                                NOT FOR PUBLICATION WITHOUT THE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-1217-17T3


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JESUS ATURO COLON,

     Defendant-Appellant.
______________________________

                    Submitted November 14, 2018 – Decided December 24, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 06-11-1099.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Kevin G. Byrnes, Designated Counsel, on
                    the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (James C. Brady,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an order entered by the Law Division on June 23,

2017, which denied his petition for post-conviction relief (PCR). We reverse

and remand for further proceedings.

                                        I.

      A Union County grand jury charged defendant with second-degree eluding

a law enforcement officer, N.J.S.A. 2C:29-2(b) (count one); second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(6) (count two); and third-degree

joyriding, N.J.S.A. 2C:20-10(c) (count three). The trial court granted the State's

motion to dismiss count three, and the matter proceeded to trial on the other

counts.

      At the trial, the State presented evidence that shortly before midnight on

September 1, 2006, Officer Paolo Fidalgo and another officer of the Elizabeth

Police Department were on patrol in the City of Elizabeth in a marked police

vehicle. The officers stopped at an intersection and observed a motor vehicle

cross the intersection at a high rate of speed. Fidalgo said the driver was

possibly a "Hispanic male with facial hair."

      Fidalgo and his partner pursued the vehicle and activated the lights on

their patrol vehicle.   The car they were pursuing ran a red light.       Fidalgo

estimated the vehicle had been traveling at fifty miles per hour in a zone


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                                        2
allowing vehicles to travel twenty-five miles per hour. After running the red

light, the driver of the speeding car apparently lost control and the car went into

a ditch.

      Fidalgo and his partner exited the police vehicle. They noticed smoke or

fire coming from beneath the disabled vehicle. Fidalgo stated that there were

three persons in the vehicle. The officers drew them away to safety. Fidalgo

identified defendant as the person who had been in the driver's seat. He stated

that defendant was the only occupant who had facial hair. When the officers

saw defendant, he was over the area between the driver's seat and the passenger's

seat. His legs were in the driver's seat.

      Luis Benitez was a passenger in the car and he testified on defendant's

behalf. Benitez stated that he had known defendant since they were "kids" and

he described his relationship to defendant as being "like family." Benitez said

defendant was not driving the car during the chase.

      Benitez also testified that a juvenile, whose name he did not know, had

been driving. Benitez was in the rear seat, behind the driver, and defendant was

on the passenger side. Benitez said the juvenile drove through the red light as

the police chased them. Benitez's leg was injured when the car crashed.




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                                            3
      The jury found defendant guilty on both counts. The trial judge sentenced

defendant on count two (aggravated assault) to ten years of incarceration, with

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

Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent, ten-

year term on count one (eluding).

      Defendant appealed from the judgment of conviction dated July 13, 2007.

He raised the following arguments:

            1. Defendant's Right to Due Process of Law as
            Guaranteed by the Fourteenth Amendment to the
            United States Constitution and Art. 1[,] Par. 1 of the
            New Jersey Constitution was violated by the
            Prosecutor's Misconduct. [Not Raised Below]

                  a. The Prosecutor's summation expressing his
            belief that [Officer] Fidalgo testified credibly
            substantially prejudiced Defendant's fundamental right
            to have the jury fairly evaluate the merits of his defense.

                  b. The Prosecutor's summation implicitly
            expressing his belief that Defendant's Witness was not
            credible substantially prejudiced [D]efendant's
            fundamental right to have the jury fairly evaluate the
            merits of his defense.

            2. Because The Jury Was Permitted To Infer That
            Defendant's Conduct Created A "Risk Of Death Or
            Injury" If It Determined That His Conduct Violated
            Any of The Motor Vehicle Offenses Set Forth in
            Chapter 4 of Title 39, And Such Risk Is An Element Of
            The Second Degree Crime of Eluding, The Trial Court
            Committed Reversible Error When It Failed To Define

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                                        4
             And Delimit The Underlying Motor Vehicle Offenses.
             [Not Raised Below]

We affirmed defendant's conviction. State v. Colon, No. A-6370-06 (App. Div.

April 14, 2009).

      On March 23, 2012, defendant filed a pro se PCR petition in the trial court.

He alleged he was denied the effective assistance of counsel, and that the trial

court erred in its assessment of the aggravating and mitigating factors at

sentencing. The PCR court appointed counsel to represent defendant, and PCR

counsel filed a brief arguing that trial counsel was deficient because he failed to

properly investigate and prepare the case.

      PCR counsel asserted that after the petition was filed, Jose Rentas, the

juvenile involved in the incident, had been contacted. Rentas said he had been

driving the car during the police chase, and defendant was a passenger in the

car. PCR counsel asserted that defendant's trial attorney did not contact Rentas.

      PCR counsel claimed that immediately after he exited the car, Rentas told

the officers he had been driving the car. He asserted that Rentas would have

testified at trial that he was the driver of the vehicle involved in the incident, but

defense counsel never asked him to testify.

      In support of his petition, PCR counsel submitted a memorandum from

Sergeant Deborah Baum to an assistant prosecutor in which Baum stated that on

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                                          5
November 21, 2006, she was assigned to take a statement from Rentas regarding

the matter. Rentas was seventeen years old at that time, and he said he wanted

his mother to be present for the interview. Rentas told Baum he was driving the

car involved in the September 1, 2006 chase.

       Baum brought Rentas's mother into the room with Rentas.             Baum

explained that Rentas would be providing a videotaped statement and she

advised Rentas of his Miranda rights.1 Rentas told Baum he wanted an attorney,

and Baum terminated the interview. Rentas's mother inquired as to how she

could contact a public defender.

       She asked Baum if her son could return and give a statement after he spoke

with an attorney. Baum replied that was possible. Rentas's mother also asked

if her son could be charged if he admitted committing an offense. Baum told

her that anyone who gave a statement in which he admitted committing an

offense could be charged.

       The PCR judge heard oral argument from counsel and placed his decision

on the record. The judge found that defendant's claim of ineffective assistance

was not barred by Rule 3:22-4, but defendant had not presented a prima facie

claim of ineffective assistance and an evidentiary hearing was not required. The


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-1217-17T3
                                        6
judge found that defense counsel's investigation and strategic decisions were not

deficient. The judge determined that defendant's attorney made "an informed

decision" not to call Rentas as a witness at trial, and once that decision was

made, there was little to be gained by interviewing Rentas. The judge noted that

defense counsel could introduce Rentas's off-the-record statements through

other evidence and witnesses in a manner that would be more credible.

      The PCR judge also observed that defense counsel could reasonably have

decided it was highly unlikely Rentas would testify at trial because, while he

made a statement to the police concerning the incident, he refused to provide a

videotaped statement inculpating himself. The judge noted that defense counsel

could have presented Rentas's statement through Fidalgo's testimony.

      In addition, the judge found that defendant had not shown he was

prejudiced by counsel's failure to interview or call Rentas as a witness. The

judge stated that defendant had merely shown that counsel's alleged errors had

"some conceivable effect on the trial." The judge found there was no guarantee

Rentas would have waived his Fifth Amendment right against self-incrimination

and testify at trial. The judge determined that defendant had not shown a

reasonable probability the result would have been different if Rentas had been

called as a witness.


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                                       7
                                        II.

        Defendant appealed and we reversed the order denying PCR. State v.

Colon, No. A-5125-12 (App. Div. Nov. 4, 2015) (slip op. at 13). We held that

the PCR judge erred by resolving defendant's claim of ineffective assistance of

counsel without conducting an evidentiary hearing. Id. at 10. We noted that

there was no evidence to support the judge's finding that defendant's trial

attorney made a strategic decision not to call Rentas as a witness at trial. Ibid.

We stated that we could not discern whether counsel made a specific strategic

decision that Rentas would not testify, and if he did, the basis for that decision.

Ibid.

        We also stated that the PCR judge had assumed it was unlikely that Rentas

would inculpate himself at trial. Ibid. We pointed out, however, that in an

affidavit submitted to the PCR court, defendant's PCR counsel asserted that he

had spoken with Rentas and Rentas told him he was the driver of the car involved

in the chase and he would have testified to that fact if he had been called as a

witness at trial. Id. at 10-11.

        We observed that if that statement is correct, it would "cast an entirely

different light" on counsel's decision not to call or interview Rentas before trial.

Id. at 11. We stated, "[i]f credible, Rentas's statement suggests that counsel's


                                                                            A-1217-17T3
                                         8
decision may have fallen outside the wide range of reasonably competent

counsel." Ibid.

        We also stated that testimony by defendant's trial attorney and Rentas may

warrant reconsideration of the PCR court's finding that it was not reasonably

probable the result of the trial could have been different if Rentas had been

called at trial and testified that he was the driver of the vehicle involved in the

chase. Ibid. We noted that Benitez had testified at trial that a juvenile had been

driving the car, but he did not know the juvenile's name. Ibid.

        We also noted that the evidence showed that when Fidalgo approached the

vehicle after the crash, he determined that defendant had been the driver. Ibid.

Fidalgo observed defendant "crunched over" on the driver's side. Ibid. Benitez

and the juvenile were outside the car. Ibid. On cross-examination, Fidalgo

conceded that the juvenile, whom he identified, was a suspect. Id. at 12.

        We stated that Fidalgo did not testify that Rentas admitted he had been

driving the car at the time of the incident. Ibid. We noted, however that Fidalgo

testified before the grand jury that Rentas claimed he was the driver, and Benitez

testified at trial that a juvenile had been driving the car at the time of the chase.

Ibid.




                                                                             A-1217-17T3
                                         9
      We stated that based on this record, we could not determine "that it was

not reasonably probable the result of the trial would have been different if Rentas

had testified he was the driver." Ibid. We concluded that the testimony of

defense counsel and Rentas was "critical to resolving" the claim of ineffective

assistance of counsel. Ibid. We remanded the matter to the PCR court for an

evidentiary hearing on this claim. Ibid.

      We also noted that defendant had raised other issues in his pro se petition.

Ibid. He claimed his trial attorney was ineffective because he failed to: (1) make

a timely objection to the prosecutor's remarks; (2) object to the jury charge; (3)

object or ask the judge to charge the jury on his decision not to testify; (4) object

to the trial court's supplemental instruction; (5) object to the trial court's

instruction that one of Benitez's statements was hearsay; and (6) interview other

potential witnesses. Id. at 12-13. Defendant also had claimed that the trial court

erred at sentencing in its assessment of the aggravating and mitigating factors.

Id. at 13.

      We observed that the PCR judge had not addressed these claims. Ibid.

We stated that on remand, the PCR court should determine whether the claims

were barred by Rule 3:22-4 or Rule 3:22-5. Ibid. The judge should address the

merits of the claims not subject to these procedural bars. Ibid.


                                                                             A-1217-17T3
                                        10
                                        III.

      The PCR court conducted the evidentiary hearing on May 26, 2017.

Defendant's trial attorney testified. He stated that he is a sole practitioner, who

has a general practice. He has been a criminal defense attorney since 1990, and

he has handled hundreds of cases. Counsel stated that he did not recognize

defendant or recollect representing him.

      Counsel testified about the manner in which he handles a criminal case.

He stated that generally, he reviews all of the discovery. He investigates and

considers any reasonable, viable defense. He said that if an exculpatory witness

is brought to his attention, he would investigate, attempt to get the witness to

provide a statement, and call the witness to testify at trial, if warranted.

      Defendant also testified.     He stated that he retained the attorney to

represent him in the case and spoke to him several times regarding the charges.

He said Rentas was the driver of the car during the police chase on September

1, 2006. Defendant testified that Rentas's sister is the mother of defendant's

daughter. He brought Rentas to his attorney's office and asked him to interview

Rentas.

      According to defendant, the attorney told him not to bring Rentas to his

office again. Defendant stated that his attorney advised him that because Rentas


                                                                               A-1217-17T3
                                        11
was a juvenile, defendant could face additional charges due to Rentas's

involvement in the incident. On cross-examination, defendant stated that Rentas

attended his trial, but Rentas never stated in open court that he was the person

who had been driving the car during the police chase.

      Defendant's PCR counsel informed the PCR court that he had tried to

contact Rentas to secure his appearance at the remand hearing.           Counsel

represented that he sent letters to Rentas, but they were returned, with no

forwarding address. He said he spoke with defendant's sister and she reached

out to friends and relatives, but they were not able to locate Rentas in the City

of Elizabeth.

      Defendant told the court that he still has contact with Rentas's sister. PCR

counsel stated he had not spoken with Rentas's sister. He said that until the day

of the hearing, he did not know she was the mother of defendant's child.

      In a letter opinion dated June 15, 2017, the PCR judge concluded that

defendant's petition should be denied. The judge found defendant's trial attorney

was "a very credible witness." Although the attorney did not specifically recall

representing defendant, he had testified "confidently" about his methods of

preparation for handling criminal cases.     The judge was convinced that if




                                                                           A-1217-17T3
                                      12
defendant had produced an exculpatory witness, counsel would have thoroughly

investigated and made efforts to have the witness testify at trial.

      The judge found that defendant's testimony was not credible. The judge

noted that in our opinion in the earlier appeal from the denial of PCR, we stated

that defense counsel's testimony was critical to resolving the defendant's claim

of ineffective assistance of counsel. The judge stated that Rentas's testimony is

"clearly even more critical."      The judge wrote that "[w]ithout [Rentas's]

testimony there simply is no way of determining that [defendant's] version of

the events surrounding the offense, trial preparation and the trial are true."

      The judge stated that even if it is true that Rentas told law enforcement

authorities that he was the driver of the car, he is "obviously not now available

to [defendant] and perhaps unwilling to testify and incriminate himself." The

judge pointed out that Rentas left the interview with a detective when he was

told he could be charged with an offense.

      The judge found that defendant had not established he was denied the

effective assistance of counsel due to his attorney's failure to call Rentas as a

witness at trial. The judge also found that defendant's other claims were barred

by Rule 3:22-4 because they could reasonably have been raised in his direct




                                                                           A-1217-17T3
                                       13
appeal. The judge entered an order dated June 23, 2017, denying PCR. This

appeal followed.

                                       IV.

      On appeal, defendant argues his trial attorney was deficient in failing to

call Rentas as a witness at trial. He asserts that at trial, Rentas would not have

been able to invoke his Fifth Amendment right against self-incrimination

because he had already waived it. Defendant argues that his trial counsel could

have proffered Rentas's inculpatory statement, in which he admitted driving the

vehicle during the September 1, 2006 police chase, by calling Baum as a witness.

Defendant contends Rentas's statement is hearsay but admissible under N.J.R.E.

803(c)(25) as a statement against interest.

      Defendant further argues that he established he was prejudiced by

counsel's failure to call Rentas as a witness or present his inculpatory statement

at trial. He contends the jury rejected Benitez's testimony that a juvenile was

driving the car at the time of the chase. He notes that the prosecutor elicited

testimony that Benitez was defendant's friend and had an interest in exonerating

him. He contends the jury would probably have accepted Rentas's testimony

because he had nothing to gain and could face criminal charges based on his

admission.


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                                       14
      To establish a prima facie case of ineffective assistance of counsel

defendant must satisfy the two-part test established in Strickland v. Washington,

466 U.S. 668, 687 (1984), and later adopted by our Supreme Court in State v.

Fritz, 105 N.J. 42, 58 (1987). The defendant first "must show that counsel's

performance was deficient." Strickland, 466 U.S. at 687. The defendant must

establish that his attorney "made errors so serious that counsel was not

functioning as the 'counsel' guaranteed [to] the defendant by the Sixth

Amendment." Ibid.

      The defendant also must show that his attorney's "deficient performance

prejudiced the defense."     Ibid.   The defendant must establish "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Id. at 694.

      We are constrained to reverse the order denying PCR and remand the

matter again for further proceedings. The record before us is insufficient to

resolve defendant's claim that he was denied the effective assistance of counsel

because his attorney did not call Rentas as a witness at trial or introduce his

inculpatory statements through other witnesses.         The PCR court did not

specifically address some of the key legal issues that defendant has raised on

appeal.


                                                                           A-1217-17T3
                                       15
      As we stated in our opinion in the previous appeal, Rentas's testimony is

critical in resolving defendant's claim of ineffective assistance of counsel.

Rentas did not, however, appear to testify at the remand hearing.          Since

defendant is asserting a claim of ineffective assistance of counsel, and since he

claims Rentas was willing to testify that he was driving the car during the

incident, defendant has the burden of producing Rentas or showing that he made

a reasonable effort to locate him and compel his appearance.

      At the remand hearing, PCR counsel represented to the court that he wrote

to Rentas but his letters were returned, without any forwarding address. PCR

counsel also represented that he spoke with defendant's sister and she reached

out to friends and family members to try to locate Rentas in Elizabeth, to no

avail. However, PCR counsel did not show that he made any effort to locate

Rentas in any place other than the City of Elizabeth. Moreover, defendant told

the court that he has been in contact with Rentas's sister, who is the mother of

defendant's child. PCR counsel conceded that he did not contact Rentas's sister.

      On remand, PCR counsel should make further efforts to locate Rentas and

secure his testimony. PCR counsel's efforts should not be limited to locating

Rentas in the City of Elizabeth. At the very least, PCR counsel should contact

Rentas's sister and endeavor to determine where Rentas could be found. If


                                                                         A-1217-17T3
                                      16
counsel is unable to locate and have Rentas appear, PCR counsel should provide

the PCR court with an affidavit or certification detailing his efforts to locate and

secure Rentas's testimony.

      If Rentas does not testify in the remand proceeding, the court should

nevertheless reconsider its decision denying PCR. On appeal, defendant argues

that Rentas waived his right to assert his right against self-incrimination when

he spoke with Baum and told her he was driving the car when the police were

chasing them.

      The record shows that Fidalgo informed the grand jury that Rentas told

Baum he had been driving the car. On remand, the PCR court should determine

whether Rentas waived his right against self-incrimination and could have been

compelled to testify that he was driving the car during the September 1, 2006

incident.

      In addition, on remand, the PCR court should address defendant's

contention that his trial attorney was deficient in failing to introduce the

statement that Rentas made to Baum where he admitted he was driving the car

during the chase. Rentas also told Fidalgo he was the driver. Defendant argues

that Rentas's statements are hearsay but admissible under the hearsay exception

in N.J.R.E. 803(c)(25). The court should address this argument.


                                                                            A-1217-17T3
                                        17
      The PCR court also should reconsider whether defendant was prejudiced

by counsel's failure to call Rentas as a witness or have his statement introduced

at trial through other witnesses. Defendant notes that Benitez testified that a

juvenile was driving the car at the time of the chase, but there were reasons why

the jury might not have credited his testimony.

      The PCR court should consider whether defendant has shown that it was

reasonably probable the jury would have reached a different decision on the

charges against defendant if Rentas had testified or his statement was introduced

as evidence. The court should consider whether it is reasonably probable the

jury still would have found Fidalgo's identification of defendant as the driver

credible.

      We note that on appeal, defendant has not preserved any argument

regarding the PCR court's determination that defendant's other claims were

barred by Rule 3:22-4.     Therefore, any claim that the PCR court erred in

addressing these claims is deemed waived. See Gormley v. Wood-El, 218 N.J.

72, 95 n.8 (2014); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div.

2001).




                                                                         A-1217-17T3
                                      18
      Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.




                                                                    A-1217-17T3
                                     19
