                                NOT FOR PUBLICATION WITHOUT THE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-1287-18T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GERMANIA TERRERO,

     Defendant-Appellant.
_________________________

                   Submitted August 10, 2020 – Decided August 31, 2020

                   Before Judges Moynihan and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 09-07-1251.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Richard Sparaco, Designated Counsel, on the
                   brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Germania Terrero was convicted by jury of first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense

of murder; two counts of first-degree felony murder, in the course of a robbery

and in the course of a burglary, N.J.S.A. 2C:11-3(a)(3); first-degree robbery and

conspiracy to commit first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-

2; second-degree burglary and conspiracy to commit second-degree burglary,

N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2; and related theft and weapons charges.

She was sentenced to thirty years in prison. We affirmed the conviction. 1 State

v. Terrero, No. A-0399-11 (App. Div. June 4, 2013) (Terrero I). We also

affirmed the denial of her first post-conviction relief (PCR) petition. State v.

Terrero, No. A-1635-15 (App. Div. June 8, 2017) (Terrero II).

      This appeal stems from the PCR court's denial of defendant's application

for assignment of the Office of the Public Defender (OPD) to represent her on

her second PCR because "[d]efendant's petition . . . failed to show a basis on its

face to preclude dismissal," and "all of defendant's alleged claims are time




1
  The facts of the case, most of which are not pertinent to this appeal, are
comprehensively set forth in the direct-appeal opinion.
                                                                          A-1287-18T4
                                        2
barred pursuant to [Rule] 3:22-12(a)(2)." Defendant does not challenge the

latter part of the court's order, but argues in her merits brief:

             THE [PCR] COURT ERRED IN FAILING TO
             APPOINT   THE   PUBLIC     DEFENDER TO
             REPRESENT DEFENDANT AND IN DENYING AN
             EVIDENTIARY HEARING ON DEFENDANT'S
             SECOND PETITION FOR [PCR].

In a pro se reply brief, which she termed a "supplemental brief," she argues:

             PETITIONER WAS DENIED THE EFFECTIVE
             ASSISTANCE OF COUNSEL, AND THEREBY THE
             RIGHTS OF DUE PROCESS WHEN HER
             APPELLATE COUNSEL CONCEDED THAT
             EVIDENCE ESTABLISHED THAT DEFENDANT
             KNOWINGLY     PARTICIPATED     IN   THE
             BURGLARY     AND   ROBBERY     OF   THE
             RESTAURANT – THIS CONCESSION WAS
             DETRIMENTAL TO THE DEFENDANT DIRECTLY
             SERVING TO SUPPORT LIABILITY FOR FELONY
             MURDERS, PROHIBITING ANY RELIEF IN
             SUBSEQUENT APPEALS.

      Notwithstanding the PCR court's failure to comply with Rule 1:7-4(a),

which mandates a court to issue a written or oral opinion or memorandum

decision setting forth its findings of facts and conclusions of law,2 we review


2
  We note a transcript request form was filed by defendant requesting a May 1,
2018 transcript. The request was marked "Incorrect Proceeding Date" by the
Transcript Unit which verified there was no hearing on this matter on the
specified date; the last hearing of record was July 23, 2015. As such, we do not
have any other decision from the trial court except the wording of its May 1,
2018 order.
                                                                         A-1287-18T4
                                          3
the PCR court's legal conclusions de novo. State v. Harris, 181 N.J. 391, 421

(2004). The same scope of review applies to mixed questions of law and fact.

Ibid. Through that lens, we are unpersuaded by defendant's arguments and

affirm.

      Defendant's sole merits-brief argument is that the PCR court erred in

denying her application for PCR counsel under Rule 3:22-6(b) which provides:

               Upon any second or subsequent petition filed pursuant
               to this Rule attacking the same conviction, the matter
               shall be assigned to the Office of the Public Defender
               only upon application therefor and showing of good
               cause. For purposes of this section, good cause exists
               only when the court finds that a substantial issue of fact
               or law requires assignment of counsel and when a
               second or subsequent petition alleges on its face a basis
               to preclude dismissal under R. 3:22-4.

      This paragraph limits "good cause" to circumstances where the court finds

"a substantial issue of fact or law" that signals some merit in the petition. See

Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 3:22-6(b) (2020)

("Presumably, a good cause finding in this context means the court's satisfaction

that there is some merit in the subsequent petition and that it is not wholly

frivolous.")




                                                                            A-1287-18T4
                                           4
        Of the nine points raised to the PCR court in her second PCR petition, 3

defendant contends she raised four "significant issues" that warranted the


3
    Defendant lists the nine points in her merits brief:

              POINT I

              TRIAL ATTORNEY INEFFECTIVE FOR FAILURE
              TO ADVISE DEFENDANT A DOMINICAN
              REPUBLIC NATIONAL, OF HER OWN RIGHT TO
              CONTACT THE DOMINICAN CONSULATE AT
              THE TIME OF HER ARREST, INDICTMENT AND
              PROSECUTION DEPRIVED HER OF CONSULAR
              ASSISTANCE.

              POINT II

              TRIAL ATTORNEY INEFFECTIVE FOR FAILING
              TO HAVE THE TESTIMONY OF THE STATE'S
              COOPERATING AND COMPENSATED WITNESS
              WHOSE EVENTUAL FREEDOM DEPENDED ON
              HIS ABILITY TO OBTAIN DEFENDANT'S
              CONVICTION    EXCLUDED    BECAUSE   HIS
              TESTIMONY WAS UNRELIABLE, INCONSISTENT
              AND    ITS   PROBATIVE    VALUE    WAS
              SUBSTANTIALLY OUTWEIGHED BY THE
              UNFAIR PREJUDICE IT PRODUCED.

              POINT III

              TRIAL ATTORNEY FAILED TO SEEK A MOTION
              TO SUPPRESS WHERE IT IS UNDISPUTED THAT
              THE DEFENDANT COULD NOT SPEAK, READ,
              WRITE    OR    UNDERSTAND       ENGLISH.
              DEFENDANT WAS NEVER PROVIDED THE


                                                                        A-1287-18T4
                                          5
(continued)
              OPPORTUNITY TO REVIEW AND SIGN HER
              STATEMENTS PRE-TRIAL. THESE STATEMENTS
              WERE USED AGAINST HER DURING TRIAL.

              POINT IV

              BECAUSE OF COURT INTERPRETER'S LACK OF
              PROFICIENT INTERPRETATION EVIDENCED BY
              NUMEROUS        INTERRUPTIONS      AND
              CORRECTIONS OF THEMSELVES AND OF
              COMMONLY      USED   WORDS    DEPRIVED
              DEFENDANT OF HER DUE PROCESS RIGHT TO
              FAIR TRIAL.

              POINT V

              BECAUSE OF THE STATE'S USE OF ASSISTANT
              PROSECUTOR WHO ALSO ACTED AS CHIEF OF
              HOMICIDE    EXPOSED     DEFENDANT    TO
              CONFIRMATION AND ROLE BIAS WHICH
              THREATENED     HIS    OBJECTIVITY   AND
              PREJUDICED DEFENDANT, DENYING HER DUE
              PROCESS RIGHT TO A FAIR TRIAL.

              POINT VI

              TRIAL ATTORNEY INEFFECTIVE FOR FAILING
              TO OBJECT TO TRIAL JUDGE'S FAILURE TO
              INCLUDE THE DEFENSE'S THEORY OF CASE IN
              THE JURY INSTRUCTIONS.

              POINT VII

              DEFENDANT      RECEIVED      INEFFECTIVE
              ASSISTANCE OF PCR APPELLATE COUNSEL FOR


                                                         A-1287-18T4
                                 6
(continued)
              FAILING TO RAISE ALL ISSUES CITED IN THE
              PCR PROCEEDINGS FOR CERTIFICATION.

                  A. PCR APPELLATE COUNSEL FAILED TO
                  RAISE AND ARGUE POINT III OF PCR
                  COUNSEL'S BRIEF: [DEFENDANT] WAS
                  DENIED THE EFFECTIVE ASSISTANCE OF
                  COUNSEL, AND THEREBY HER RIGHTS OF
                  DUE PROCESS AND A FAIR TRIAL, WHEN
                  HER TRIAL ATTORNEY ERRED IN HIS
                  CLOSING ARGUMENTS.

                  B. PCR APPELLATE COUNSEL FAILED TO
                  RAISE AND ARGUE POINT I OF PCR
                  COUNSEL'S    SUPPLEMENTAL    BRIEF:
                  [DEFENDANT]    WAS    DENIED   THE
                  EFFECTIVE ASSISTANCE OF COUNSEL,
                  AND THEREBY THE RIGHTS OF DUE
                  PROCESS    WHEN    HER   APPELLATE
                  COUNSEL    CONCEDED     THAT   THE
                  EVIDENCE      ESTABLISHED     THAT
                  [DEFENDANT]             KNOWINGLY
                  PARTICIPATED IN THE BURGLARY AND
                  ROBBERY OF THE RESTAURANT.

                  C. PCR APPELLATE COUNSEL FAILED TO
                  ADDRESS ISSUES DEFENDANT WISHED TO
                  RAISE ON CERTIFICATION BECAUSE HE
                  FAILED TO RESPOND TO PHONE CALLS
                  AND     REQUEST   LETTERS   WHICH
                  PREJUDICED DEFENDANT PREVENTING
                  HER FROM RECEIVING MEANINGFUL
                  ADJUDICATION OF HER APPEAL.




                                                         A-1287-18T4
                                 7
appointment of PCR counsel, first arguing "her trial attorney was ineffective

because she was not advised of her right to contact the Dominican Consulate for

assistance and guidance." If so advised, as required by the Vienna Convention

of Consular Relations (the Convention), Apr. 24, 1963, art. 36, 21 U.S.T. 77,

101, she avers she "would have been in a much better position to communicate

with her attorney and therefore assist in her defense," and that the Dominican

Consul would have been of assistance in explaining her right to testify in her

own defense, a right of which she claims was never advised.

      A violation of an individual's rights conferred by the Convention will not

serve to overturn a conviction absent a showing of prejudice. State v. Cevallos-

Bermeo, 333 N.J. Super. 181, 182-83, 187 (App. Div. 2000).




(continued)
              POINT VIII

              THE CUMULATIVE ERRORS OF TRIAL AND
              APPELLATE COUNSELS CAUSED PREJUDICE TO
              THE   DEFENDANT    DENYING   HER  THE
              EFFECTIVE ASSISTANCE OF COUNSEL AND A
              MEANINGFUL AND VIABLE DEFENSE DURING
              HER TRIAL AND APPELLATE PROCESS.

              POINT IX

              ADDITIONAL POINT TO BE RAISED BY THE
              DISCRETION OF APPOINTED COUNSEL.
                                                                        A-1287-18T4
                                       8
            To establish prejudice, defendant must produce
            evidence that: 1) he [or she] did not know his [or her]
            right; 2) he [or she] would have availed himself [or
            herself] of the right had he [or she] known of it; and 3)
            there was a likelihood that contact with the consul
            would have resulted in assistance to him [or her].

            [Id. at 187.]

      Focusing on the third prong, defendant concedes in her merits brief the

Consul was unable to render legal advice, id. at 188, thus scotching her argument

that Consul could have advised of her right not to testify.

      We also note she raised both of her underlying claims in her first petition

for PCR. The first PCR court addressed defendant's claim that her trial counsel

was ineffective 4 for failing to advise her to testify in her own defense. In its

comprehensive written opinion, the first PCR court, which also presided over

defendant's trial, determined:


4
     Under the well-known standard for determining whether counsel's
representation was ineffective a defendant must satisfy the test formulated in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by showing "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687); then by proving he or she suffered prejudice due
to counsel's deficient performance, Strickland, 466 U.S. at 687, 691-92.
Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome. Fritz, 105 N.J. at 58.



                                                                         A-1287-18T4
                                        9
             the record clearly establishe[d] that [defendant]
             understood she could testify no matter what trial
             counsel advised. Trial counsel noted on the record that
             he and [defendant] "talked about this extensively" and
             "for months." [Defendant] did not disagree with trial
             counsel's statements at that time. At trial, trial counsel
             also acknowledged that he advised against [defendant]
             testifying. [Defendant] did not show any signs of
             dissatisfaction with this advice or unwillingness to
             follow it. This [c]ourt also ensured [defendant]
             understood she had the right to testify by explaining
             that right to [defendant] in court, even though trial
             counsel advised her against taking the stand. As the
             record indicates, [defendant] indicated to this [c]ourt
             that she understood that trial counsel could not prevent
             her from exercising this right.

      In affirming the first PCR court's decision, we held "[d]efendant made the

tactical decision not to take the stand with full knowledge of the consequences

of that choice," Terrero II, slip op. at 6, observing that

             [a]t the conclusion of all other testimony, the trial judge
             made clear to defendant that the decision to testify was
             hers alone. He also advised her, verbatim, of the
             instruction that he would give to the jury if she chose
             not to testify, and she chose to have the instruction
             included in the final charge. As the court was going to
             recess, the judge offered defendant the opportunity to
             consult with counsel over the weekend about her
             choices. Defense counsel indicated that defendant did
             not need the time to confer because they had extensive
             prior discussions about defendant's option to testify.
             Defendant told the court she would accept her
             attorney's advice and would not testify. After the judge,
             again, reminded her it was her preference, not
             counsel's, defendant said, "I know it's my decision."

                                                                           A-1287-18T4
                                        10
            [Id. at 5-6.]

We also echoed the first PCR court's conclusion that defendant did not establish

a prima facie case of ineffective assistance of counsel because she did not proffer

what she would have testified to and failed to show that she was prejudiced by

her trial counsel's recommendation not to testify.

      Defendant's claims regarding her trial counsel's failure to adequately

communicate with her in Spanish and that problems with the interpreters utilized

at trial, including that "numerous interruptions and corrections [were] needed,"

were also addressed by the first PCR court which determined that the claims

were belied by

            the record, which show[ed] no indication that
            [defendant] had difficulty understanding the Spanish
            translators that trial counsel utilized in order to
            communicate with [defendant], or with the Spanish
            translators provided by the [c]ourt during trial and
            during recesses from trial when defense counsel used
            the [c]ourt[-]provided translator to communicate with
            [defendant]. Moreover, [defendant] does not present
            any particular incident or factual support that
            demonstrates her inability to communicate with trial
            counsel via the Spanish translators.

The first PCR court also concluded defendant failed to establish that she was

prejudiced by trial counsel's conduct, showing that the trial results would have



                                                                           A-1287-18T4
                                       11
been different if proper translation was provided. We agreed with the first PCR

court's ruling. Terrero II, slip op. at 10-11.

      Allowing that defendant now couches her arguments in terms of trial

counsel's failure to advise her of her rights under the Convention, the first PCR

court's determinations, as affirmed on appeal, manifest the absence of any

prejudice suffered by defendant as a result of the alleged failure to advise her of

her right to contact the Consul.       Inasmuch as her conviction will not be

overturned without such a showing, Cevallos-Bermeo, 333 N.J. Super. at 182-

83, 187, those issues are not sufficiently substantial to require the appointment

of PCR counsel under Rule 3:22-6(b).

      Furthermore, any issue relating to the conduct of the trial that should have

been raised on direct appeal is barred from assertion in a PCR. R. 3:22-4(a).

Any issue previously adjudicated is likewise barred. R. 3:22-5. And Rule 3:22-

4(b) requires dismissal of a second or subsequent PCR petition, even if timely

filed under Rule 3:22-12(a)(2), unless it facially alleges reliance on a previously

unavailable and newly recognized constitutional rule of law, R. 3:22-4(b)(2)(A);

discovery of a "factual predicate" that "could not have been discovered earlier

through the exercise of reasonable diligence," and "the facts underlying the

ground for relief, if proven and viewed in light of the evidence as a whole, would


                                                                           A-1287-18T4
                                        12
raise a reasonable probability that" the sought relief would be granted, R. 3:22-

4(b)(2)(B); or the petition alleges a prima facie case that defendant's first PCR

counsel was ineffective, R. 3:22-4(b)(2)(C). Defendant does not rely on any

new constitutional principle; the issues relating to her right to testify and her

understanding of the translated proceedings were not only apparent for inclusion

in her direct appeal and first PCR petition, the previously addressed issues do

not raise a reasonable probability of success; and defendant does not make any

claim of ineffective assistance of her first PCR counsel. Defendant's second

petition, therefore, did not allege on its face a basis to preclude dismissal under

Rule 3:22-4; thus, defendant failed to establish good cause for appointment of

counsel under Rule 3:22-6(b).

      Defendant's remaining merits-brief arguments are without sufficient merit

to warrant discussion in this opinion. R. 2:11-3(e)(2). We comment briefly that

defendant's only other "significant issues" are her general statement that she

"raised ineffectiveness of appellate counsel's failure to communicate with her in

a meaningful way" and she "specifically left open that there were arguments to

be raised" by an assigned counsel. Those vague averments do not establish good

cause requiring the appointment of counsel.




                                                                           A-1287-18T4
                                       13
      We likewise see no merit in the argument raised in defendant's pro se

brief—that appellate counsel ineffectively conceded to her detriment that

evidence established her knowing participation in the robbery and burglary

counts, supporting her liability on the felony murder count and "prohibiting any

relief in subsequent appeals"—to warrant any discussion.          Ibid.   As we

concluded on direct appeal, "the [trial] evidence was sufficient to support a

reasonable inference [5] that defendant knew that the robbers would be armed

with a deadly weapon," Terrero I, slip op. at 18; and that

            her knowledge that [a codefendant] intended to
            purposely inflict or attempt to inflict serious bodily
            injury, are each sufficient to support a reasonable
            inference that she had "the purpose of promoting or
            facilitating the commission of" first-degree robbery and
            second-degree burglary, sufficient to support her
            conviction as an accomplice and as a conspirator for
            those offenses.

            [Id. at 20-21.]




5
   We considered the issue in the context of defendant's challenge to the trial
court's denial of her motion for judgment of acquittal. See State v. Reyes, 50
N.J. 454, 458-59 (1967) (holding, in deciding such a motion, the question the
trial judge must determine is whether, "viewing the State's evidence in its
entirety, be that evidence direct or circumstantial, and giving the State the
benefit of all its favorable testimony as well as all of the favorable inferences
which reasonably could be drawn therefrom, a reasonable jury could find guilt
of the charge beyond a reasonable doubt").
                                                                          A-1287-18T4
                                      14
The first PCR court noted our finding in addressing defendant's contention that

appellate counsel's concession was ineffective. Defendant cannot advance the

same argument. R. 3:22-5.

      Affirmed.




                                                                       A-1287-18T4
                                     15
