                                NOT FOR PUBLICATION WITHOUT THE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-3922-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES A. YURCHAK,

     Defendant-Appellant.
______________________________

                    Submitted May 6, 2019 – Decided May 22, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Sussex County, Indictment No. 09-02-0055.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Brian D. Driscoll, Designated Counsel, on
                    the brief).

                    Francis A. Koch, Sussex County Prosecutor, attorney
                    for respondent (Shaina Brenner, Assistant Prosecutor,
                    of counsel and on the briefs).

                    Appellant filed a pro se supplemental brief.

PER CURIAM
      On February 19, 2008, police arrived at the residence of defendant, James

A. Yurchak, in response to a call from defendant's stepson, Sheriff's Officer

William Heater, Jr. Defendant and his wife were in their bed; defendant's wife

had suffered a fatal gunshot wound to the head, and defendant was shot in the

head, but still alive. Heater gave the police defendant's handgun, which he had

found on the bedroom floor. Forensic analysis revealed defendant's partial

fingerprint on the bottom of the magazine in the gun.

      A Sussex County grand jury indicted defendant for his wife's murder

approximately one year later. Defense counsel filed an omnibus motion that,

among other things, sought to dismiss the indictment, based on alleged

prosecutorial misconduct and failure to introduce exculpatory evidence to the

grand jury, and to suppress certain statements investigators obtained from one

of defendant's treating physicians.    The motions were never heard before

defendant pled guilty pursuant to a plea agreement to the lesser-included charge

of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1). The State

agreed to recommend a ten-year term of imprisonment, subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

      The judge sentenced defendant to a nine-year term of imprisonment. We

considered his appeal on our Excessive Sentence Oral Argument calendar and


                                                                        A-3922-17T1
                                       2
remanded the matter for resentencing. Judge Stuart Minkowitz imposed the

sentence on remand.1

      Defendant filed a timely pro se petition for post-conviction relief (PCR),

alleging ineffective assistance of counsel (IAC), including numerous specific

instances of deficient conduct, three of which are raised now on appeal. In

particular, defendant alleged counsel failed to conduct a proper investigation,

including investigating possible intimidation of his stepson, described as both a

critical witness for the State and defendant, which limited the defendant's ability

to challenge the partial print on the bottom of the weapon. Defendant posited

someone "wiped" the gun clean.

      Defendant also asserted counsel provided ineffective assistance because

there were conflicting medical opinions regarding the course the bullet took in

passing through defendant's head.       The State's theory was that defendant

attempted suicide after killing his wife. However, there was evidence, including

the opinions of the doctors who treated defendant at the hospital, that the path

of the bullet was not front to back, but rather back to front, making it unlikely




1
  The reason for our remand, and the correction of the original sentence, are
immaterial to the issues on appeal. Judge Minkowitz entered an amended
judgment of conviction on December 1, 2016.
                                                                           A-3922-17T1
                                        3
defendant shot himself. The prosecutor acknowledged this proof problem at the

time of sentencing.

      Defendant asserted that at the time of the incident, he took numerous

medications to relieve his chronic pain. He certified that he "blacked out under

the effects of these medications and was not aware of what . . . [took] place . . . ."

In essence, defendant's claim was that someone else committed the shootings.

      Lastly, defendant asserted appellate counsel provided ineffective

assistance by failing to argue on appeal that the indictment should have been

dismissed because of prosecutorial misconduct.

      Judge Minkowitz, who was not the plea judge, considered all of

defendant's IAC claims at the PCR hearing. In his written opinion denying

defendant's petition, Judge Minkowitz scrupulously reviewed defendant's sworn

testimony at the time of the plea allocution. Then, defendant admitted under

oath that on the day of the shootings, he was in great pain, his wife was severely

depressed, in part because of her mother's death the day before, and defendant

acknowledged he decided "to alleviate all of the suffering . . . it would be best

to commit suicide." Defendant testified that he shot his wife and turned the gun

on himself.




                                                                              A-3922-17T1
                                          4
      Judge Minkowitz detailed defendant's answers to questions during the

plea allocution, which demonstrated defendant was satisfied with defense

counsel's representation, had reviewed discovery with counsel, as well as

potential defenses, and had the benefit of counsel's advice regarding the

strengths and weaknesses of the case. Judge Minkowitz detailed defendant's full

understanding of the plea agreement and defendant's waiver of the opportunity

to pursue the omnibus motion filed by his attorney. The judge found defendant

"entered the guilty plea freely and voluntarily . . . ."

      After    explaining    relevant   case    law,   including   the   governing

Strickland/Fritz 2 standard and the requirements of Rule 3:22-10(e) regarding

defendant's entitlement to an evidentiary hearing, Judge Minkowitz rejected

defendant's claim that defense counsel failed to conduct an adequate

investigation. He noted that defendant "offer[ed] no evidence . . . through

affidavit or certification, to support" the assertion that his stepson was

intimidated into suppressing evidence, including fingerprint evidence on the

weapon. Therefore, citing State v. Cummings, "the allegation [was] insufficient

to make a prima facie [IAC] showing . . . ." See 321 N.J. Super. 154, 171 (App.



2
  Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 58 (1987).
                                                                           A-3922-17T1
                                          5
Div. 1999) ("bare assertion[s] . . . [are] insufficient to support a prima facie case

of ineffectiveness").

      In the context of rejecting defendant's claim of inadequate investigation,

Judge Minkowitz quoted at length defense counsel's statement at the time of the

plea allocution. Counsel told the court about the conflicting medical opinions

regarding the path of the bullet that pierced defendant's head, and that "[b]oth

sides had experts that would have been presented . . . at trial" on that issue.

(Emphasis added).

      Lastly, the judge rejected defendant's IAC claim as to appellate counsel,

accepting the State's contention that "appellate counsel could not object to the

indictment . . . because . . . [d]efendant pled guilty and waived his right to appeal

the denial of any pretrial motions." See, e.g., State v. Marolda, 394 N.J. Super.

430, 435-36 (App. Div. 2007) (refusing to consider on appeal the defendant's

argument that the judge incorrectly decided his motion to dismiss the indictment

"[b]ecause [the] defendant did not preserve the issue[] . . . by entry of a

conditional guilty plea, [and] has waived his right to relief . . . ."). Judge

Minkowitz entered an order denying the petition and this appeal followed.

      Before us, defendant reasserts the IAC claims against trial and appellate

counsel we detail above. In a pro se supplemental brief, defendant certifies that


                                                                             A-3922-17T1
                                         6
before the grand jury, the prosecutor solicited privileged statements from a

medical provider, defendant was under the influence of his medications at the

time of his guilty plea and "was not capable of making a clear and knowing

decision."   He also asserts that trial counsel should have conducted a

"competency" evaluation, and that the prosecution withheld information. We

discern defendant claims PCR counsel provided ineffective assistance.

      Having considered these arguments, we affirm substantially for the

reasons expressed by Judge Minkowitz. As to the allegations contained in

defendant's pro se submission, they either were not raised before Judge

Minkowitz or otherwise lack sufficient merit to warrant discussion in a written

decision. R. 2:11-3(e)(2). Finally, solely on the record before us, we cannot

conclude that PCR counsel provided ineffective assistance under the standards

set forth by the Court in State v. Rue, 175 N.J. 1 (2002), and State v. Webster,

187 N.J. 254 (2006).

      Affirmed.




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