                        NOT FOR PUBLICATION WITHOUT THE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-2692-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FEDELE GODUTO a/k/a
FREDERICK DEMAIO, FREDRICK GODUTO,
FEDELE MODUTO and JOHN FOSTER.

        Defendant-Appellant.

__________________________________

              Submitted March 15, 2017 – Decided August 4, 2017

              Before Judges Fuentes and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Morris County,
              Indictment No. 09-02-0203.

              Joseph E. Krakora, Public Defender, attorney
              for   appellant  (Alison   Stanton  Perrone,
              Designated Counsel, on the brief).

              Fredric M. Knapp, Morris County Prosecutor,
              attorney for respondent (Erin S. Wisloff,
              Supervising     Assistant    Prosecutor,    of
              counsel;    Paula   C.    Jordano,   Assistant
              Prosecutor, on the brief).

PER CURIAM
       Defendant appeals from the trial court's November 12, 2015

order    denying    his     petition      for     post-conviction        relief    (PCR)

without granting an evidentiary hearing.                   We affirm.

       On November 30, 2009, defendant entered a negotiated guilty

plea to count one of Morris County Indictment No. 09-02-0203,

charging first-degree attempted murder, N.J.S.A. 2C:5-1(a) and

N.J.S.A.     2C:11-3(a)(1),         and   a     related    motor      vehicle   summons

charging driving while license suspended, N.J.S.A. 39:3-40.                             In

exchange, the State agreed to recommend the dismissal of the

remaining ten counts of the indictment as well as the dismissal

of Morris County Indictment No. 08-12-1404 in its entirety and

the dismissal of ten related motor vehicle summonses.                        The State

also agreed to recommend a twelve-year term of imprisonment,

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

on the attempted murder charge, to run consecutive to a sentence

defendant was already serving, and the mandatory minimum fines

and period of driver's license suspension on the motor vehicle

summons.

       The charges stemmed from defendant's purposeful attempt to

strike   a   police       officer    with       his    vehicle   in    the   course     of

eluding police in a high-speed chase to avoid a motor vehicle

stop    following     a    suspected      drug        transaction.      Although      the

officer jumped out of the way to avoid impact with defendant's

                                            2                                   A-2692-15T3
vehicle, he still sustained injuries as a result.                         During his

plea allocution, defendant acknowledged that hitting the officer

with   his   vehicle   could   have   caused      the     officer's       death   and

defendant admitted being aware that his driver's license was

suspended at the time.

       On February 5, 2010, defendant was sentenced in accordance

with the terms of the plea agreement.             In imposing sentence, the

sentencing court found the following aggravating factors: nature

and circumstances of offense, N.J.S.A. 2C:44-1(a)(1);1 gravity

and seriousness of harm inflicted on victim, N.J.S.A. 2C:44-

1(a)(2); risk of re-offending, N.J.S.A. 2C:44-1(a)(3); extent of

prior criminal record, N.J.S.A. 2C:44-1(a)(6); offense committed

against   police   officer,    N.J.S.A.     2C:44-1(a)(8);          and    need   for

deterrence, N.J.S.A. 2C:44-1(a)(9).            The court also found as a

mitigating    factor    that   imprisonment       would    entail    hardship       to

defendant, N.J.S.A. 2C:44-1(b)(11).

       Defendant filed an appeal challenging his sentence only.

On   December   15,    2010,   we   heard   the    appeal    on     an     excessive

1
  Although the judgment of conviction did not record aggravating
factor one, the sentencing court found that factor in his oral
pronouncement of defendant's sentence.   See State v. Pohlabel,
40 N.J. Super. 416, 423 (App. Div. 1956) (holding that "where
there is a conflict between the oral sentence and the written
commitment," the oral sentence "will control if clearly stated
and adequately shown, since it is the true source of the
sentence[.]").


                                      3                                     A-2692-15T3
sentence oral argument (ESOA) calendar.                        See R. 2:9-11.             During

oral argument, defendant was represented by a staff attorney

from   the     Office         of    the    Public    Defender.         Appellate         counsel

advised the ESOA panel that when the case was prosecuted in

Morris County, he was employed by the Morris County Prosecutor's

Office       as       the      "[E]xecutive          [A]ssistant"           and        exercised

supervisory        authority         over    "plea     approval       for    all       cases[.]"

However, he represented to the panel that he had "no knowledge"

or "involvement in this case[,]" and was satisfied that there

was no conflict.

       Appellate counsel then argued that defendant's sentence was

excessive because the sentencing court did not properly consider

defendant's           numerous       medical        ailments     as     a     hardship        and

improperly considered aggravating factors one and two.                                 Further,

appellate      counsel         argued       that    the   sentencing        court       did   not

articulate        a     reason       for     imposing      a    consecutive            sentence.

Following         the       State's       concession      on     the        impropriety         of

considering aggravating factor two, the case was remanded by the

ESOA     panel          for        resentencing       "without         consideration            of

aggravating factor two[.]"

       While      preparing           for    the     resentence,        the       prosecuting

attorney notified us that appellate counsel should have been

disqualified          from     representing         defendant    because          he    approved

                                               4                                        A-2692-15T3
defendant's plea offer in his capacity as Executive Assistant

Prosecutor of the Morris County Prosecutor's Office.2             We advised

the parties that "[a]s an appellate court, we are not in a

position    to    make   any    determination    concerning       [appellate

counsel's role] or participation in the decisions leading up to

the   original    plea   offer."    Although    we    directed    that    "the

possible conflict of interest . . . be addressed before the

trial court at the . . . resentencing[,]" the issue was neither

raised nor addressed.

      At   the   resentencing   hearing   conducted    on   May   27,    2011,

defendant was represented by his original plea counsel and the

same sentence was imposed.          Although the court did not find

aggravating factors one or two, the court determined that the

remaining aggravating factors "significantly, and substantially,

and clearly outweigh[ed]" the sole mitigating factor.             The court

also imposed a consecutive sentence after analyzing the factors

articulated in State v. Yarbough, 100 N.J. 627, 643-44 (1985),

cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308

(1986).




2
  The prosecuting attorney attributed the oversight to the volume
of cases handled by appellate counsel in his supervisory
capacity rather than a lack of good faith on his part.


                                    5                               A-2692-15T3
       On February 10, 2015, defendant filed a pro se PCR petition

alleging "[i]neffective assistance of [appellate] counsel"3 based

on    a   "conflict   of    interest"   and   an   "excessive   sentence"

predicated on his "ongoing medical issues[.]"             Defendant was

assigned counsel who subsequently filed an amended petition and

supporting brief along with PCR counsel's certification dated

June 12, 2015, and defendant's supplemental certification dated

September 21, 2015.        In his brief, defendant argued that he was

entitled to PCR because he "was represented on appeal by an

attorney who was under an impermissible conflict of interest"

pursuant to R.P.C. 1.7,4 1.95 and 1.11,6 and was thereby "per se

ineffective."



3
    Appellate counsel died in August 2015 of health-related issues.
4
  R.P.C. 1.7 provides in pertinent part that "a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists
if . . . there is a significant risk that the representation of
one . . . client[] will be materially limited by the lawyer's
responsibilities to . . . a former client" unless "each affected
client gives informed consent . . . provided, however, that a
public entity cannot consent . . . ;" "the lawyer reasonably
believes that the lawyer will be able to provide competent and
diligent   representation  to   each   affected  client;"   "the
representation   is   not   prohibited   by   law;"   and   "the
representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal." R.P.C.
1.7(a)(2); R.P.C. 1.7(b).



                                    6                            A-2692-15T3
      Defendant        argued     further       that     appellate      counsel's

performance was deficient because he failed to confer with him

during his representation to allow defendant to participate in

his   defense     in     order    to   make      a     thorough   and   complete

presentation      to    the     ESOA   panel.          Instead,   according      to

defendant, appellate counsel made a "vacuous argument" to the


(continued)
5
  R.P.C. 1.9, addressing conflicts of interest with respect to
former clients, provides that a lawyer who has represented a
client may not later "represent another client in the same or a
substantially related matter in which that client's interests
are materially adverse to the interests of the former client
unless the former client gives informed consent confirmed in
writing." R.P.C. 1.9(a). Further, subsection (b) provides "[a]
lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the
lawyer formerly was associated had previously represented a
client, (1) whose interests are materially adverse to that
person; and (2) about whom the lawyer, while at the former firm,
had personally acquired information protected by RPC 1.6 and RPC
1.9(c) that is material to the matter unless the former client
gives informed consent, confirmed in writing." R.P.C. 1.9(b).
6
  R.P.C. 1.11(a) provides "[e]xcept as law may otherwise permit,
and subject to [R.P.C.] 1.9, a lawyer who formerly has served as
a government lawyer or public officer or employee of the
government shall not represent a private client in connection
with a matter: (1) in which the lawyer participated personally
and substantially as a public officer or employee, or (2) for
which the lawyer had substantial responsibility as a public
officer or employee; or (3) when the interests of the private
party are materially adverse to the appropriate government
agency, provided, however, that the application of this
provision shall be limited to a period of six months immediately
following the termination of the attorney's service as a
government lawyer or public officer." R.P.C. 1.11(a)(1)-(3).



                                       7                                 A-2692-15T3
ESOA panel.      Defendant also argued that his sentence constituted

cruel and unusual punishment given the erroneous analysis of the

applicable "aggravating and mitigating factors" and the dearth

of reasons to support the imposition of a consecutive sentence.

      In his supporting certification, defendant averred that he

was   unaware    of   appellate   counsel's     conflict   of   interest     and

would have objected had he known.              Defendant certified further

that appellate counsel did not confer or communicate with him to

discuss   what    issues   to   present   on    appeal   or   to    assess   his

deteriorating medical condition.7

      The PCR court conducted oral argument on October 27, 2015,

and denied defendant's application from the bench.                 In a written

statement of reasons filed November 12, 2015, the                    PCR court

determined that defendant was procedurally barred because he did

not raise these arguments at the re-sentencing hearing or on

direct appeal from the re-sentence as required by Rule 3:22-4.


7
  Defendant also asserted that he was entitled to a reduction of
sentence pursuant to Rule 3:21-10 and certified that he suffered
from a number of medical ailments, including hypertension, COPD,
hypermetropia, presbyopia, diabetes mellitus (type 2), hepatitis
C,   and  osteoarthritis.     He   also  certified   that  while
incarcerated, he had suffered heart and breathing attacks and
had received a catheterization. According to defendant, he was
informed that he would require a heart transplant and a lung
transplant, neither of which were available to him in the prison
system. However, PCR counsel withdrew this argument pending the
submission of an expert report.


                                     8                                 A-2692-15T3
The court found further that precluding defendant's claim would

not result in a fundamental injustice or otherwise "run afoul of

[Rule] 3:22-4" since defendant's attorney was aware at the re-

sentencing hearing of appellate counsel's conflict of interest,

having been copied on the prosecuting attorney's notification to

the ESOA panel as well as the ESOA panel's response.

      Nonetheless, the court considered substantively defendant's

claims   that   his     "conflicted       attorney      [was]     presumed       to    be

ineffective"     and     that     "a     lack     of     communication         between

[d]efendant     and     his   appellate       counsel"      was    indicative          of

deficient     performance.        The     court    determined       that    although

"there was [a] clear conflict of interest . . . . defendant has

not demonstrated any prejudice from the aforementioned conflict

or inaction, as is required under the law."                     On the contrary,

the   court     found     that        appellate    counsel        "had     advocated

diligently,     aggressively,           and     effectively        for     .      .     .

[d]efendant[,]" resulting in a remand for resentencing which was

a favorable outcome for defendant.                     The court    also rejected

defendant's     challenges       to     his   sentence      because      they       were

adequately addressed at the resentencing.

      This appeal followed.           On appeal, defendant raises a single

argument for our consideration:

            POINT ONE

                                         9                                     A-2692-15T3
            DEFENDANT WAS DEPRIVED OF HIS RIGHT TO THE
            EFFECTIVE ASSISTANCE OF COUNSEL.   THE PCR
            COURT'S DECISION DENYING HIS PETITION FOR
            POST-CONVICTION RELIEF MUST THEREFORE BE
            REVERSED.

For the reasons set forth below, we are unpersuaded by this

argument and affirm.

    Generally, we review the PCR court's findings of fact under

a clear error standard, and conclusions of law under a de novo

standard.    State v. Harris, 181 N.J. 391, 420-21 (2004), cert.

denied, 545 U.S. 1145, 125       S. Ct. 2973, 162         L. Ed. 2d 898

(2005).     However,   where,   as    in   this   case,   "no   evidentiary

hearing has been held, we 'may exercise de novo review over the

factual inferences drawn from the documentary record by the [PCR

judge]."    State v. Reevey, 417 N.J. Super. 134, 146-47 (App.

Div. 2010) (alteration in original) (quoting Harris, supra, 181

N.J. at 421), certif. denied, 206 N.J. 64 (2011).

    "A defendant shall be entitled to an evidentiary hearing

only upon the establishment of a prima facie case in support of

post-conviction relief[.]"      R. 3:22-10(b).      "To establish such a

prima facie case, the defendant must demonstrate a reasonable

likelihood that his or her claim will ultimately succeed on the

merits."    State v. Marshall, 148 N.J. 89, 158, cert. denied, 522

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


                                 10                                A-2692-15T3
must    view       the    facts     "'in     the     light     most       favorable      to

defendant.'"        Ibid.    (citation omitted).

       To establish a prima facie case of ineffective assistance

of counsel, a defendant must satisfy the two-pronged test of

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed.    2d    674   (1984),    adopted      in    State   v.   Fritz,       105   N.J.    42

(1987).       "The defendant must demonstrate first that counsel's

performance was deficient, i.e., that 'counsel made errors so

serious      that     counsel     was      not     functioning       as    the    counsel

guaranteed the defendant by the Sixth Amendment.'"                               State v.

Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).                                  The

defendant      must      overcome    a     "strong    presumption         that    counsel

rendered reasonable professional assistance."                    Ibid.

       Second,      "a      defendant      must      also     establish      that       the

ineffectiveness of his attorney prejudiced his defense.                                'The

defendant must show that there is a reasonable probability that,

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

proceeding would have been different.'"                     Id. at 279-80 (quoting

Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.

Ed. 2d at 698).          "These standards apply to claims of ineffective

assistance at both the trial level and on appeal."                               State v.

Guzman, 313 N.J. Super. 363, 374 (App. Div. 1998) (citing State

                                           11                                    A-2692-15T3
v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif.

denied, 107 N.J. 642 (1987)).

       Defendant argues that the PCR court should have found a per

se    conflict     and    presumed     both    ineffectiveness       and   prejudice

based on appellate counsel's conflict of interest.                         Defendant

argues further that even if prejudice is not presumed, appellate

counsel's    "lackluster        representation       of   defendant        on     appeal

satisfies the prejudice prong."                 In support, defendant asserts

that    appellate        counsel's   arguments     were   "cursory"        and     "gave

short     shrift     to    defendant's        significant,    documented          health

conditions[.]"       We disagree.

       When "analyzing whether a conflict of interest has deprived

a defendant of his state constitutional right to the effective

assistance of counsel," we "adhere[] to a two-tiered approach."

State v. Cottle, 194 N.J. 449, 467 (2008).                   "In those cases in

which we have found a per se conflict, prejudice is presumed in

the absence of a valid waiver, and the reversal of a conviction

is mandated."        Ibid.      See State v. Bellucci, 81 N.J. 531, 543

(1980).

       However,     courts     "have    limited     the   per   se    conflict          on

constitutional grounds to cases in which 'a private attorney, or

any     lawyer     associated    with     that    attorney,     is    involved          in

simultaneous dual representations of codefendants,'" or "both he

                                        12                                      A-2692-15T3
and his client are simultaneously under indictment in the same

county and being prosecuted by the same prosecutor's office."

Cottle, supra, 194 N.J. at 452, 467 (citation omitted).                          "In all

other cases, 'the potential or actual conflict of interest must

be     evaluated     and,     if     significant,       a     great      likelihood      of

prejudice must be shown in that particular case to establish

constitutionally defective representation of counsel.'"                           Id. at

467-68 (citation omitted).

       Clearly, this case does not fall within the two limited

circumstances that generate a per se conflict.                           Moreover, this

case    is    a     far    cry     from   Cottle,       where      the     attorney     was

"contemporaneously under indictment in the same county as his

client, and being prosecuted by the same prosecutor's office[.]"

Id. at 473.          "In such circumstances, it is not difficult to

imagine      that   [the    attorney]     might     not     have    had    the   zeal    to

engage in a bruising battle with the very prosecutor's office

that would be weighing his fate."                   Id. at 464-65.            Thus, the

attorney had "a reason to curry some personal favor with the

prosecutor's office at the expense of his client."                          Id. at 464.

That     created     "a     'significant        risk'       that    [the     attorney's]

representation        of    defendant     was    'materially        limited'     by     his

'personal interest[.]'"             Id. at 466 (quoting R.P.C. 1.7(a)(2)).

       By contrast, as the PCR court noted here:

                                          13                                     A-2692-15T3
                  It's hard for me to       imagine a more
             aggressive argument that .     . . could have
             been made or articulated on    . . . behalf of
             [defendant] than the ones      that [appellate
             counsel] made  . . . .

             I think he did a pretty good job.

                  He was not intimidated at all . . . . I
             gather [appellate counsel] was not a timid
             or recalcitrant advocate, no matter who he
             was representing.

                  He was not a . . . wallflower . . . or
             somebody who faded into the wallpaper.   And
             [appellate counsel] is, I would use the . .
             . expression "in rare form" except that this
             is probably, I gather, by what little I know
             of [appellate counsel's] reputation, not
             rare   form   for  [appellate   counsel]  to
             articulate himself in this fashion, which is
             probably a good thing for his clients.

                 . . . .

             [Appellate   counsel]   did    a   fine  and
             professional job on behalf of [defendant].
             And ultimately the matter was remanded back
             to the . . . trial court for sentencing.

In   these   circumstances,   while   we   acknowledge   a     significant

conflict of interest, defendant has failed to demonstrate the

"great   likelihood     of    prejudice"    required     "to    establish

constitutionally defective representation of counsel."             Cottle,

supra, 194 N.J. at 467-68.

      In any event, we agree with the PCR court that Rule 3:22-

4(a) bars defendant's argument because it could have been raised

in defendant's resentencing hearing or in a direct appeal from

                                 14                               A-2692-15T3
his   resentence.       A   PCR   petition       is   not   "a    substitute    for

appeal."     R. 3:22-3.       A defendant "is generally barred from

presenting a claim on PCR that could have been raised . . . on

direct appeal."      State v. Nash, 212 N.J. 518, 546 (2013) (citing

R. 3:22-4(a)).       The bar does not apply if "(1) . . . the ground

for relief not previously asserted could not reasonably have

been raised in any prior proceeding; or (2) [the] enforcement of

the   bar   to   preclude    claims,        including   one      for   ineffective

assistance of counsel, would result in fundamental injustice[.]"

R. 3:22-4(a).

      Here, defendant reasonably could have raised this issue at

his resentencing or in a direct appeal from his resentence.

Moreover,    "[t]o     succeed    on        a   fundamental-injustice       claim"

defendant "must make some showing that an error or violation

played a role in the determination of guilt."                    Nash, supra, 212

N.J. at 547 (quotation and citation omitted); see also R. 3:22-

4(a)(2).    Here, defendant has made no such showing.

      Affirmed.




                                       15                                 A-2692-15T3
