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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4712-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

O.R.Q.,1

          Defendant-Appellant.


                   Submitted December 10, 2019 – Decided January 2, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 10-12-
                   2353.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, of
                   counsel and on the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Lisa Sarnoff
                   Gochman, of counsel and on the brief).


1
     We use initials to protect the victim's privacy.
PER CURIAM

      Defendant O.R.Q. appeals an order denying his petition for post-

conviction relief (PCR) without an evidentiary hearing. Because the PCR judge

correctly determined defendant's substantive claims lacked merit, we affirm.

      We incorporate by reference the facts and procedural history set forth in

our prior opinion. State v. O.R.Q., No. A-1656-13 (App. Div. Nov. 17, 2015)

(slip op. at 3, 7-8), certif. denied, 224 N.J. 282 (2016). In sum, the jury

convicted defendant of burglary, terroristic threats and criminal mischief, and

acquitted him of aggravated sexual assault, sexual assault and criminal restraint.

Id. at 2. The charges arose from a domestic dispute between defendant and his

estranged wife at the former marital residence. Id. at 3.

      The victim and defendant both testified at trial. Id. at 7-8. "According to

the victim, defendant rushed in, [after kicking open the front door,] grabbed her

by the hair and dragged her to the bedroom where he first threatened and then

sexually assaulted her." Id. at 7. Defendant provided a vastly different version

of the events, claiming the victim had invited him to the home to discuss money

issues and they engaged in consensual sex. Id. at 8.

      Pertinent to the present appeal, defendant "admitted pushing open the

door, which was already broken, with his foot."        Ibid.   On direct appeal,

                                                                           A-4712-17T4
                                        2
defendant challenged the trial judge's denial of his motions to suppress his

statement and for a new trial, and claimed his sentence was excessive. Id. at 2-

3. We rejected those contentions. Id. at 3-13.

      Defendant filed a pro se PCR petition asserting, verbatim:

             My Attorney did not put in a motion to dismiss my
             indictment based on DNA results report. My attorney
             did not use previous statement made by witness in trial
             that conflicts with testimony stated on trial stand. My
             attorney did not use crucial photo evidence and witness
             on defense list. The Attorney stated in his closing
             statement that the defendant is not guilty of all charges
             "except for the lesser charges" to the jury - which
             influenced the jury decision.

      Through PCR counsel, defendant filed an amended petition clarifying:

             Trial counsel was ineffective for the following reasons:
             failure to file a motion to dismiss the indictment based
             on DNA evidence; failure to impeach State witnesses
             with inconsistent statements; failure to use relevant
             photo evidence and witnesses on the defense list; and
             stating [i]n his closing statement that [defendant]
             should be convicted of lesser charges.

      PCR counsel filed a sixteen-page brief seeking an evidentiary hearing

based upon those contentions and incorporating by reference all issues raised in

petitioner's pro se petition. Notably, PCR counsel's brief stated trial counsel "in

his closing argument did not encourage the jury to find defendant guilty of a

lesser[-]included offense." (Emphasis added).


                                                                            A-4712-17T4
                                         3
      The PCR judge issued a written decision concluding defendant's claims

were procedurally and substantively barred. Finding defendant's petition did

not state any "new facts . . . that were unknown at the time of his direct

appeal[,]" the judge determined defendant's PCR claims could have been raised

on direct appeal and were, therefore, barred under Rule 3:22-4. The PCR judge

nonetheless thoroughly considered defendant's arguments on the merits, applied

the governing law, and concluded each was unavailing.

      Relevant here, the judge found trial "counsel specifically stated in closing

argument[] that [d]efendant should be convicted of the lesser[-]included crime

of criminal trespass rather than burglary."     (Emphasis added).      The judge

therefore found "[d]efendant's argument that defense counsel did not encourage

the jury to find defendant guilty of a lesser[-]included offense . . . without

merit." (Emphasis added).

      On appeal, defendant raises the following points for our consideration:

      POINT I     THE    PCR    COURT    ERRED    BY
                  PROCEDURALLY BARRING DEFENDANT'S
                  INEFFECTIVE-ASSISTANCE-OF-COUNSEL
                  CLAIMS.

      POINT II    THIS MATTER MUST BE REMANDED FOR A
                  NEW PCR HEARING BECAUSE PCR
                  COUNSEL    WAS   INEFFECTIVE   FOR
                  RAISING A CLAIM IN HIS BRIEF, THAT

                                                                           A-4712-17T4
                                        4
                  TRIAL COUNSEL WAS INEFFECTIVE FOR
                  NOT ENCOURAGING THE JURY TO FIND
                  DEFENDANT        GUILTY OF    LESSER-
                  INCLUDED OFFENSES, WHICH WAS
                  OPPOSITE TO A CLAIM RAISED IN THE PCR
                  PETITIONS.
                  (Not Raised Below)

      Regarding point I, we disagree with the PCR judge that defendant's claims

were barred procedurally. Because the issues raised in defendant's PCR petition

were not allegations of substantive legal errors contained completely within the

trial record, see State v. Quezada, 402 N.J. Super. 277, 280 (App. Div. 2008),

they were not appropriate for appellate review. See State v. Preciose, 129 N.J.

451, 460 (1992). Defendant's claims were better suited for a PCR proceeding

because, as the PCR judge later recognized, at least some of those issues

concerned trial strategy decisions. See State v. McDonald, 211 N.J. 4, 30

(2012).

      Defendant does not challenge the PCR judge's substantive determination

denying his petition. Issues not briefed are deemed waived. See Gormley v.

Wood-El, 218 N.J. 72, 95 n.8 (2014); Pressler & Verniero, Current N.J. Court

Rules, cmt. 5 on R. 2:6-2 (2020). Although we need not consider those issues

in our opinion, for the sake of completion we have reviewed the record in light

of the issues raised before the PCR judge. We affirm substantially for the


                                                                        A-4712-17T4
                                       5
reasons stated in the PCR judge's written decision, which cogently addressed

and rejected defendant's arguments on the merits. See R. 2:11-3(e)(2).

      We turn to defendant's claim he was denied the effective assistance of

PCR counsel, noting this argument was raised for the first time on appeal in the

absence of a previously-filed sworn statement "alleg[ing] facts sufficient to

demonstrate counsel's alleged substandard performance."             See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Instead, defendant

summarily argues PCR counsel was ineffective because the brief filed in support

of defendant's petition incorrectly argued trial counsel's summation urged the

jury not to find lesser-included offenses.

      In New Jersey, the right to the effective assistance of counsel extends to

PCR counsel. See State v. Rue, 175 N.J. 1, 18-19 (2002). PCR counsel must

"advance all of the legitimate arguments requested by the defendant that the

record will support," Rule 3:22-6(d), and "make the best available arguments in

support of them." Rue, 175 N.J. at 19. Even if PCR counsel deems the claims

to be meritless, counsel must "list such claims in the petition or amended petition

or incorporate them by reference." R. 3:22-6(d); see also State v. Webster, 187

N.J. 254, 257-58 (2006).




                                                                           A-4712-17T4
                                        6
      "The remedy for counsel's failure to meet th[ose] requirements . . . is a

new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div.

2010); see also Rue, 175 N.J. at 4. "This relief is not predicated upon a finding

of ineffective assistance of counsel under the relevant constitutional standard."2

Hicks, 411 N.J. Super. at 376.

      In Hicks, we determined PCR counsel failed to meet his obligations where

his performance "was limited to presenting the arguments identified by

defendant in his pro se submissions" in the absence of "evidence that counsel

conducted an independent evaluation of defendant's case to determine whether

there were other grounds to attack defendant's conviction." Id. at 374. Unlike

PCR counsel in Hicks, PCR counsel in the present matter filed an amended

petition echoing each argument raised in defendant's pro se petition. Counsel

filed a brief supporting those arguments, but erroneously claimed trial counsel

failed to argue for lesser-included charges.

      A defendant's ineffective assistance of counsel claim against PCR counsel

ordinarily should be raised in a second or subsequent PCR petition. See State



2
   See Strickland v. Washington, 466 U.S. 668, 687 (1984) (recognizing the
defendant must demonstrate: (1) the deficiency of his counsel's performance;
and (2) prejudice to his defense); see also State v. Fritz, 105 N.J. 42, 58 (1987)
(adopting the Strickland two-pronged analysis in New Jersey).
                                                                          A-4712-17T4
                                        7
v. Armour, 446 N.J. Super. 295, 317 (App. Div. 2016); see also R. 3:22-

12(a)(2)(c). Like ineffective assistance of counsel claims against trial counsel,

resolution of those claims against PCR counsel ordinarily involves matters

outside the record. See Armour, 446 N.J. Super. at 317. Accordingly, they are

better suited for a PCR petition. Ibid.

      Here, however, we are satisfied the record is sufficiently developed to

consider the claim on its merits. Having done so, we conclude defendant's

underlying claim challenging trial counsel's effectiveness lacks merit in view o f

defendant's admission at trial that he kicked open the door of the marital

residence. Because defendant's testimony established, at the very least, he

committed criminal trespass, 3 the trial judge soundly concluded trial counsel

"utilized a specific trial strategy" to minimize defendant's conduct. We discern

no reason to second-guess that reasonably-sound strategy. See State v. Chew,

179 N.J. 186, 206-13 (2004).

      Affirmed.




3
   Pursuant to N.J.S.A. 2C:17-3(a)(1), an individual is guilty of criminal mischief
if he or she "[p]urposely or knowingly damages tangible property of another
. . . ."
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