                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                     State v. Terry C. Jones (A-19-12) (070733)

Argued October 21, 2013 -- Decided September 23, 2014

PER CURIUM

         In this appeal concerning a petition for post-conviction relief (PCR), the Court addresses whether defendant
has alleged facts that, when viewed in the light most favorable to him, are sufficient to demonstrate a reasonable
likelihood of success on his ineffective assistance of counsel claims, such that an evidentiary hearing was warranted.

          On May 3, 2005, a jury convicted defendant, Terry Jones, of two counts of sexual assault and two counts of
criminal sexual contact. The charges involved allegations that, on two occasions in 2003, defendant raped nineteen-
year-old K.A., a Florida resident, while she was living with him and his family in New Jersey. At trial, defendant
did not take the stand in his own defense. On direct appeal, the Appellate Division affirmed the conviction,
remanding only for the criminal sexual contact counts to be merged into the sexual assault counts. This Court
denied defendant’s petition for certification.

          On October 14, 2008, defendant filed a pro se PCR petition, alleging ineffective assistance of counsel. An
amended verified PCR petition, dated March 13, 2009, was filed with the assistance of assigned counsel. In his
petition, defendant claims that defense counsel was ineffective for failing to (1) procure the appearance of an alibi
witness (Brenadette Brame) who would have provided exculpatory and corroborative evidence that would have
supported the defense; (2) obtain and introduce into evidence phone records that would have corroborated the
defense’s theory of why K.A. fabricated the sexual assault charges against defendant; and (3) advise defendant that,
if he were to testify, his criminal record would be “sanitized,” and the jury could be informed only that he had a
prior conviction for “a fourth-degree crime,” not “endangering the welfare of a child.”

          On July 31, 2009, the PCR court denied defendant’s petition without conducting an evidentiary hearing. In
respect of the failure to call Brame as a witness, the PCR court noted that defendant had not provided an affidavit
addressing her willingness and availability to testify. The court also found that, even if Brame’s statement were
true, it would not provide defendant with an alibi because her testimony would not directly contradict K.A.’s version
of events. Regarding the telephone records, the PCR court found that the fact that defendant spoke to K.A.’s mother
was not exculpatory. Finally, the court determined that defendant’s claim that he would have testified if properly
advised that his prior conviction would be sanitized was a “bald assertion.” The PCR court noted that defendant
explicitly informed the trial court that he understood his right to testify and did not wish to do so.

          On May 2, 2012, the Appellate Division affirmed, holding that defendant had not presented a prima facie
case of ineffective assistance of counsel and therefore was not entitled to an evidentiary hearing on his claims. This
Court granted defendant’s petition for certification, “limited to the issue whether defendant was entitled to an
evidentiary hearing on his petition for post-conviction relief.” State v. Jones, 212 N.J. 458 (2012).

HELD: Viewing the facts in the light most favorable to him, defendant presented a close but creditable prima facie
case of ineffective assistance, entitling him to an evidentiary hearing under Rule 3:22-10(b).

1. The accused in a criminal prosecution has “the right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (internal quotation marks omitted). For an ineffective assistance claim, a
defendant must show that counsel’s performance was objectively deficient and that “the deficient performance
prejudiced the defense[,] . . . depriv[ing] the defendant of a fair trial, a trial whose result is reliable.” Strickland,
supra, 466 U.S. at 687. Thus, to succeed in making a prima facie case, there must be “‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” State v. Fritz, 105
N.J. 42, 52, 60-61 (1987) (quoting Strickland, supra, 466 U.S. at 694) (adopting Strickland approach). (pp. 13-14)

                                                           1
2. Post-conviction relief is New Jersey’s analogue to the federal writ of habeas corpus. While evidentiary hearings
are not required in PCR proceedings, Rule 3:22-10 provides courts the discretion to grant an evidentiary hearing and
take oral testimony. If a defendant presents a prima facie case in support of PCR, an evidentiary hearing generally
should be conducted. When determining whether to conduct an evidentiary hearing, the PCR court should view the
facts in the light most favorable to the defendant. If, with the facts so viewed, the PCR claim has a reasonable
probability of being meritorious, then the defendant should ordinarily receive an evidentiary hearing. (pp. 14-16)

3. Here, defendant’s petition was not accompanied by an affidavit or certification setting forth the facts that he
wished to present. Nonetheless, the Court can determine on this record how Brame’s testimony would have
bolstered the defense, because she spoke to the prosecutor’s office, and a notice of alibi was filed alerting the State
about her. Further, although defendant’s simple verification does not comply with the Court Rules, the Court
accepts the statement as indicating that defendant would have testified if he properly understood how sanitization
would work. Defendant’s understanding and counsel’s reason for failing to secure Brame’s presence at trial are
matters better left to exploration through the PCR process. (pp. 16-18)

4. Viewing the facts in the light most favorable to defendant, Brame would have testified that defendant and K.A.
had been arguing, that she (Brame) had spent the night of the second alleged assault with defendant, and that she had
engaged in sexual relations with defendant. That testimony would have been consistent with defendant’s version of
events and could have raised reasonable doubt in the minds of the jurors. Brame’s statement also corroborated the
growing dispute between defendant and K.A. over her refusal to follow his rules and his stated intention to return
her to Florida. The statement thus lent overall support to defendant’s theory of the false accusations. Although the
timing and motivation of Brame’s statement and her reason for not voluntarily appearing to testify at trial raise
important questions, those questions cannot be assessed and resolved without determining credibility. The PCR
court should have heard from the witnesses, including trial counsel, whose reason for not ensuring the testimony of
an apparent alibi and corroborative witness is unexplained on the record as it presently stands. (pp. 18-21)

5. With regard to defendant’s claim that counsel misinformed him about the sanitization of his prior conviction,
and, in so doing, led defendant to forego his right to take the stand in his own defense, the Court finds that the record
is entirely compatible with defendant’s claim. Defendant’s statements to the trial court about choosing not to testify
are consistent with a decision not to testify based on the incorrect understanding that cross-examination about his
prior conviction would include discussion of the specific past offense for which he had been convicted. Although
the Court criticizes PCR counsel’s failure to follow the Court Rules, the Court accepts defendant’s verification that
trial counsel had not informed him that the prior conviction would be sanitized. The Court further accepts that had
defendant testified, his testimony would have been consistent with the defense’s theory of fabrication by K.A. and
the testimony of Brame and other witnesses -- namely, that K.A. did not want to return to Florida. Such a defense
may have impacted the jury and altered the outcome. (pp. 21-22)

6. This case turned on a question of credibility. Defendant raises ineffective assistance of counsel claims about
evidence that, had it been introduced, may have bolstered the jury’s belief in his version of events. The issues
involving Brame’s testimony and the sanitization of defendant’s prior conviction presented claims that bore directly
on his entitlement to PCR. Viewed most favorably to defendant, the facts underlying his claims presented a close
but creditable prima facie case of ineffective assistance. The PCR court should have resolved the disputed facts
involved in these ineffective assistance of counsel claims only after an evidentiary hearing had been conducted. (pp.
22-23)

7. Similarly, defendant’s ineffective assistance of counsel claim with respect to the admission of phone records
should have been resolved only after conducting an evidentiary hearing. The admission of the records could have
corroborated defendant’s defense that he was actively talking with K.A.’s mother, purportedly about expelling K.A.
from his home and sending her back to Florida. (pp. 23)

         The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for an evidentiary hearing on the three claims of ineffective assistance of counsel raised before this Court.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in this opinion.


                                                           2
                                        SUPREME COURT OF NEW JERSEY
                                          A-19 September Term 2012
                                                   070733

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

TERRY CORNELIOUS JONES,

    Defendant-Appellant.


         Argued October 21, 2013 – Decided September 23, 2014

         On certification to the Superior Court,
         Appellate Division.

         Lois A. De Julio, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney; Ms. De Julio and Brian D.
         Driscoll, Designated Counsel, on the
         briefs).

         Jenny M. Hsu, Deputy Attorney General,
         argued the cause for respondent (John J.
         Hoffman, Acting Attorney General of New
         Jersey, attorney).


    PER CURIAM

    Defendant, Terry Jones, was convicted of two counts of

sexual assault and two counts of criminal sexual contact.    The

charges involved allegations that, on two occasions about a week

apart, defendant raped a nineteen-year-old girl who was living

with him and his family.    This appeal concerns his petition for

post-conviction relief (PCR), in which he claims, in relevant

                                 1
part, that defense counsel was ineffective for failing to (1)

procure the appearance of an alibi witness who would have

provided exculpatory and corroborative evidence that would have

supported his defense; (2) obtain and introduce into evidence

phone records that would have corroborated the defense’s theory

of why the accuser fabricated the sexual assault charges against

him; and (3) advise defendant that, if he were to testify, the

jury could be informed only that he had a prior conviction for

“a fourth-degree crime” and not a conviction for endangering the

welfare of a child.    Defendant did not take the stand in his own

defense.

    The PCR court denied defendant’s petition without

conducting an evidentiary hearing, and the Appellate Division

affirmed.   We granted certification solely to consider

defendant’s assertion that his claims of ineffective assistance

of counsel (IAC) deserved an evidentiary hearing.

    This matter came down to a question of whom to believe --

defendant or his accuser -- notwithstanding the presentation of

DNA evidence at trial.    We cannot dismiss defendant’s assertions

of ineffective assistance of counsel by calling them simple

matters of strategy.     Defendant raises IAC claims about the

failure of counsel to introduce evidence that may have bolstered

the credibility of his version of what occurred.    The first and

third issues raised by defendant could not be properly assessed

                                  2
without a fair opportunity for the development of evidence.      The

resolution of disputed facts material to those issues bore

directly on defendant’s entitlement to post-conviction relief.

The disputed facts should have been judged in the light most

favorable to defendant.    See State v. Porter, 216 N.J. 343, 353-

55 (2013).    Viewing the facts under that standard, defendant

presented a close but creditable prima facie case of ineffective

assistance, entitling him to an evidentiary hearing under Rule

3:22-10(b).

    We therefore reverse the judgment of the Appellate Division

and remand for an evidentiary hearing on defendant’s PCR

petition.

                                 I.

    We present the facts from defendant’s trial and as

supplemented by the present PCR record.    In January 2003,

nineteen-year-old K.A. moved from Florida to defendant’s home in

New Jersey.   K.A. came to New Jersey on the recommendation of

her parents in order to distance herself from a ne’er-do-well

boyfriend in Florida, join defendant’s household, and attend a

local community college.   Defendant was an ex-boyfriend of her

mother’s.    K.A. had known him all her life and regarded him as a

father figure.   Defendant’s brother, Denard Williams, and his

six-year–old nephew also lived with him.

    Peacefulness did not follow, however.     According to

                                  3
Williams, conflict arose over K.A.’s desire to use her car to

come and go with friends as she wished, contrary to defendant’s

rules governing K.A.’s behavior.       At some point before the

allegations at the core of this matter arose, Williams observed

that K.A.’s bags had been packed as if she were leaving.

Defendant did not testify, so the defense’s theory about this

conflict emerged through Williams’s testimony.

     K.A. testified.     She asserted that defendant raped her on

March 18 and 22, 2003.     On both occasions, she stated that he

entered her room drunk around 4:00 a.m., ignored her protests,

overcame her physical struggles, and held her down while he

penetrated her.   She said that defendant used a condom on each

occasion.

     K.A. testified that, after the first sexual assault, she

did not go to the police or tell anyone other than her then-

boyfriend, William Godbolt, because she was frightened and did

not think she would be believed.       However, the morning after the

second alleged assault, she contacted a young girl, T.C.,

through an AOL chat room, and asked T.C. to call Godbolt or the

police on her behalf.1    When help did not arrive, K.A. went to

the local police headquarters around 11:00 a.m., without

changing her clothing.     She brought with her a used condom,

1 According to T.C.’s and Godbolt’s testimony, T.C. contacted
Godbolt, but he was confused by the message and failed to act on
it.
                                   4
which she said she had removed from defendant’s trash, wrapped

up in a napkin, and transported in a waist purse.   K.A. told

detectives who interviewed her about the March 22 incident.

However, she did not mention the March 18 incident until a few

months before the trial was to begin, which was almost two years

later.

     K.A. was transported to a hospital for examination.      A

Sexual Assault Nurse Examiner, who testified at trial,

discovered faint bruising and scratches on K.A.’s upper arms but

no vaginal injuries.   The nurse explained that vaginal abrasion

is rare in sexual assault cases, except in instances of gang

rape or penetration with an object.   K.A.’s clothes tested

negative for blood and semen.   DNA testing of the condom showed

defendant’s semen and bodily fluids, and K.A.’s DNA, as well as

an anomalous “peak,” which, a testifying DNA expert explained,

could have been the result of contamination during testing, or

could possibly have represented the DNA of a third person.

     Police arrested defendant at his home.   They also took the

towel that K.A. said defendant had worn when he entered her room

and the bedspread from K.A.’s room.   Both articles tested

positive for semen, but no DNA tests were performed on those

objects.   When questioned after waiving his Miranda2 rights,


2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
                                 5
defendant first insisted that K.A.’s allegations were

impossible, then, after being told about the condom, stated

“Maybe this could have happened” because he had been drinking.

He then refused to talk to police further.   Defendant never

confessed or admitted to the assaults.

    At trial, in addition to K.A.’s testimony, the State

presented testimony from Godbolt, T.C., the officers who had

interviewed K.A. and defendant, the nurse who had examined K.A.,

and the technicians who had analyzed the clothing, condom, and

DNA samples.   Defendant’s defense theory was that K.A. had

fabricated the story of the assaults to retaliate because he was

going to send her back to Florida due to tensions over the use

of her car and her desire for more freedom to go out with

friends.

    Defendant did not testify on his own behalf.    His brother,

Williams, testified about the conflicts between K.A. and

defendant.   Williams also stated that he had not heard anything

on the night of the first incident even though his bedroom was

immediately below the third-floor room where, K.A. testified,

the assaults had occurred.   He had been out of town at the time

of the second incident.   Also, Williams stated that during the

days between the first and second alleged incidents, he had not

noticed any difference in behavior between defendant and K.A.

    Notably, a potential alibi witness, Brenadette Brame, did

                                 6
not testify.3   Her previously recorded statement to the

prosecutor’s office, which was not introduced at trial,

indicated that she was with defendant on the evening of March

21, 2003, and went back to his house with him around 2:00 or

3:00 a.m. on March 22.   In her statement, Brame reported that

defendant and K.A. previously had been arguing over K.A.’s

behavior, K.A.’s bags had been packed, and defendant had

threatened to send K.A. back to Florida.    Brame said that, when

she and defendant returned to defendant’s home on March 22,

defendant and K.A. got into an argument.    Defendant called

K.A.’s mother to tell her that he was going to send K.A. back to

Florida the next day.    Brame also stated that she and defendant

had sexual relations in a bedroom on the third floor during the

early morning hours of March 22, that he used a condom, and that

afterwards he threw the condom in the trash.

     At the end of defendant’s case, defense counsel indicated

in a sidebar that he was waiting for an unidentified witness.

Earlier during the trial, defense counsel had stated in colloquy

that a notice of alibi had been filed with respect to Brame’s

testimony.   However, when the unidentified witness was not found

in the courtroom and the trial court expressed unwillingness to

delay further, the defense did not ask for a continuance and

3 From the record it appears that Brame was expected to be a
voluntary witness. Defendant had filed a notice of alibi for
her. There is no evidence that defense counsel subpoenaed her.
                                 7
simply rested.   Defense counsel did not state the identity of

the absent witness.

    Prior to trial, defense counsel attempted, but failed, to

obtain telephone records showing calls placed from defendant’s

cell phone to K.A.’s mother.    Those records, which were appended

to defendant’s PCR brief, show a call lasting sixty-six minutes

at 10:26 p.m. on Friday, March 21, 2003, and a second call

lasting one minute at 4:38 a.m. on Saturday, March 22, 2003.     In

colloquy during trial, defense counsel stated that the phone

records would be relevant to rebut anticipated testimony by

K.A.’s mother that defendant had not called her about sending

K.A. back to her.     However, the prosecution never called K.A.’s

mother as a witness.    The telephone records’ corroborative

effect was not otherwise addressed and they did not become part

of the evidence presented to the jury.

    On May 3, 2005, the jury convicted defendant on two counts

of sexual assault and two counts of criminal sexual contact.

The court sentenced defendant to two consecutive seven-year

sentences on the sexual assault counts for an aggregate sentence

of fourteen years, subject to the No Early Release Act, N.J.S.A.

2C:43-7.2, as well as community supervision for life and

registration pursuant to Megan’s Law, N.J.S.A. 2C:7-1 to -23.

On direct appeal, the Appellate Division affirmed the

conviction, remanding only for the criminal sexual contact

                                  8
counts to be merged into the sexual assault counts, with no

resulting change in defendant’s sentence.    Defendant petitioned

for certification, which was denied.

    On October 14, 2008, defendant filed a pro se petition for

post-conviction relief, asserting factually scanty claims of

ineffective assistance of counsel.     An amended verified PCR

petition, dated March 13, 2009, was filed with the assistance of

assigned counsel.    The amended petition’s claims of IAC were

based on trial counsel’s failure to procure Brame as a witness,

trial counsel’s failure to present the phone records showing

that defendant had telephoned K.A.’s mother the evening before

and during the early morning when the second incident allegedly

occurred, and trial counsel’s alleged failure to inform

defendant that if he were to testify his criminal record would

be “sanitized,” as well as other grounds not relevant to this

proceeding.    By sanitization of his record, defendant referred

to the court’s ruling that his prior conviction would be

described in front of the jury only as a “fourth-degree

conviction” and not as “a conviction for endangering the welfare

of a child.”

    On July 31, 2009, the PCR court denied defendant’s petition

without conducting an evidentiary hearing on any of the issues

raised.   In respect of the failure to call Brame as a witness,

the court noted that defendant had not provided an affidavit

                                  9
addressing her willingness and availability to testify.    The

court found that, even if Brame’s statement were true, it would

not provide defendant with an alibi because defendant could have

snuck out of the room to commit the assault.     Thus, the court

concluded that the testimony did not directly contradict K.A.’s

version of events.     The court labeled defendant’s assertion that

he would have testified if properly advised that his prior

conviction would be sanitized a “bald assertion,” and noted that

defendant explicitly informed the court that he understood his

right to testify and did not wish to do so.     Finally, regarding

the telephone records, the court found that there was nothing

exculpatory in the mere fact that defendant spoke to K.A.’s

mother on the phone.

    Defendant appealed the denial of post-conviction relief and

the Appellate Division affirmed in an unpublished opinion filed

on May 2, 2012.   For substantially the reasons given by the PCR

court, the Appellate Division held that defendant had not

presented a prima facie case of ineffective assistance of

counsel and therefore was not entitled to an evidentiary hearing

on his claims.    We granted defendant’s petition for

certification, “limited to the issue whether defendant was

entitled to an evidentiary hearing on his petition for post-

conviction relief.”     State v. Jones, 212 N.J. 458, 458 (2012).



                                  10
                                 II.

                                 A.

    Defendant argues that he established a prima facie case for

post-conviction relief and was therefore entitled to an

evidentiary hearing.   In respect of Brame’s testimony, defendant

notes that, although no affidavit was submitted, her sworn and

notarized statement to the prosecutor’s office was included in

the appendix to his PCR brief.   Defendant asserts that Brame’s

testimony would have supported his case both by providing an

alibi for one of the times K.A. stated defendant assaulted her,

and by supporting defendant’s theory that K.A. falsely accused

him because she was angry that he was going to send her back to

Florida.   Defendant maintains that, because Brame’s testimony

could have seriously undermined K.A.’s credibility, it could

have changed the outcome of the case.

    Defendant suggests that the phone records, which were

included in the appendix to his PCR brief, corroborate Brame’s

statement that defendant had called K.A.’s mother between 4:00

and 5:00 a.m. on March 22.   Defendant also argues that the phone

records would have supported his theory that K.A. fabricated the

assaults in retaliation because she went to the police shortly

after the calls to her mother were made.   He further asserts

that the timing of the second call undermines K.A.’s testimony,

which would have placed defendant in her bedroom at about that

                                 11
time.   Defendant therefore maintains that the PCR court should

have conducted an evidentiary hearing on the issue of trial

counsel’s failure to introduce the phone records at trial.

    Finally, defendant argues that he made out a prima facie

case of ineffective assistance of counsel concerning trial

counsel’s failure to properly advise him, in connection with his

right to testify, that his prior conviction would be sanitized.

Defendant asserts that the PCR court’s reliance on the colloquy

in which defendant waived his right to testify is misplaced

because he is arguing that his voluntary decision not to testify

was based on misinformation that he received in off-the-record

discussions with his attorney.   Defendant further notes that his

testimony would have been particularly important because the

case turned on whether the jury believed K.A.’s testimony or

defendant’s contrary version of events.

                                 B.

    The State argues that defendant failed to make out a prima

facie case of ineffective assistance of counsel in respect of

any of the issues raised.   First, the State argues that defense

counsel’s decision not to call Brame as a witness was an

informed strategic choice made after adequate investigation.

Specifically, the State asserts that her testimony would have

provided only a weak alibi because (1) the forensic evidence

excluded her as a possible contributor to the DNA found on the

                                 12
condom that K.A. brought to the police;4 (2) she had come forward

with her statement at a late date; and (3) defendant had failed

to mention an alibi in his statements to police.   In respect of

the phone records, the State argues that defense counsel was not

ineffective for failing to introduce them because they were not

relevant to any issues in dispute at trial and because the

records themselves do not establish the content of the call.

Finally, the State argues that defendant is not entitled to an

evidentiary hearing on the issue of counsel’s advice about

whether to testify because the trial court adequately informed

defendant of his right to testify on the record and because

defendant has entirely failed to establish what testimony he

would have given and how it would have changed the outcome of

the trial.

                               III.

     The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee

that the accused shall have the right to the assistance of

counsel in a criminal prosecution.    U.S. Const. amend. VI; N.J.

Const. art. I, ¶ 10.   The right is “the right to the effective

4 This information was provided by the State as part of its
Appendix filed with this Court. It does not appear to have been
part of the evidence at trial or to have been submitted to the
PCR court. We have no affidavit by defense trial counsel or any
findings by the PCR court on the asserted trial-strategy
conclusion advanced by the State in respect of the DNA test
results.
                                13
assistance of counsel.”   Strickland v. Washington, 466 U.S. 668,

686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)

(internal quotation marks omitted); see State v. Fritz, 105 N.J.

42, 58 (1987) (adopting Strickland approach to assessing whether

counsel had acted in accord with constitutional requirements).

A defendant must show that counsel’s performance was objectively

deficient and that “the deficient performance prejudiced the

defense[,] . . . depriv[ing] the defendant of a fair trial, a

trial whose result is reliable.”     Strickland, supra, 466 U.S. at

687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.    Thus, to succeed

in making a prima facie case, there must be “‘a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’”     Fritz,

supra, 105 N.J. at 52, 60-61 (quoting Strickland, supra, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).    “‘A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.’”   Id. at 52 (quoting Strickland,

supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at

698).

    In New Jersey, PCR is our analogue to the federal writ of

habeas corpus.   See State v. Afanador, 151 N.J. 41, 49 (1997);

State v. Preciose, 129 N.J. 451, 459 (1992); Pressler &

Verniero, Current N.J. Court Rules, comment on R. 3:22-1 (2014).

Neither a substitute for direct appeal, see R. 3:22-3, nor a

                                14
vehicle to relitigate the merits of cases resolved on their

merits, see R. 3:22-5, PCR proceedings offer the best

opportunity for ineffective assistance claims to be reviewed.

Preciose, supra, 129 N.J. at 459-60.   As stated in Preciose,

“[i]neffective-assistance-of-counsel claims are particularly

suited for post-conviction review because they often cannot

reasonably be raised in a prior proceeding.”   Id. at 460 (citing

R. 3:22-4(a) and State v. Mitchell, 126 N.J. 565, 585 (1992)).

    Further, while evidentiary hearings are not required, Rule

3:22-10 provides discretion to the PCR court to grant an

evidentiary hearing and take oral testimony.   See id. at 462.

In State v. Marshall, we explained that, if a defendant has

presented a prima facie case in support of PCR, an evidentiary

hearing generally should be conducted.   148 N.J. 89, 158, cert.

denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

When determining the propriety of conducting an evidentiary

hearing, the PCR court should view the facts in the light most

favorable to the defendant.   Ibid. (citing Preciose, supra, 129

N.J. at 462-63); see also Porter, supra, 216 N.J. at 354

(stating same); R. 3:22-10(b).   If, with the facts so viewed,

the PCR claim has a reasonable probability of being meritorious,

then the defendant should ordinarily receive an evidentiary

hearing in order to prove his entitlement to relief.    Marshall,

supra, 148 N.J. at 158.

                                 15
                                IV.

    Here, defendant argues that he received ineffective

assistance of counsel based on three separate alleged errors by

trial counsel.   Because the PCR court denied defendant’s

petition without an evidentiary hearing, the question before

this Court is whether defendant has alleged any facts that, when

viewed in the light most favorable to him, are sufficient to

demonstrate a reasonable likelihood of success on his PCR claim.

                                A.

    In order for a claim of ineffective assistance of counsel

to entitle a PCR petitioner to an evidentiary hearing, “bald

assertions” are not enough -- rather, the defendant “‘must

allege facts sufficient to demonstrate counsel’s alleged

substandard performance.’”   Porter, supra, 216 N.J. at 355

(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div.), certif. denied, 162 N.J. 199 (1999)).   At the outset,

that requirement presents a hurdle for defendant to overcome.

    We duly note the State’s valid point, stressed in its

argument before our Court, that defendant’s petition was not

accompanied by an affidavit or certification by defendant, or by

others, setting forth with particularity the facts that he

wished to present.   Instead, PCR counsel included a cryptic

footnote in the Amended Petition for Post-Conviction Relief

stating that “[p]etitioner incorporates the Brief Statement of

                                16
Facts into the Amended Verified Petition, which constitutes his

verification in support of post-conviction relief.”       Defendant

signed a simple verification attached to the Amended Petition.

In the Brief and Appendix filed in support of Defendant-

Petitioner’s Petition for Post-Conviction Relief, PCR counsel

affixed a footnote to the title of the Statement of Facts.         That

footnote cross-referenced the footnote in the Amended Verified

Petition, stating:     “The Amended Verified Petition incorporates

the Statement of Facts.    It represents Petitioner’s verification

in support of post-conviction relief.”

    Counsel’s practice is not in compliance with the Court

Rules, which require that factual assertions in a petition for

post-conviction relief be made by affidavit or certification in

order to secure an evidentiary hearing.       See R. 3:22-10(c).    The

reason that we do not visit on defendant the failings of counsel

in this instance is that we know what Brame told the

prosecutor’s office and how her testimony would have bolstered

defendant’s defense.    A notice of alibi had been filed alerting

the State about Brame, so her testimony presumably was expected

to be consistent with defendant’s defense and would have

provided some evidence of alibi.       However, for whatever reason,

defense counsel apparently did not secure her presence.       His

reasons for not doing so are better left to exploration through

the PCR process.

                                  17
    Furthermore, although defendant’s verification is

unorthodox, we accept it, for the purposes of this appeal, as

indicating that he would have testified if, as he asserts, he

properly understood how sanitization would work.    That is a

matter that may be more fully revealed through an evidentiary

hearing, and we express no view on any anticipated finding that

the PCR court may make based on a full record.     We disapprove of

the pleading and submission practice engaged in here.    However,

we address the merits in order to speed resolution of

defendant’s assertions about trial counsel’s alleged

ineffectiveness, which deserve proper scrutiny.

                                B.

    With respect to defendant’s claims of IAC based on trial

counsel’s failure to procure Brame’s testimony and to advise him

about sanitization of his prior conviction, the evidence

presents closely poised questions.   We turn first to Brame.

    Viewing the facts in the light most favorable to defendant,

Brame was a witness who, based on her statement given to the

prosecution on October 22, 2004, would have testified that

defendant and K.A. had been arguing, that she had spent the

night of March 21 to March 22, 2003, with defendant, and that

defendant had thrown a used condom in the trash after engaging

in sexual relations with her.   That testimony would have been

consistent with defendant’s version of events and perhaps could

                                18
have raised reasonable doubt in the mind of one or more of the

jurors.

    Moreover, Brame’s statement corroborated defendant’s

version of the growing dispute between him and K.A. over her

refusal to follow his rules and his stated intention to return

her to Florida, which K.A. did not want.   The statement thus

lent overall support to defendant’s theory of the false

accusations, even though Brame’s statement about her presence at

the home only covered the date of the second alleged incident.

However, it bears repeating that K.A. did not come forward with

her allegation about the first asserted sexual assault until a

few months before trial.    There were inconsistencies in the

State’s case with which the defense could work in making an

argument using Brame’s testimony in aid of raising reasonable

doubt.    Although the timing and motivation of Brame’s statement

and her reason for not voluntarily appearing to testify as

apparently had been expected raise important questions, those

questions cannot be assessed and resolved without determining

credibility.   See Porter, supra, 216 N.J. at 355 (“Even a

suspicious or questionable affidavit supporting a PCR petition

‘must be tested for credibility and cannot be summarily

rejected.’” (quoting State v. Allen, 398 N.J. Super. 247, 258

(App. Div. 2008))).    In order to resolve the issue, the PCR

court should have heard from the witnesses, including trial

                                 19
counsel, whose reason for not ensuring the testimony of an

apparent alibi and corroborative witness is unexplained on the

record as it presently stands.

     We acknowledge that Brame’s potential testimony could be

undermined by the fact that defendant made no mention to police

of having spent the night with her when he was questioned after

his arrest.   She also did not come forward with her statement

until a year and a half after the events, a point her statement

lightly addresses.   Brame’s personal relationship with defendant

also presents a self-interested reason for testifying in a way

that supports defendant.   It may simply be that trial counsel

made a strategic decision not to call Brame as a witness.5

However, the issue deserved an evidentiary hearing, particularly

due to the combined effect of having neither Brame nor defendant

testify to present defendant’s version of why the accusation was

false.

     No doubt, according to the trial testimony, defendant’s DNA

and bodily fluids were present in the condom that K.A. presented

to police, as well as the DNA of K.A., who handled the condom.

However powerful, the DNA evidence was not dispositive, and


5 Viewed most favorably to defendant, the colloquy between
defense counsel and the court about whether the defense was
ready to rest suggests that counsel was waiting for another
witness to arrive. Defendant’s PCR petition claims that this
was Brame, suggesting that counsel had not made a strategic
decision not to call her.
                                 20
defendant had a defense to present.   That leads to defendant’s

claim concerning misinformation about the sanitization of his

prior conviction that assertedly led him to forego his right to

take the stand in his own defense.

    The PCR court called defendant’s allegation a “bald

assertion,” and held, on the basis of defendant’s responses to

the court’s voir dire on his waiver, that defendant was

“adequately informed of his right to testify at trial.”

However, sanitization of the prior conviction was never

mentioned during the trial court’s voir dire.   By pointing that

out, we are in no way criticizing the trial court, which had no

obligation to so inquire and risked intruding on private

attorney-client confidences had it explored the nature of the

exchange between defendant and counsel.   We nonetheless are

cognizant that defendant’s responses to the court about choosing

not to testify are also consistent with a decision not to

testify based on the incorrect understanding that cross-

examination about his prior conviction would include discussion

of the specific past offense for which he had been convicted.

Thus, the record is entirely compatible with defendant’s claim.

It is conceivable that defense counsel could have neglected to

inform defendant properly on the issue.

    Moreover, defendant verified, through his petition, his

assertion that counsel had not informed him that the prior

                               21
conviction would be sanitized.    Although we have criticized PCR

counsel’s format for defendant’s swearing to the information, we

accept the verification for purposes of the present analysis.

We further accept that defendant’s testimony would have been in

line with the defense’s theory about the reason for an asserted

fabrication by K.A. and thus would have been consistent with

Williams’s testimony as well as Brame’s statement to the

prosecution -- namely, that K.A. did not want to be sent back to

her mother in Florida.6    Such a defense may well have had an

effect on the jury.   It would have taken only one juror -- with

reasonable doubt arising from the divergent accounts given by

the accuser and the accused -- to have altered the outcome for

defendant.

     Notwithstanding the DNA evidence, this case turned on a

question of credibility.    Defendant raises IAC claims about

evidence that, had it been introduced, may have bolstered the

jury’s belief in his version of events.    The issues involving

Brame’s testimony and the sanitization of defendant’s prior

conviction presented IAC claims that bore directly on

defendant’s entitlement to post-conviction relief.    The disputed


6 Defendant’s certification to the Notice of Alibi, prepared in
respect of Brame’s testimony, is also consistent with the
defense outlined. The certification provides further support
that defendant’s testimony would have been consistent with his
certification and the defensive strategy he was attempting to
put before the jury through a variety of sources.
                                 22
facts underlying those claims cannot be resolved on the present

record.    However, viewed most favorably to defendant, they

presented a close but creditable prima facie case of ineffective

assistance.   We hold that the PCR court should have resolved the

disputed facts involved in these IAC claims only after an

evidentiary hearing had been conducted.

                                 C.

    Finally, with respect to the phone records, their admission

would have corroborated defendant’s defense that he was actively

talking with K.A.’s mother, purportedly about expelling K.A.

from his home and sending her back to Florida.    This IAC claim

deserves consideration in conjunction with the other two claims

of IAC that, we hold, should have been resolved only after an

evidentiary hearing was conducted.    Therefore, we remand this

issue along with the two other issues for an evidentiary PCR

hearing.

                                 V.

    The judgment of the Appellate Division is reversed and the

matter remanded to the trial court for an evidentiary hearing on

the three claims of ineffective assistance of counsel raised by

defendant before this Court.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in this opinion.



                                 23
               SUPREME COURT OF NEW JERSEY

NO.   A-19                                    SEPTEMBER TERM 2012

ON CERTIFICATION TO             Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

TERRY CORNELIOUS JONES,

      Defendant-Appellant.




DECIDED              September 23, 2014
               Chief Justice Rabner                         PRESIDING
OPINION BY                    PER CURIAM
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                   REVERSE AND
CHECKLIST
                                     REMAND
CHIEF JUSTICE RABNER                    X
JUSTICE LaVECCHIA                       X
JUSTICE ALBIN                           X
JUSTICE PATTERSON                       X
JUDGE RODRÍGUEZ (t/a)                   X
JUDGE CUFF (t/a)                        X
TOTALS                                  6




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