                                NOT FOR PUBLICATION WITHOUT THE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-4224-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MAURICE BRACK, a/k/a
MAURICE BARRACK,
MAURICE BLACK,
MAURICE BRACK,
MAURICE L. BRACK,
SOCCA BOPUM, and
SOCKA BOPA,

     Defendant-Appellant.
______________________________

                    Submitted November 14, 2018 – Decided December 21, 2018

                    Before Judges Hoffman and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 08-10-0851.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael J. Confusione, Designated Counsel;
                    William P. Welaj, on the brief).
              Michael A. Monahan, Acting Union County
              Prosecutor, attorney for respondent (Michelle J. Ghali,
              Special Deputy Attorney General/Acting Assistant
              Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Maurice Brack appeals from the Law Division's denial of his

petition for post-conviction relief (PCR) without an evidentiary hearing. In his

petition, defendant argued he had ineffective assistance of counsel because a

mistake of fact defense was not raised, and counsel failed to argue the jury's

verdict was against the weight of the evidence. He also argued that he should

not have been waived up to the Law Division because he was only fourteen years

old at the time he fatally beat the victim on August 18, 2006, and that the new

juvenile waiver statute, N.J.S.A. 2A:4A-26.1(c)(1), enacted on March 1, 2016,

should apply to his case. The PCR court disagreed and denied his petition ,

concluding:

              Inasmuch as there exists no grounds on which to grant
              petitioner post-conviction relief because his trial and/or
              appellate counsel was ineffective, petitioner's argument
              that P.L. 2015, c. 89 should be applied retroactively to
              his case must be rejected.

              While this PCR was pending, State in the Interest of
              J.F., 446 N.J. Super. 39 (App. Div. 2016) was decided.
              Judge Koblitz, for the court, found that P.L. 2015, c. 89
              was an ameliorative statute requiring retroactive
              application.    The J.F. court analyzed the recent

                                                                           A-4224-16T4
                                          2
            legislation under the well-known test announced by our
            Supreme Court in Gibbons v. Gibbons, 86 N.J. 515
            (1981).

            The Gibbons court ruled that retroactivity should be
            given:

            1.    To statutes about which the legislature either
                  expressly or impliedly expressed that the law be
                  retroactive;

            2.    To statutes which are ameliorative or curative; or

            3.    "[I]n the absence of a clear expression of
                  legislative intent that the statute is to be applied
                  prospectively, such considerations as the
                  expectations of the parties may warrant
                  retroactive application."

            [Gibbons, 86 N.J. at 522-23.]

            Applying those factors to this case, it is clear that there
            is no legislative expression regarding retroactivity.

      This appeal followed.     On appeal, defendant maintains that the new

juvenile waiver statute should be applied retroactively. We disagree and affirm.

      On appeal, defendant specifically argues:

            POINT I:

            THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S        PETITION   FOR    POST-
            CONVICTION RELIEF SINCE N.J.S.A. 2A:4A-
            26.1(c)(1), WHICH PROVIDES THAT A JUVENILE
            CANNOT BE WAIVED TO THE LAW DIVISION
            UNLESS THE STATE CAN ESTABLISH THE

                                                                          A-4224-16T4
                                        3
            JUVENILE WAS 15 YEARS OF AGE OR OLDER AT
            THE TIME OF THE DELINQUENT ACT, APPLIED
            RETROACTIVELY TO THE DEFENDANT'S CASE,
            IN WHICH HE WAS 14 YEARS OLD AT THE TIME
            OF THE OFFENSE IN QUESTION.

            A.    N.J.S.A.  2A:4A-26.1(c)(1) APPLIES
                  RETROACTIVELY TO THE PRESENT CASE
                  PURSUANT TO PREVAILING CASE LAW.

            B.    THE DOCTRINES OF FUNDAMENTAL
                  FAIRNESS AND MANIFEST INJUSTICE
                  REQUIRE A RETROACTIVE APPLICATION
                  OF N.J.S.A. 2A:4A-26.1(c)(1) TO THE
                  PRESENT CASE.


            POINT II:

            THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S    PETITION    FOR     POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING TO FULLY
            ADDRESS HIS CONTENTION THAT HE FAILED
            TO     RECEIVE     ADEQUATE       LEGAL
            REPRESENTATION FROM TRIAL COUNSEL AS A
            RESULT OF COUNSEL'S FAILURE TO ASSERT A
            MISTAKE OF FACT DEFENSE AT TRIAL.

                                        I.

      When defendant was fourteen years old, he was arrested and charged with

first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), in connection with the brutal,

gang-related murder of Rhykime Richardson, after violently assaulting him and

leaving him to die in a parking lot in Elizabeth. In addition, defendant was

                                                                          A-4224-16T4
                                        4
charged with third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d), as a juvenile. Following a probable cause hearing on

August 14, 2008, a prior judge waived jurisdiction from the Family Division to

the Law Division.

       A Miranda1 hearing was conducted before Judge Scott J. Moynihan, who

found defendant's statement admissible.        In October 2010, defendant was

convicted after a jury trial of first-degree murder, and acquitted as to the

weapons charges. He was sentenced to thirty-four years imprisonment with a

thirty-year parole disqualifier.    Defendant's conviction and sentence were

affirmed. State v. Brack, No. A-5479-10 (App. Div. Oct. 22, 2014), certif.

denied, 221 N.J. 287 (2015).

       On July 15, 2015, defendant filed a PCR petition. Following argument,

Judge Moynihan denied the petition as to the ineffective assistance of counsel

claims, and reserved decision as to whether the new juvenile waiver statute

applied retroactively in light of this court's decision in State in the Interest of

J.F., 446 N.J. Super. 39 (App. Div. 2016). In a comprehensive written opinion,

Judge Moynihan denied the petition without a hearing.


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                           A-4224-16T4
                                        5
      The record in this matter discloses that defendant, whose nickname was

"No Bullshit," was a member of a junior gang, "LOX," and had aspirations of

becoming a member of the Bloods. He hoped to be initiated into the gang within

a few weeks of the crimes, and stated that murdering someone by stabbing them

would have his status "am[p]ed" up, and would put him "up there towards the

Big Homies." Lasheem Lee was one of the so-called "Big Homies." Earlier in

the evening on the day of the murder, defendant attended Lee's birthday party,

hosted by his girlfriend, "Snake." The victim entered the courtyard where the

party was going on and punched Lee in the face, causing a bottle of wine to fall

out of his hand. Lee shouted, "[h]e just hit me," and yelled, "catch his ass," and

"go get that," referring to the victim as he fled.

      A crowd of fifty or more people, including defendant, chased after the

victim, who was running for his life. Leading the chase, defendant hopped over

a fence with others and stole bicycles to aid their pursuit through residential

backyards. The victim, being alarmed by the size of the crowd of fifty or sixty

people, yelled to one of the property owners, "I'm getting out of your backyard

but call the police please." After pursuing the victim, defendant ripped his pants

and lacerated his hand and leg. The victim ran away and fell down in a nearby

parking lot, where defendant prevented him from moving, while beating,

                                                                          A-4224-16T4
                                         6
stabbing, and "stomping him out," along with others, who slammed him with a

bike and told defendant, "he's all yours." The victim was "just curled up like a

baby," and "being beat while he was unconscious," according to defendant.

      The victim died from blunt force trauma to his head and from stab wounds

that punctured his lung and caused a "torrential" amount of blood to fill his lung,

according to the autopsy report.       Following the victim's death, defendant

referred to himself as "homicide," and he "took pride" in what he did.

                                        II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v.

Preciose, 129 N.J. 451, 459 (1992)). The process affords an adjudged criminal

defendant a "last chance to challenge the 'fairness and reliability of a criminal

verdict . . . .'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. Feaster,

184 N.J. 235, 249 (2005)); see also Rule 3:22-1. "Post-conviction relief is

neither a substitute for direct appeal, [Rule] 3:22-3, nor an opportunity to

relitigate cases already decided on the merits, [Rule] 3:22-5." Preciose, 129 N.J.

at 459; see also State v. Echols, 199 N.J. 344, 357 (2009).

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

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


                                                                            A-4224-16T4
                                         7
1999).   Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a prima facie

claim of ineffective assistance of counsel, material issues of disputed fact lie

outside the record, and resolution of the issues necessitates a hearing. R. 3:22-

10(b); State v. Porter, 216 N.J. 343, 354 (2013). A PCR court deciding whether

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

to a defendant to determine whether a defendant has established a prima facie

claim," and we review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion. Preciose, 129 N.J. at 463.

      "[W]here the [PCR] court does not hold an evidentiary hearing, we may

exercise de novo review over the factual inferences the trial court has drawn

from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373

(App. Div. 2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). Thus, if

warranted, we may "conduct a de novo review of both the factual findings and

legal conclusions of the PCR court." Ibid. (citing Harris, 181 N.J. at 421).

      A petition for PCR may be granted upon the following grounds:

            (a) Substantial denial in the conviction proceedings of
            defendant's rights under the Constitution of the United
            States or the Constitution or laws of the State of New
            Jersey;



                                                                          A-4224-16T4
                                        8
            (b) Lack of jurisdiction of the court to impose the
            judgment rendered upon defendant's conviction;

            (c) Imposition of sentence in excess of or otherwise
            not in accordance with the sentence authorized by law
            if raised together with other grounds cognizable under
            paragraph (a), (b), or (d) of this rule. Otherwise a claim
            alleging the imposition of sentence in excess of or
            otherwise not in accordance with the sentence
            authorized by law shall be filed pursuant to [Rule] 3:21-
            10(b)(5).

            (d) Any ground heretofore available as a basis for
            collateral attack upon a conviction by habeas corpus or
            any other common-law or statutory remedy.

            (e) A claim of ineffective assistance of counsel based
            on trial counsel's failure to file a direct appeal of the
            judgment of conviction and sentence upon defendant's
            timely request.

            [R. 3:22-2.]


                                       III.

      Defendant argues the PCR judge erred in failing to apply N.J.S.A. 2A:4A-

26.1(c)(1) retroactively pursuant to J.F., and consequently, his conviction must

be vacated and this matter should be remanded to the Family Court for an

adjudication. We disagree.

      In J.F., we undertook a detailed analysis of the revised waiver statute and

affirmed the trial court's denial of a waiver request involving a murder allegedly


                                                                          A-4224-16T4
                                        9
committed by a fourteen-year-old minor. 446 N.J. Super. at 41-42. The trial

court in J.F. found, "strong and compelling prospects for rehabilitation

substantially outweigh[ed] the standard of the attenuated argument of deterrence

in the case." Id. at 51. The trial judge made the waiver decision on August 13,

2015, three days before the Governor signed the revised waiver statute into law.

Id. at 52. The trial judge did not apply the new statute that became effective on

March 1, 2016. Id. at 52-53.

      We noted "[u]nder the revised waiver statute, a juvenile cannot be waived

to the Law Division unless the State can establish that 'the juvenile was [fifteen]

years of age or older at the time of the delinquent act.'" Ibid. (citing N.J.S.A.

2A:4A-26.1(c)(1)).

      We concluded the revised statute applied to J.F. because the new statute:

            ameliorate[d] the punitive sentencing previously meted
            out to adolescent offenders after waiver.         The
            legislative action was also intended to address the
            treatment needs of children. The increase in the
            minimum waiver age is part of that emphasis on
            rehabilitation rather than punishment, a part of the
            effort to ensure that children do not become prey to
            adult inmates nor suffer the many societal
            consequences of an adult criminal record.

            [Id. at 55 (footnotes omitted).]




                                                                           A-4224-16T4
                                       10
      Furthermore, we noted "[t]he State ma[de] no argument that it would

suffer an 'unconstitutional interference with a vested right or a manifest

injustice.'" Id. at 56 (quoting Ardan v. Board of Review, 444 N.J. Super. 576,

589 (App. Div. 2016)). "Retroactively applying the age requirement of the

revised waiver statute would impose no 'unfairness [or] inequity.'" Id. at 56-57

(alteration in original) (quoting Oberhand v. Director, Div. of Taxation, 193 N.J.

558, 572 (2008)).

      Here, Judge Moynihan correctly found that: "The difference between this

case and J.F. is that J.F's waiver hearing was decided on August 13, 2015, three

days after the enactment of P.L. 2015, c.89. . . . [and that] J.F. had not been

adjudicated, nor his disposition entered, prior to the passage of the new law."

(footnote omitted).

      Brack was sentenced prior to the enactment of the new law thus

distinguishing his case from the holding in J.F. "Generally, newly enacted laws

are applied prospectively." Johnson v. Roselle EZ Quick LLC, 226 N.J. 370,

387 (2016). The presumption can only be overcome by showing the Legislature

intended retroactive application.

      In Ardan, our Court reiterated settled rules of statutory construction

"based on our long-held notions of fairness and due process." 231 N.J. at 610


                                                                          A-4224-16T4
                                       11
(quoting James v. N.J. Mfrs. Co., 216 N.J. 552, 563 (2014)). As instructed in

Ardan, "[w]e consider (1) 'whether the Legislature intended to give the statute

retroactive application' and (2) whether retroactive application 'will result in

either an unconstitutional interference with vested rights or a manifest

injustice.'" Ibid. (quoting James, 216 N.J. at 563).

      For these reasons we affirm Judge Moynihan's decision not to

retroactively apply N.J.S.A. 2A:4A-26.1(c)(1).         To the extent we have not

addressed defendant's other arguments for the retroactive application of N.J.S.A.

2A:4A-26.1(c)(1), it is because those arguments are without sufficient merit to

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

                                       IV.

      Turning to defendant's ineffective assistance of counsel claim, a two-part

test must be satisfied by demonstrating that: (1) counsel's performance was

deficient, and (2) the deficient performance actually prejudiced the accused's

defense. Strickland v. Washington, 466 U.S. 668, 682 (1984); see also State v.

Fritz, 105 N.J. 42, 58 (1987).

      In reviewing ineffective assistance claims, courts apply a strong

presumption that a defendant's trial counsel "rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional


                                                                         A-4224-16T4
                                       12
judgment." Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of

trial strategy' will not serve to ground a constitutional claim of inadequacy . . .

." Fritz, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963)).

"To establish a prima facie claim of ineffective assistance of counsel, a

defendant must demonstrate a reasonable likelihood of succeeding under" the

Strickland/Fritz test. Preciose, 129 N.J. at 463. To demonstrate the likelihood

of succeeding under the Strickland/Fritz test, a defendant "must do more than

make bald assertions . . . . [and] must allege facts sufficient to demonstrate

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

      Defendant contends that his trial counsel erred by failing "to raise [a]

mistake of fact doctrine" defense and jury charge because defendant did not

intend to kill the victim, but only to "rough him up." N.J.S.A. 2C:2-4 defines

mistake of fact in relevant part as follows:

            a. Ignorance or mistake as to a matter of fact or law is
            a defense if the defendant reasonably arrived at the
            conclusion underlying the mistake and:

            (1) It negatives the culpable mental state required to
            establish the offense; or

            (2) The law provides that the state of mind established
            by such ignorance or mistake constitutes a defense.

            b. Although ignorance or mistake would otherwise
            afford a defense to the offense charged, the defense is

                                                                           A-4224-16T4
                                       13
             not available if the defendant would be guilty of another
             offense had the situation been as he supposed. In such
             case, however, the ignorance or mistake of the
             defendant shall reduce the grade and degree of the
             offense of which he may be convicted to those of the
             offense of which he would be guilty had the situation
             been as he supposed.

      As noted by the judge, a mistake of fact defense is commonly used "when

a defendant asserts self-defense, defense of others or defense of property." In

this case, the facts are a far cry from the statutory intent because "no one could

reasonably believe [defendant's] actions were necessary to protect Lee." The

victim "posed no threat after he ran from the group." After fleeing, he was

thrown to the ground, and "stabbed and beaten with deadly force."

      Based on our review of the record, we are satisfied that defendant's claim

of ineffective assistance of trial counsel does not fall below the requisite

standard under either prong of the Strickland/Fritz test.

      We also find no merit to defendant's claim that he was denied effective

assistance of appellate counsel for failing to argue that the verdict was against

the weight of the evidence. Procedurally, a motion for a new trial was not made

as required by Rule 2:10-1, therefore, the argument could not have been raised

on appeal.




                                                                          A-4224-16T4
                                       14
      Here, we conclude that defendant failed to make a prima facie showing of

ineffective assistance of counsel under the Strickland/Fritz test, and there was

no abuse of discretion in the denial of his PCR petition without an evidentiary

hearing.

      Affirmed.




                                                                        A-4224-16T4
                                      15
