                                 NOT FOR PUBLICATION WITHOUT THE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-3053-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ARTHUR L. THOMPSON, a/k/a
NASHEED THOMPSON

     Defendant-Appellant.
______________________________

                   Submitted March 11, 2020 – Decided April 20, 2020

                   Before Judges Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 11-08-1559.

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

                   Theodore N. Stevens II, Acting Essex County
                   Prosecutor, attorney for respondent (Hannah Faye Kurt,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the briefs).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant appeals from the November 27, 2018 Law Division order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. In his counseled brief, defendant raises the following arguments for

our consideration:

            POINT I

            THE TRIAL COURT ERRED IN DENYING
            [DEFENDANT'S] PETITION FOR [PCR] WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT HE
            FAILED TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION AT THE TRIAL LEVEL.

                     A. THE LOWER COURT'S MERE
                     SPECULATION THAT [DEFENDANT'S]
                     DECISION NOT TO TESTIFY ON HIS
                     OWN BEHALF WAS "LIKELY THE
                     RESULT    OF      SOUND    TRIAL
                     STRATEGY ON COUNSEL'S BEHALF"
                     WAS     NOT     A    PERMISSIBLE
                     SUBSTITUTE FOR AN EVIDENTIARY
                     HEARING; IN THE ABSENCE OF AN
                     EVIDENTIARY      HEARING,    THE
                     RECORD DOES NOT DEMONSTRATE
                     THAT        TRIAL       COUNSEL
                     ADEQUATELY      EXPLAINED,    OR
                     DISCUSSED AT ALL, THE RELEVANT
                     RAMIFICATIONS        CONCERNING
                     [DEFENDANT'S] DECISION WHETHER
                     TO TESTIFY ON HIS OWN BEHALF
                     AND    TO    REQUEST    A   JURY
                     INSTRUCTION ON THIS ISSUE.

                                                                      A-3053-18T4
                                     2
            B. [DEFENDANT] DID NOT RECEIVE
            ADEQUATE                LEGAL
            REPRESENTATION     FROM  TRIAL
            COUNSEL AS A RESULT OF TRIAL
            COUNSEL'S FAILURE TO CONDUCT
            ADEQUATE INVESTIGATION OF ALL
            POSSIBLE DEFENSES.

            C. [DEFENDANT] DID NOT RECEIVE
            ADEQUATE                  LEGAL
            REPRESENTATION     FROM    TRIAL
            COUNSEL AS A RESULT OF TRIAL
            COUNSEL'S       FAILURE         TO
            AGGRESSIVELY      ASSERT     AND
            PURSUE A DEFENSE THAT HE DID
            NOT KNOW CO-DEFENDANT MILLER
            BEFORE    [THE]    MURDER       ON
            JANUARY     18,  2010,  INSTEAD
            CHOOSING     TO    ALLOW      THE
            PROSECUTOR'S CONTENTION THAT
            [DEFENDANT] WAS "NAIL[ED] . . . TO
            THE MURDER SCENE" TO GO
            UNCHALLENGED                 AND
            UNEXPLAINED.

In his pro se brief, defendant raises the following arguments:

      [POINT I]

      DEFENDANT            CLAIMS    INEFFECTIVE
      ASSISTANCE OF [PCR] COUNSEL WHERE [PCR]
      COUNSEL FAILED TO PERFORM HIS DUTY TO
      INVESTIGATE SUBSTANTIAL ASSERTIONS AND
      ADVANCE REQUESTED GROUNDS [INSISTED]
      UPON AS PER [RULE] 3:22–6(D), STATE V. RUE,
      175 N.J. 1 [(2002)].

      [POINT II]

                                                                 A-3053-18T4
                                 3
            [DEFENDANT] DID NOT RECEIVE ADEQUATE
            LEGAL REPRESENTATION FROM PCR COUNSEL,
            THE MATTER SHOULD BE REMANDED TO THE
            TRIAL COURT TO ASSIGN NEW []PCR[]
            COUNSEL TO REPRESENT HIM, TO PERMIT THE
            FILING OF SUPPLEMENTAL SUBMISSIONS ON
            HIS BEHALF, AND TO CONDUCT A NEW
            HEARING RELATING THERETO. (NOT RAISED
            BELOW).

            [POINT III]

            PCR COURT DENIED DEFENDANT ADEQUATE
            PCR REVIEW, ENCOURAGED PCR COUNSEL TO
            VIOLATE[] DEFENDANT'S RIGHT TO DUE
            PROCESS AND SHOULD BE REMANDED TO THE
            TRIAL COURT TO ASSIGN NEW []PCR[]
            COUNSEL TO REPRESENT HIM, TO PERMIT THE
            FILING OF SUPPLEMENTAL SUBMISSIONS ON
            HIS BEHALF AND TO CONDUCT A NEW
            HEARING RELATING THERETO. (NOT RAISED
            BELOW).

We reject defendant's contentions and affirm for the reasons expressed in Judge

John I. Gizzo's comprehensive and well-reasoned written opinion.

      We incorporate herein the facts set forth in State v. Thompson, No. A-

4055-12 (App. Div. May 10, 2017) (slip op. at 8), certif. denied, 231 N.J. 119

(2017), wherein we affirmed defendant's 2012 convictions for murder, felony

murder, first-degree armed robbery, second-degree burglary, conspiracy, and

related weapons possession offenses following a joint jury trial with co-

defendant Derrick Miller. We also affirmed the aggregate life sentence, subject

                                                                       A-3053-18T4
                                      4
to the No Early Release Act, N.J.S.A. 2C:43-7.2, imposed on February 15, 2013.

Id. at 21.

      To summarize, the convictions "arose out of a home invasion and murder

that occurred on January 18, 2010, at a residence in Irvington" located on

Brighton Terrace. Id. at 8. "The evidence at trial established that the home was

a two-family house where an adult brother [the brother] and sister [the sister]

lived with their respective families." Ibid. The decedent, the sister's live-in

boyfriend, was fatally shot "three times" by the intruders while the other

occupants in the house retreated to various locations. Id. at 8-10. After hearing

"a gunshot," the brother

             ran outside. As he hid behind bushes, he heard more
             gunfire and saw two men get into a car and drive away.
             Prior to their departure, [he] was able to see the face of
             one of the assailants.

                   Almost immediately, the police responded to the
             home. [The brother] pointed in the direction of the car
             and exclaimed to the police that "the car is right
             there[,]" and "that's them, that's them." The responding
             police officer testified that he followed the car and
             pulled it over several blocks from the home. The males
             in the vehicle were later identified as [co-defendant]
             Miller and [defendant].

             [Id. at 9-10 (third alteration in original).]




                                                                          A-3053-18T4
                                          5
      During the "twelve-day jury trial," in addition to the brother's

identification of co-defendant Miller,

            the State proffered numerous witnesses and expert
            opinions, including a forensic scientist specializing in
            serology (the study of blood serum) and a forensic
            scientist specializing in DNA analysis. The serology
            expert found traces of blood on Miller's white thermal
            shirt and dark blue-gray pants. The State's forensic
            scientist analyzed the DNA samples from this clothing
            and concluded the blood on the clothing was that of the
            victim . . . .

            [Id. at 10-11.]

      In his timely PCR petition, as recounted by Judge Gizzo, defendant made

the following arguments:

            He argues that he was denied effective assistance of
            counsel based on his own assertion of non-acquaintance
            with codefendant Miller, trial counsel's failure to
            investigate [defendant's] claim of non-acquaintance,
            trial counsel's failure to object to the absence or
            presence of blood splatter evidence at the probable
            cause hearing, and appellate counsel's failure to
            challenge the trial judge's denial of his motion for
            acquittal. [Defendant] also argues that he is entitled to
            either an evidentiary [hearing] or a new trial as a result
            of his counsel's alleged deficiencies.

      Following oral argument, the judge denied defendant's petition. In his

November 27, 2018 written decision, the judge reviewed the factual background

and procedural history of the case, applied the applicable legal principles, and


                                                                         A-3053-18T4
                                         6
concluded defendant failed to establish a prima facie case of ineffective

assistance of counsel (IAC). The judge found defendant failed to show that

either counsel's performance fell below the objective standard of reasonableness

set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by

our Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the

outcome would have been different without the purported deficient performance

as required under the second prong of the Strickland/Fritz test. Additionally, in

rejecting defendant's request for an evidentiary hearing, the judge concluded

defendant failed to present any issues that could not be resolved by referenc e to

the existing record.

      In rejecting defendant's claim "that he was denied effective assistance of

counsel because his trial attorney did not argue his non-acquaintance with [co-

defendant] Miller," the judge stated:

            [Defendant] submitted an affidavit in May, 2012, two
            years after the home invasion occurred. In the affidavit,
            he claims he ran back to his car, which was parked on
            Brighton Terrace, after he heard gunshots. Shortly after
            entering his car for safety, an unknown individual, . . .
            co-defendant . . . Miller, entered the passenger's seat.
            [Defendant] then proceeded to drive away with this
            supposed stranger without anything more than a look of
            dissatisfaction directed to . . . Miller.

                  It cannot be said that trial counsel's failure to put
            this argument forth at trial amounts to deficiency.

                                                                          A-3053-18T4
                                        7
Doing so would have required [defendant] to take the
stand at trial in order to testify to the contents of his
2012 affidavit. Even so, it only takes two individuals
to create a conspiracy, regardless of whether they were
already acquainted. Additionally, there is no evidence
to suggest that trial counsel prevented [defendant] from
his right to take the stand, nor did [defendant] argue this
on his direct appeal. . . . Any shortcomings of this trial
strategy would not necessarily render counsel
ineffective.

       Even if counsel fell below the objective standard
of performance, there is no reasonable probability that
the jury would have decided differently, had
[defendant] taken the stand to testify to what he claimed
in his affidavit.

       [Defendant's] story hardly stands up to the
evidence presented at trial. [A neighbor], who lived
directly across the street . . . placed [defendant] at the
murder scene. She testified that she saw a man who she
did not recognize proceed over to the front fence with
a mask covering his head one to two minutes after
hearing gunshots coming from that direction. Another
man followed, and the two made their way up the
sidewalk and entered [the] car, which [defendant]
borrowed earlier that night.

       [The neighbor's] testimony was corroborated not
only by her prior statement, but also by [the brother's]
real-time report. This evidence directly contradicts
[defendant's] story in which he claims that . . . Miller
was just a stranger with [the victim's] blood on his
clothes who happened to find his way to [defendant's]
car as [defendant] was seeking safety from gunfire that
he heard in the area.



                                                              A-3053-18T4
                            8
                   In light of this, it seems abundantly clear that
             counsel's failure to argue non-acquaintance was a
             conscious, strategic decision rather than a failure to
             raise a defense that could reasonably be said to have
             changed the outcome of the trial.

      Turning to defendant's argument that he received IAC because "neither

his initial defense counsel . . . nor his trial counsel . . . investigated or argued

the allegations set forth in his [2012] affidavit," the judge noted "[i]n order to

communicate the contents of the affidavit to the jury, [defendant] would have

had to take the stand." However, "[h]aving [defendant] take the stand and testify

to what he claimed in his affidavit would not only be contradicted by the

testimony of at least two other witnesses who saw him enter the car with . . .

Miller but would also have exposed him to cross-examination."

      On appeal, defendant primarily argues "he did not receive adequate legal

representation . . . as a result of counsel's failure to conduct an adequate pretrial

investigation1 which would have resulted in the viable defense that [he] did not


1
   Notably, a review of the trial record shows that trial counsel did, in fact,
investigate allegations contained in defendant's 2012 affidavit as evidenced by
the defense presented at trial. In the affidavit, defendant asserted that on his
way to Irvington on the night in question, he had "numerous [phone] calls"
between himself and "a friend . . . from Jersey City." At trial, defense counsel
produced the Jersey City friend and introduced defendant's phone records during
the witness' testimony to corroborate her account that there were "several phone
calls" between her and defendant "between . . . [10:00 p.m.] and about [10:26
p.m.]" on January 18, 2010, when the crimes were committed.
                                                                             A-3053-18T4
                                         9
know co-defendant Miller before the night" in question "when Miller entered

his car unexpectedly and without permission." According to defendant, the

judge erred in "reject[ing] this aspect of [his] petition without even affording

him an evidentiary hearing."

      Merely raising a claim for PCR does not entitle a defendant to relief or an

evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). Rather, trial courts should grant evidentiary hearings only if the

defendant has presented a prima facie claim of IAC, material issues of disputed

fact lie outside the record, and resolution of those issues necessitates a hearing.

R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). A PCR court deciding

whether to grant an evidentiary hearing "should view the facts in the light most

favorable to a defendant . . . ." State v. Preciose, 129 N.J. 451, 463 (1992).

However, "[a] court shall not grant an evidentiary hearing" if "the defendant's

allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed,

the defendant "must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts sufficient to demonstrate

counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.

      In turn, "we review under the abuse of discretion standard the PCR court's

determination to proceed without an evidentiary hearing." State v. Brewster,


                                                                           A-3053-18T4
                                       10
429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding

an evidentiary hearing will not aid the court's analysis of whether the defendant

is entitled to post-conviction relief, . . . then an evidentiary hearing need not be

granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89,

158 (1997)). We also typically review a PCR petition with "deference to the

trial court's factual findings . . . 'when supported by adequate, substantial and

credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in

original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549

(2002)). However, where, as here, "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, 181 N.J. at

421). We also review de novo the legal conclusions of the PCR judge. Harris,

181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).

      To establish a prima facie claim of IAC, a defendant must satisfy the two-

prong Strickland/Fritz test, and "bears the burden of proving" both prongs of an

IAC claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339,

350 (2012). Specifically, a defendant must show that (l) "counsel's performance

was deficient" and he "made errors so serious that counsel was not functioning


                                                                            A-3053-18T4
                                        11
as the 'counsel' guaranteed . . . by the Sixth Amendment" to the United States

Constitution; and (2) "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable

probability is defined as "a probability sufficient to undermine confidence in the

outcome." Strickland, 466 U.S. at 694.

      Under the first Strickland prong, "a defendant must overcome a 'strong

presumption' that counsel exercised 'reasonable professional judgment' and

'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.

123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is

strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.

at 690, as measured by a standard of "reasonable competence." Fritz, 105 N.J.

at 53.    However, "'[r]easonable competence' does not require the best of

attorneys," State v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of

detailed rules for counsel's conduct can satisfactorily take account of the variety

of circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at

688-89.

      For that reason,


                                                                           A-3053-18T4
                                       12
            an otherwise valid conviction will not be overturned
            merely because the defendant is dissatisfied with his or
            her counsel's exercise of judgment during the trial. The
            quality of counsel's performance cannot be fairly
            assessed by focusing on a handful of issues while
            ignoring the totality of counsel's performance in the
            context of the State's evidence of defendant's guilt. As
            a general rule, strategic miscalculations or trial
            mistakes are insufficient to warrant reversal except in
            those rare instances where they are of such magnitude
            as to thwart the fundamental guarantee of a fair trial.

            [State v. Castagna, 187 N.J. 293, 314-15 (2006)
            (citations, internal quotation marks, and brackets
            omitted).]

Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential."

Strickland, 466 U.S. at 689.

      Under the second Strickland prong, defendant must prove prejudice.

Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error

had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an

exacting standard" and "'[t]he error committed must be so serious as to

undermine the court's confidence in the jury's verdict or the result reach ed.'"

State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting

Castagna, 187 N.J. at 315).




                                                                         A-3053-18T4
                                      13
      Applying these principles, we are satisfied defendant failed to make a

prima facie showing of IAC under the Strickland/Fritz test, and we discern no

abuse of discretion in the judge's denial of defendant's PCR petition without an

evidentiary hearing.

      Defendant contends his attorney was ineffective by failing to conduct an

adequate pretrial investigation of his non-acquaintance defense. An attorney's

failure to investigate "is a serious deficiency that can result in the reversal of a

conviction." Porter, 216 N.J. at 353. "[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary." Strickland, 466 U.S. at 691. However, "when a

[defendant] claims his trial attorney inadequately investigated his case, he must

assert the facts that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge of the affiant or

the person making the certification." Cummings, 321 N.J. Super. at 170.

      Here, defendant asserts his 2012 affidavit provided the necessary facts

that an investigation would have revealed. However, he acknowledges, as the

judge did, that "the only way this potential defense could have been raised at

trial would have been for [defendant] to testify on his own behalf." Instead,

defendant knowingly and voluntarily waived his right to testify at trial.


                                                                            A-3053-18T4
                                        14
      At the PCR hearing, for the first time, defendant implied that defense

counsel did not "properly advise him as to whether or not he should take the

stand."    However, defendant offered no support for this claim and,

notwithstanding defendant's argument to the contrary, the voir dire conducted

by the trial court confirmed that defendant's decision to waive his right to testify

was "voluntary" and was made after "complete consultation with [his attorney]."

      Defendant's unsupported claim that he was not properly advised whether

to testify is fatal to his petition and fatal to his argument that he was entitled to

an evidentiary hearing. Indeed, "[d]efendant must demonstrate a prima facie

case for relief before an evidentiary hearing is required, and the court is not

obligated to conduct an evidentiary hearing to allow defendant to establish a

prima facie case not contained within the allegations in his PCR petition." State

v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008). Even assuming

defense counsel failed to properly advise defendant of his right to testify,

because the Strickland/Fritz test requires "defendants to prove that they have

been prejudiced by defense counsel's failure to inform them of the right to

testify[,]" State v. Bey, 161 N.J. 233, 271 (1999), we agree with Judge Gizzo

that defendant also failed to satisfy the prejudice prong because his testimony




                                                                             A-3053-18T4
                                        15
would not have altered the outcome "in the context of the State's evidence of

defendant's guilt." Castagna, 187 N.J. at 314-15.

      In his pro se brief, defendant asserts for the first time on appeal that his

PCR counsel was ineffective because he failed to advance all the issues raised

by defendant and failed to investigate claims raised by defendant. "Generally,

an appellate court will not consider issues, even constitutional ones, which were

not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Thus, we decline

to consider defendant's newly minted contentions. Indeed, our task on this

appeal is to review the PCR court's ruling in view of the record before us.

However, defendant is free to file a new PCR petition asserting that counsel

assigned to represent him in his first PCR rendered ineffective assistance. See

R. 3:22-4(b)(2)(C). To the extent we have not specifically addressed any of

defendant's remaining arguments, we deem them without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-3053-18T4
                                      16
