                                NOT FOR PUBLICATION WITHOUT THE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-0963-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LARRY CARDONA, a/k/a
LARRY CORDONA,

     Defendant-Appellant.
_______________________

                   Submitted April 22, 2020 – Decided May 14, 2020

                   Before Judges Haas and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 11-09-0940.

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

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Kelsey Alina Ball, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Larry Cardona appeals from the August 10, 2018 denial of his

post-conviction relief (PCR) petition as well as the denial of his request for an

evidentiary hearing. We affirm, substantially for the reasons expressed in Judge

Robert A. Kirsch's thoughtful and comprehensive oral opinion. We add the

following brief comments.

      A Union County Grand Jury returned Indictment Number 11-09-0940

against defendant, charging him with first-degree attempted murder, N.J.S.A.

2C:11-3 and N.J.S.A. 2C:5-1 (count one); second-degree aggravated assault,

N.J.S.A. 2C:12-lb(l) (count two); second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5b (count three); and second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four).

      Following a 2013 jury trial, defendant was found guilty of counts two,

three, and four. Although defendant's trial counsel argued in favor of concurrent

sentences at the time of sentencing, defendant was sentenced to a ten-year prison

term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count

two, and a consecutive six-year prison term, subject to a thirty-six month period

of parole ineligibility on count three. The sentencing judge merged count four

into count two.




                                                                         A-0963-18T4
                                       2
        Defendant appealed his conviction and sentence. In his direct appeal,

defendant specifically argued that his case should be "remanded for re -

sentencing because consecutive sentences are unwarranted in this matter." In

2017, we affirmed. See State v. Cardona, No. A-1205-14 (App. Div. May 11,

2017). Regarding defendant's contention that the trial court incorrectly imposed

consecutive sentences, we noted:

              the [trial] court explained that consecutive sentences
              were appropriate because "these were separate offenses
              that were committed at separate times with separate
              victims." Specifically, the [trial] court noted "no one
              handed . . . [defendant] the gun at the exact time of the
              shooting. It's clear, based upon his possession of
              ammunition, . . . that he had the gun before . . . ." That
              defendant committed separate offenses, and that there
              can be no free crimes in a system for which the
              punishment shall fit the crime, are relevant Yarbough [1]
              factors that support the imposition of consecutive
              sentences.

        In March 2018, defendant filed a petition for PCR, claiming his trial

counsel was ineffective for failing to adequately argue for concurrent terms of

imprisonment on the aggravated assault and weapons offenses.          Judge Kirsch

denied his petition without an evidentiary hearing. In doing so, Judge Kirsch



1
    State v. Yarbough, 100 N.J. 627 (1985).



                                                                           A-0963-18T4
                                          3
referenced the record from defendant's sentencing as well as our 2017 opinion.

Judge Kirsch observed that the "consecutive aspect of the sentencing" was

"specifically and unambiguously raised by . . . trial counsel, and addressed by

[the sentencing judge.]"    Judge Kirsch concluded:

             This issue was raised at the trial court appropriately and
             effectively . . . . It was raised on direct appeal, and was
             considered and rejected by the Appellate Division. As
             a result, the [c]ourt cannot find any deficiency by [trial
             counsel] in raising the issue, or by appellate counsel
             and, so, therefore, the first prong of Strickland [2] has not
             been met, let alone the second prong . . . . I find the
             petitioner has not set forth a prima facie showing
             warranting an evidentiary hearing.

       On appeal, defendant raises the following argument:

                                 POINT ONE

             [DEFENDANT]   IS  ENTITLED    TO   AN
             EVIDENTIARY HEARING ON HIS CLAIM THAT
             HIS ATTORNEY RENDERED INEFFECTIVE
             ASSISTANCE OF COUNSEL FOR FAILING TO
             ARGUE ADEQUATELY AT SENTENCING.

       Appellate courts review a judge's decision to deny a PCR petition without

an evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451,

462 (1992). Merely raising a PCR claim does not entitle a defendant to an

evidentiary hearing. Instead, a defendant must first establish a prima facie claim


2
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                             A-0963-18T4
                                          4
of ineffective assistance of counsel before an evidentiary hearing is required. R.

3:22-10(b); State v. Porter, 216 N.J. 343, 354 (2013). In addition to a prima

facie showing of ineffective assistance, a determination by the court that there

are material issues of disputed fact that cannot be resolved by reference to the

existing record, and a determination that an evidentiary hearing is necessary to

resolve the claims for relief are required in order for a defendant to be granted

an evidentiary hearing. R. 3:22-10(b).

      In order to make a prima facie showing of ineffective assistance of

counsel, a defendant must establish two prongs:

                    First, the defendant must show that counsel's
            performance was deficient. This requires showing that
            counsel made errors so serious that counsel was not
            functioning as the “counsel” guaranteed the defendant
            by the Sixth Amendment. Second, the defendant must
            show that the deficient performance prejudiced the
            defense. This requires showing that counsel's errors
            were so serious as to deprive the defendant of a fair
            trial, a trial whose result is reliable. Unless a defendant
            makes both showings, it cannot be said that the
            conviction . . . resulted from a breakdown in the
            adversary process that renders the result unreliable.

            [Strickland, 466 U.S. at 687, adopted by State v. Fritz,
            105 N.J. 42, 52 (1987).]




                                                                          A-0963-18T4
                                         5
      Governed by these legal principles, we are satisfied defendant's argument

lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




                                                                           A-0963-18T4
                                        6
