                                NOT FOR PUBLICATION WITHOUT THE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-3540-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GARY MADDOX, a/k/a
GARY FOSTER,

     Defendant-Appellant.
_________________________

                   Submitted May 6, 2020 – Decided July 8, 2020

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 07-09-0124.

                   Kelly Anderson Smith, attorney for appellant.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Daniel A. Finkelstein, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      The trial court denied defendant Gary Maddox's post-conviction relief

(PCR) petition by order and oral opinion on May 8, 2015. We affirmed, but the

Supreme Court remanded the matter to the PCR court to hear oral argument.

Following oral argument, the PCR court denied the petition by way of a March

8, 2019 order, and defendant now appeals. We remand for an evidentiary

hearing limited to one issue: was trial counsel ineffective in failing to call three

witnesses.

                                         I.

      Defendant was indicted for first-degree racketeering, N.J.S.A. 2C:41-2;

first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 and

2C:2-6; second-degree conspiracy, N.J.S.A. 2C:5-2; and related drug offenses.

Those charges arose out of evidence collected during an extensive investigation

conducted by the State Police.

      During a ten-day trial in 2009, the State presented evidence that defendant

engaged in the sale of various controlled dangerous substances, including

cocaine, crystal methamphetamine, painkillers, and marijuana. The State also

presented evidence that defendant supervised at least three people as part of a

narcotics network: Lori Gephart, his girlfriend; Gerald Foster, his younger

brother; and Charles Muldrow, his nephew.


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                                         2
      The evidence at trial included testimony from an informant who worked

with the State Police. The informant testified concerning numerous controlled

buys of narcotics from defendant or his associates. Those buys were observed

by the State Police, and officers also testified about those buys and the

monitored conversations between the informant and defendant. The State also

obtained a warrant to wiretap two of defendant's cell phones and presented

recordings of numerous conversations.         The transcripts of those telephone

conversations included multiple incriminating statements concerning the extent

of defendant's drug-selling activities.

      In addition, the State presented testimony from Nasar Perez, a drug

supplier who was arrested when he traveled to Arizona to obtain five kilograms

of cocaine to sell to defendant and co-defendant Jason McKinnon. Moreover,

the evidence at trial included testimony by Bennet Goodin and Jonathan Flick,

two "runners" who were recruited to distribute drugs for defendant and co-

defendant McKinnon.

      When the State Police arrested defendant, they executed search warrants

of his home and a storage unit. During the searches of defendant's home, the

police seized small amounts of cocaine and marijuana, money orders and




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                                          3
receipts totaling $10,000, approximately $3000 in United States currency, and

eight vehicles.

      After hearing that evidence, a jury convicted defendant of eight crimes:

first-degree racketeering, second-degree conspiracy, first-degree leader of a

narcotics trafficking network, first-degree distribution of cocaine, N.J.S.A.

2C:35-5(a)(1),    2C:35-5(b)(1),    2C:35-5(c),    and    2C:2-6;   second-degree

distribution of methamphetamine, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(9)(a),

2C:35-5(c), and 2C:2-6; third-degree distribution of cocaine within 1000 feet of

school property, N.J.S.A. 2C:35-7 and 2C:2-6; third-degree possession of

cocaine, N.J.S.A. 2C:35-10(a)(1) and 2C:2-6; and third-degree money

laundering, N.J.S.A. 2C:21-25(a), as a lesser included offense of second-degree

money laundering.

      At sentencing, the court granted the State's motion for an extended term

on the conviction for leader of a narcotics trafficking network, and defendant

was sentenced to a term of life in prison with thirty years of parole ineligibility.

Defendant was also sentenced to consecutive terms of fifteen and three years in

prison on his convictions for racketeering and money laundering.                 All

defendant's other sentences were run concurrent to his sentence to life in prison.




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                                         4
        Defendant filed a direct appeal and we affirmed his convictions and

sentence. State v. Maddox, No. A-1715-09, A-1856-09 (App. Div. July 8,

2013). In affirming his convictions, we reviewed, analyzed, and rejected ten

arguments he raised. We also detailed the evidence presented against defendant

and pointed out that that evidence was "overwhelming." The Supreme Court

denied defendant's petition for certification. State v. McKinnon, 217 N.J. 285

(2014).

        In June 2014, defendant filed a petition for PCR. He was assigned counsel

and, with the assistance of counsel, he prepared an amended petition and

submitted various certifications.

        On March 20 and April 24, 2015, the PCR judge heard argument on

defendant's petition. On April 24 and May 8, 2015, the judge read an oral

opinion into the record and issued an order denying defendant's petition. In her

opinion, the judge detailed the multiple arguments presented by defendant's PCR

counsel, as well as defendant himself, analyzed those arguments, and rejected

them.

        As noted earlier, we affirmed the denial of defendant's petition

substantially for the reasons expressed by the PCR judge in her opinion . State

v. McKinnon, No. A-5751-14, A-0192-15 (App. Div. Nov. 17, 2017).


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                                        5
      As also already noted, the Supreme Court granted defendant's petition for

certification and remanded the case to the PCR court for oral argument. In that

same order, the Supreme Court granted certification to co-defendant McKinnon

and remanded for oral argument on McKinnon's PCR petition.                State v.

McKinnon, 233 N.J. 368 (2018).

      On March 1, 2019, the same PCR judge heard oral argument on

defendant's petition. Defendant's PCR counsel referenced a number of alleged

grounds for ineffective assistance of trial and prior appellate counsel but focused

his arguments on defendant's right to an evidentiary hearing on the contention

that trial counsel was ineffective in not calling three witnesses. In support of

that argument, defendant contended that he had submitted certifications and

signed statements from Gephart, Foster, and Muldrow.              Each of those

individuals contended that they had never worked for defendant; rather, they had

independently sold drugs for their own benefit.

      After considering the oral arguments, the PCR judge denied defendant's

petition in an order entered on March 8, 2019. The court also issued a written

opinion explaining that none of the arguments presented orally changed her view

and she, therefore, relied on and incorporated by reference her extensive oral

opinion issued in April and May 2015.


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                                        6
                                        II.

        Defendant now appeals from the March 8, 2019 order denying his petition.

On appeal, defendant contends: "THE PCR COURT ERRED IN DENYING AN

EVIDENTIARY HEARING."               More specifically, defendant makes two

arguments. First, he contends that he was entitled to an evidentiary hearing on

trial counsel's failure to call Gephart, Foster, and Muldrow as witnesses at trial.

Second, he contends that he was entitled to an evidentiary hearing on trial

counsel's failure to object to juror number ten continuing to sit as a juror. We

are not persuaded by the argument concerning the juror, but we hold that

defendant has presented enough information to warrant an evidentiary hearing

on his contention that trial counsel was ineffective in failing to call three

witnesses. We will briefly analyze both of those issues. Before doing so, we

will address the State's argument that our decision in 2017 constitutes law of the

case.

        A.    Our 2017 Decision

        The State argues that our prior decision denying defendant's PCR petition

is law of the case. We reject that argument. After our decision in 2017 was

issued, the Supreme Court granted defendant's petition for certification and

remanded the matter for oral argument. The State argues that the Supreme Court


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                                        7
did not vacate our opinion and, therefore, it remains law of the case. We do not

read the Supreme Court's order to support the State's position.

      There would be no point to remand the matter for oral argument if the

PCR court could not reconsider and potentially change its initial ruling.

Similarly, we are not bound by our 2017 decision because otherwise defendant's

right to appeal would be meaningless. See State v. K.P.S., 221 N.J. 266, 276-

77 (2015) (citation omitted) (alteration in original) (holding that the law of the

case doctrine is a "discretionary rule that calls on one court to balance the value

of judicial deference for the rulings of a coordinate [court] against factors that

bear on the pursuit of justice and, particularly, the search for truth"). Indeed, as

demonstrated by our remand, we have come to a different view.

      Understandably, the PCR judge relied on our prior affirmance to support

her decision denying defendant's petition after hearing oral argument in 2019.

Defendant had made arguments for an evidentiary hearing in 2015 and he had

even submitted certifications from Gephart, Foster, and Muldrow. In 2015,

however, defendant made numerous other arguments and he did not focus his

arguments on the need for an evidentiary hearing concerning the three potential

witnesses.   As we will discuss, we now see that issue differently.            That

refocusing illustrates the benefit of oral arguments on PCR petitions because, as


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                                         8
our Supreme Court has noted, such petitions are a defendant's last opportunity

for review in a system that strives for justice but is not infallible. See State v.

Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster, 184 N.J. 235, 249

(2005)).

       B.     The Juror

       During trial, juror number ten disclosed to the trial judge that one of her

friends was the cousin of Gephart, who was alleged to be part of the narcotics

network and who was a potential witness at the trial. As soon as that disclosure

occurred, the trial judge voir dired juror number ten. The juror explained that

she had not discussed her realization with any other member of the jury. She

also explained she could hear the anticipated testimony from Gephart and

evaluate it impartially. Furthermore, she stated that she believed she could

continue to serve as an impartial and fair juror. After allowing counsel to ask

follow-up questions, the judge determined that juror number ten could continue

as a juror. Defendant's trial counsel did not object to that ruling. Nor did the

trial counsel representing co-defendant McKinnon object. Ultimately, Gephart

did not testify at trial.

       In the 2015 opinion, the PCR judge extensively analyzed this issue and

determined that there was no prima facie showing of ineffective assistance of


                                                                           A-3540-18T4
                                        9
defendant's trial counsel for failing to object to juror number ten. After hearing

oral argument following the remand, the same judge made the same ruling.

Having conducted a de novo review, we agree and affirm the denial of

defendant's petition to the extent it relies on an argument concerning the failure

to object to juror number ten continuing on the jury.

      C.     The Failure to Call Three Witnesses

      A defendant is entitled to an evidentiary hearing on a PCR petition only

by establishing a prima facie showing of the grounds for the petition. R. 3:22-

10(b); State v. Rose, 458 N.J. Super. 610, 624 (App. Div. 2019). To establish a

claim of ineffective assistance of counsel, a defendant must satisfy a two part

test: (1) "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment," and (2) "the

deficient performance prejudiced the defense." Strickland v. Washington, 466

U.S. 668, 687 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland test).

      In 2014, in support of his petition, defendant submitted a report from an

investigator. The investigator had interviewed Gephart, Foster, and Muldrow.

The investigator summarized his conversations with each of those individuals

and reported that each was prepared to testify, that they had been available to


                                                                          A-3540-18T4
                                       10
testify at trial, had not been called as witnesses, but, if called, would have

testified that they never sold drugs for or worked at the direction of defendant.

Gephart, Foster, and Muldrow also signed statements certifying what they had

told the investigator. In addition, Muldrow signed an affidavit and Foster and

Gephart signed notarized letters.

      The PCR judge reasoned that those certifications were incredible given

the relationship that each of those witnesses had to defendant and given the

overwhelming contrary evidence that had been presented at trial.         We are

constrained to conclude that such a finding can only be made at an evidentiary

hearing. There may be reasons to question their credibility, but the ultimate

determination on their credibility must await the judge's consideration of their

live testimony. State v. Porter, 216 N.J. 343, 347 (2013) (quoting State v. Pyatt,

316 N.J. Super. 46, 51 (App. Div. 1998)) ("Assessment of credibility is the kind

of determination 'best made through an evidentiary proceeding with all its

explorative benefits, including the truth-revealing power which the opportunity

to cross-examine bestows.'"); State v. L.G.-M, 462 N.J. Super. 357, 367 (App.

Div. 2020).

      The State argues that trial counsel had a good strategic reason for not

calling any of these three witnesses. The record before us, however , does not


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                                       11
include evidence that defendant's trial counsel made such a strategic decision.

It is easy enough to present such evidence at an evidentiary hearing by calling

defense counsel and hearing his testimony. We do agree with the State that, if

defense counsel credibly testifies that he made a reasonable strategic decision

not to call any of these three witnesses, defendant would not be able to establish

that his counsel had been ineffective. In that regard, the law is well established

that trial counsel's reasonable strategic decisions cannot be grounds for granting

PCR. Nash, 212 N.J. at 542-43 (citing Strickland, 466 U.S. at 687); State v.

Hooper, 459 N.J. Super. 157, 176 (App. Div. 2019) (citations omitted).

      The PCR judge also found that defendant failed to establish the second

prong of the Strickland test – the prejudice prong. Without an evidentiary

hearing and an understanding of the significance and weight of what the three

witnesses might have contributed, consideration of the second prong of the

Strickland test was premature.

      In summary, we remand for a limited evidentiary hearing. The only issue

that warrants an evidentiary hearing is defendant's contention that his trial

counsel was ineffective in failing to call Gephart, Foster, and Muldrow. The

evidentiary hearing need not be an extensive hearing. If trial counsel testifies

he made a strategic decision – and that decision is shown to be reasonable – that


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                                       12
may be all that is necessary. In addition, it would not be difficult to hear the

testimony of Gephart, Foster, or Muldrow and assess their credibility and

whether such testimony supports a claim of ineffective assistance of counsel.

      Finally, we want to clarify that defendant has raised numerous arguments

concerning ineffective assistance of trial and appellate counsel. A de novo

review of the record establishes that he has failed to make a prima facie showing

on any grounds other than the alleged failure to call the three witnesses.

      Affirmed in part, reversed in part, and remanded for an evidentiary

hearing. We do not retain jurisdiction.




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