathroom   or   apartment.   Defendant    notes   that   in   the   opening

statement, the prosecutor referred to red stains found in the

bathroom, which were presumed to be blood. Defendant argues that

the crime was not committed in the bathroom, and the blood stains

found there were irrelevant.

     The PCR court correctly found that this claim was barred by

Rule 3:22-4 because it could have been, but was not, raised on

direct appeal. Nevertheless, the court addressed the issue and

concluded that defendant had not shown he was denied the effective

assistance of counsel because his attorney failed to object to the

prosecutor's remarks.

     In its decision, the PCR court noted that in his closing, the

prosecutor had argued that the blood evidence in the bathroom

could support a finding that Stathis had been killed there, but

it was more likely that she was killed in defendant's car. The PCR

court pointed out that the State did not have to prove where

Stathis was killed. The State only had to prove that defendant

murdered Stathis. The court found that the prosecutor's remarks



                                   14                               A-0626-16T3
were not improper and defense counsel was not deficient in failing

to object.

     We agree defendant's arguments on this point are without

sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

     E. Evidentiary Hearing

     In addition, defendant argues that the PCR court erred by

failing to conduct an evidentiary hearing on his petition. However,

because defendant failed to raise a prima facie case for relief,

and the existing record was sufficient to resolve defendant's

claims, the court correctly found he was not entitled to an

evidentiary hearing. Porter, 216 N.J. at 354 (citing R. 3:22-

10(b)).

     Affirmed.




                               15                           A-0626-16T3
