                                NOT FOR PUBLICATION WITHOUT THE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-3841-17T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

KELLY N. FOWLER,

     Defendant-Appellant.
_________________________

                   Submitted September 25, 2019 - Decided October 4, 2019

                   Before Judges Koblitz and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No.12-02-0576.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew R. Burroughs, Designated Counsel,
                   on the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Kelly Fowler appeals from a February 22, 2018 order denying her

petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant

was convicted by a jury of second-degree arson, N.J.S.A. 2C:17-1(a)(1); third-

degree burglary, N.J.S.A. 2C:18-2(a)(1); and third-degree criminal mischief,

N.J.S.A. 2C:17-3(a). She was acquitted of attempted first-degree murder, N.J.S.A.

2C:5-1(a)(2) and N.J.S.A. 2C:11-3, and third-degree terroristic threats, N.J.S.A.

2C:12-3(b). Defendant was sentenced to an aggregate term of eight years in prison,

subject to an eighty-five percent period of parole ineligibility pursuant to the No

Early Release Act, N.J.S.A. 2C:42-7.2. We affirmed. State v. Fowler, No. A-3860-

13 (App. Div. May 10, 2016). Our Supreme Court denied certification. State v.

Fowler, 227 N.J. 365 (2016).

       Defendant raises the following issues on appeal:

            POINT I: THE PCR COURT ERRED WHEN IT
            FOUND    DEFENDANT   HAD    FAILED TO
            ESTABLISH A PRIMA FACIE CASE OF
            INEFFECTIVE ASSISTANCE OF COUNSEL.

            A. TRIAL COUNSEL WAS INEFFECTIVE WHEN
            HE FAILED TO REQUEST THE LESSER
            INCLUDED CHARGE OF THIRD-DEGREE ARSON.

            B. TRIAL COUNSEL'S FAILURE TO REQUEST AN
            INSTRUCTION      ON    CAUSATION     AND
            NEGLIGENCE PREJUDICED HIS CLIENT’S RIGHT
            TO A FAIR TRIAL.


                                                                          A-3841-17T1
                                        2
             C.   DEFENSE   COUNSEL    FAILED    TO
             EFFECTIVELY PRESENT TIME DISCREPANCY
             EVIDENCE     WHICH    WOULD      HAVE
             DEMONSTRATED IT WAS NOT FEASIBLE FOR
             DEFENDANT TO HAVE STARTED THE FIRE.

             D. DEFENSE COUNSEL FAILED TO CHALLENGE
             [T.M.] ABOUT HER FALSE AND MISLEADING
             GRAND JURY TESTIMONY.

             E. DEFENSE COUNSEL FAILED TO MOVE TO
             DISMISS THE INDICTMENT.

             F.  DEFENSE COUNSEL WAS INEFFECTIVE
             WHEN HE FAILED TO CHALLENGE THE
             VALIDITY OF THE ARREST WARRANT.

             G. TRIAL COUNSEL FAILED TO OBJECT TO THE
             ADMISSIBILITY OF CERTAIN VOICEMAIL
             RECORDINGS.

             H. APPELLATE COUNSEL WAS INEFFECTIVE
             BY FAILING TO ARGUE THE TRIAL JUDGE’S
             CONDUCT DENIED DEFENDANT A FAIR AND
             RELIABLE TRIAL.

             POINT II: AS THERE WERE GENUINE ISSUES OF
             MATERIAL      FACTS   IN   DISPUTE,   AN
             EVIDENTIARY HEARING WAS REQUIRED.

      Because defendant failed to demonstrate a prima facie case of ineffective

assistance of counsel necessitating a plenary hearing, we affirm.




                                                                       A-3841-17T1
                                         3
                                          I.

       We review a judge's denial of PCR without an evidentiary hearing de novo.

State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). A PCR petitioner must

establish the grounds for relief by a "preponderance of the credible evidence." State

v. Goodwin, 173 N.J. 583, 593 (2002). To sustain that burden, the "petitioner must

do more than make bald assertions that he [or she] was denied the effective

assistance of counsel." State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). The petitioner must

articulate specific facts that demonstrate counsel's constitutional deficiency. Ibid.

       To succeed on a claim for ineffective assistance of counsel, a defendant must

establish both prongs of the Strickland1 test. State v. Parker, 212 N.J. 269, 279-80

(2012).    Under the first prong, counsel's representation must be objectively

unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). Under the second prong, a

"reasonable probability [must exist] that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 583 (quoting Strickland,

466 U.S. at 694).

       In reviewing claims for ineffective assistance of counsel, courts apply a strong

presumption that defense counsel "rendered adequate assistance and made all


1
    Strickland v. Washington, 466 U.S. 668, 687 (1984).
                                                                              A-3841-17T1
                                           4
significant decisions in the exercise of reasonable professional judgment."

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will

not serve to ground a constitutional claim of inadequacy." Fritz, 105 N.J. at 54

(1987) (quoting State v. Williams, 39 N.J. 471, 489 (1963)); see also State v. Nash,

212 N.J. 518, 543 (2013) ("The test is not whether defense counsel could have done

better, but whether he [or she] met the constitutional threshold for effectiveness.").

      We incorporate our statement of facts from our decision on direct appeal.

Fowler, slip op. at 2-5. Defendant was convicted of starting an early morning fire

on the front porch of the home of her former girlfriend.

                                          II.

      Defendant takes issue with trial counsel's strategy to argue only her non-

involvement and not her lack of intent to cause injury. Defendant argues that

trial counsel's failure to seek a lesser guilty verdict on the basis of a lack of

intent to cause harm constituted ineffective assistance of counsel. However, "an

otherwise valid conviction will not be overturned merely because the defendant

is dissatisfied with his or her counsel's exercise of judgment during trial." State

v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293,

314-15 (2006)). Our Supreme Court explained that a reviewing court should

defer to counsel's strategically defensible and tactical decisions, "[e]ven if


                                                                              A-3841-17T1
                                          5
counsel made strategy miscalculations or trial mistakes." State v. Buonadonna,

122 N.J. 22, 42 (1991).

      On direct appeal, we rejected defendant's arguments that the jury

instructions were improper, discerning "no plain error in the trial court not sua

sponte instructing the jury concerning recklessness, negligence, or accidental

causes of the fire." Fowler, slip op. at 10. The PCR court described defense

counsel's decision not to request instructions for third-degree arson, causation,

and negligence as "an objectively reasonable strategy."         The PCR court

explained that under N.J.S.A. 2C:17-1 "[b]oth second- and third-degree [a]rson

charges contain an element of an intentional setting of fire. The difference is

whether the fire was set knowingly or intentionally to cause injury or it was set

and could have recklessly caused injury."

      During trial, the court discussed the lesser charge with counsel, but

defense counsel and the judge concluded that under the asserted defense, the

charge was not appropriate. The PCR court found "the issue of the consequence

of that fire being known as opposed to being recklessly disregarded [had] no

bearing on the defense of non-involvement." The PCR court stated:

            The fact that the trial counsel's strategy was ultimately
            unsuccessful is not dispositive and the Court's
            assessment of the trial counsel's performance will not
            be affected by the benefit of hindsight. Under the first

                                                                         A-3841-17T1
                                       6
            Strickland prong, it was objectively reasonable for the
            trial counsel to argue that Fowler was not involved in
            starting the fire. Indeed, in support of this strategy, the
            trial counsel called two alibi witnesses. Moreover, the
            alibi defense was inconsistent with Fowler's now
            proposed strategy.

      We agree with the PCR court that defense counsel's strategy was not

constitutionally defective.

                                       III.

      Defendant argues she was prejudiced by defense counsel's failure to

address the improbability that she started the fire when the fire was reported at

about the same time defendant was stopped by the police. On October 9, 2011,

the morning of the fire, a defense witness testified that defendant was at a

motorcycle race, which concluded at 4:30 a.m. Defendant's car was pulled over

by the police about two minutes away from the scene of the fire at 4:40 a.m.

The fire was reported at 4:42 a.m.

      Defendant asserts that trial counsel should have argued more effectively

that it was unlikely defendant started a fire at the victim's residence within the

ten minutes of leaving the motorcycle race and before being stopped by the

police.

      Defense counsel, however, did make that precise argument in his closing

argument, stating:

                                                                          A-3841-17T1
                                        7
            You remember [the investigator] stated this wasn't a
            smoldering fire, this wasn't a fire that smoldered. That
            was his determination. This fire was lit and caught up
            so you know it didn't smolder which would have given
            the time to say maybe the fire was smoldering, it gave
            her time. That's not what [the investigator] said.

            [The investigator] said the opposite. If he said, yeah,
            you know the fire smoldered for a while before it caught
            up, maybe that would be an issue but that's not what he
            testified to. He testified that the fire did not smolder,
            went right up.

            So how could they actually try and pin this case on Miss
            Fowler when the fire didn't smolder, went right up?

            The door bangs, [the victim] is calling at 4:42. Miss
            Fowler is stopped at 4:40 after being followed all that
            way . . . Couldn't have been her.

      Trial counsel thus discussed the time element.

                                       IV.

      Defendant argues defense "counsel's failure to confront [the victim] with

her false sworn testimony before the [g]rand [j]ury was inexplicable." When the

victim was asked before the grand jury about when and what kind of voicemails

defendant left her, the prosecutor elicited the following testimony:

            Q: And in these messages, did she -- well, did she tell
            you a lot of things, including that she loves you and also
            that she was going to get you?

            A: Yes.


                                                                         A-3841-17T1
                                        8
            Q: And did she threaten to kill you?

            A: Yes.

            Q: And in those messages, -- and was this in the first
            week or so of -- let me get the dates right here. I don't
            want to get them wrong --between the 7th of October
            and the 9th of October of last year?

            A: Yes.

            Q: And when Ms. Fowler left messages threatening to
            kill you, did you believe her?

            A: Yes.

      Although defense counsel did not directly confront the victim about her

misleading testimony to the grand jury concerning the source of the October 7,

2011 voicemail she received, defense counsel did clarify for the jury that the

voicemail was not from defendant, but rather an unidentified male.

            Q: I represent to you that the message on October 7th
            was a male. The message that you provided was from a
            male, that's not Miss Fowler, correct?

            A: The male referring to Miss Fowler, yes.

            Q: That's not Miss Fowler correct?

            A: That message was not Miss Fowler. It was a male
            referring to her.

            Q: On October 7th, 8th, or 9th, you have no telephone
            message from Miss Fowler, correct?


                                                                        A-3841-17T1
                                       9
            A: Correct.

Thus, defense counsel did not fail to cross-examine the victim about who left

the voicemail message on October 7. The fact that counsel failed to confront

her with her misleading testimony before the grand jury was not significant.

                                        V.

      In a related argument, defendant claims trial counsel should have moved

to dismiss the indictment pretrial because the State failed to present exculpatory

evidence to the grand jury regarding the male voice on the threatening voicemail

the victim received on October 7, 2011.         Also, defendant argues the fire

investigator's grand jury testimony that the fire smoldered coupled with his trial

testimony that it did not smolder before at trial mislead the grand jury.

      Pursuant to Rule 3:10-2(c), the State has the opportunity to cure any

irregularity or defect in the grand jury process any time before trial. State v.

Simon, 421 N.J. Super. 547, 551 (App. Div. 2011). When an indictment is

dismissed, the State has the right to bring a new indictment. Ibid. (citing State

v. Womack, 145 N.J. 576, 590 (1996)).

      As correctly noted by the State, ample evidence existed to sustain an

indictment. The victim testified to the following at trial:




                                                                            A-3841-17T1
                                       10
            Q: Is it fair to say that you received messages from the
            defendant of all sorts like threatening messages I think
            you said?

            A: Yes.

            Q: Apologetic messages and messages that said what?

            A: "I am going to get you." She expressed her anger.
            She would just make comment like "I am not going to
            stop until you pay. I am on everything, smoking." There
            is just a number -- I can't remember them all verbatim.

            Q: Did you save them all?

            A: I believe so -- no, I didn't save every single message.

            Q: When did you start saving them?

            A: In August.

            Q: And between August and what date did you save
            them until approximately?

            A: October.

      The fact that the victim received a threatening voicemail from an

unidentified male does not negate that defendant also left threatening

voicemails. As to the investigator's testimony about the amount of time the fire

burned, the length of time the fire smoldered would not negate probable cause.

Even if defense counsel had successfully moved to dismiss the indictment,




                                                                         A-3841-17T1
                                       11
sufficient probable cause existed for the State to re-present the matter to a new

grand jury.

                                      VI.

      Defendant argues defense counsel should have challenged her arrest

warrant because it was "based on hearsay[] and deliberate falsehoods intrinsic

to the facts of the alleged offense in question" and had defense counsel objected

to its validity, "it was likely the court would have denied an arrest warrant for

making terroristic threats." Our Supreme Court established that "for an arrest[]

'there must be probable cause to believe that a crime has been committed and

that the person sought to be arrested committed the offense.'" State v. Brown,

205 N.J. 133, 144 (2011) (quoting State v. Chippero, 201 N.J. 14, 28 (2009)).

      "[T]he appropriate remedy for an improper arrest is suppression of any

evidence that may have been seized in connection with that arrest." State v.

Egles, 308 N.J. Super. 124, 131 (App. Div. 1998).            Defendant fails to

demonstrate how her purportedly unlawful arrest affected her conviction. See

Brown, 205 N.J. at 137 (discussing the validity of defendant's warrantless arrest

in light of her post-arrest statements). Trial counsel was not ineffective by

failing to challenge the warrant.




                                                                         A-3841-17T1
                                      12
                                       VII.

   Defendant argues defense counsel should have requested a pre-trial hearing

to suppress the voicemails introduced by the State because they were edited and

altered. Pursuant to State v. Driver, 38 N.J. 255, 287 (1962), sound recordings

are admissible if the speaker is identified and "(1) the device was capable of

taking the conversation or statement, (2) its operator was competent; (3) the

recording is authentic and correct; (4) no changes, additions or deletions have

been made, and (5) in instances of alleged confessions, that the statements were

elicited voluntarily and without any inducement."

      The victim used a hand-held device to record the messages from her phone

and testified she did not alter the recordings in any way. She explained that

some of the dates were inadvertently missing from the recordings. The Driver

standards were met and defense counsel had no basis to suppress the recordings.

                                      VIII.

      Defendant also argues appellate counsel was ineffective when he failed to

argue that the trial judge denied defendant due process "by acting as a prosecutor

[and] by inserting her own opinion in the case." The standard of review for

assessing ineffective assistance of appellate counsel is the same Strickland two-

prong test that applies to ineffective assistance of trial counsel claims. State v.


                                                                          A-3841-17T1
                                       13
Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007). Appellate counsel is not

required to bring all non-frivolous claims or claims that are "legally unworthy

of pursuit." State v. Webster, 187 N.J. 254, 256 (2006); see also State v. O'Neil,

219 N.J. 598, 613 (2014) (noting "appellate counsel does not have an obligation

'to advocate ad infinitum'") (internal citation omitted).

      Defendant's argument regarding the bias of the trial judge is meritless. In

defendant's first example regarding the date of the complaint, the trial judge

explained on the record that she misread the document and defense counsel

stated the correct date. In the second example, rather than questioning defense

counsel's knowledge about the facts, the trial judge sought clarification of the

timeline. In the third example, the colloquy occurred outside the presence of

the jury. Appellate counsel had no obligation to bring this claim.

                                       VIX.

      Finally, defendant argues that because "there was a genuine dispute of

material facts, she was entitled to an evidentiary hearing on her various claims." A

PCR judge has the discretion to grant such a hearing. State v. Jones, 219 N.J. 298,

311 (2014). We review this decision under the abuse of discretion standard. State

v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). A defendant is entitled to

an evidentiary hearing only when (1) he or she sets forth a prima facie case of


                                                                           A-3841-17T1
                                        14
ineffective assistance of counsel; (2) the court determines "there are material issues

of disputed fact that cannot be resolved by reference to the existing record"; and (3)

the court determines "that an evidentiary hearing is necessary to resolve the claims

for relief." R. 3:22-10(b). Because defendant failed to establish a prima facie case

for ineffective assistance of counsel, an evidentiary hearing was not warranted.

      Affirmed.




                                                                             A-3841-17T1
                                         15
