                                NOT FOR PUBLICATION WITHOUT THE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-1393-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANCIS J. PRETO,

     Defendant-Appellant.
__________________________

                    Submitted February 24, 2020 – Decided June 10, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment Nos. 11-05-0884
                    and 08-10-1541.

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

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; William Kyle Meighan,
                    Senior Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant, Francis Preto, appeals from the denial of his petition for post -

conviction relief (PCR). In 2012, he was convicted at trial for conspiring and

attempting to kill his wife and for conspiring to kill a fellow county jail inmate

who had reported the murder plot to authorities. Defendant contends his trial

counsel rendered ineffective assistance by not calling certain witnesses, by not

effectively cross-examining his wife, and by not communicating with him about

the case before trial.

      After reviewing the record in light of the applicable legal principles, we

reject defendant's contentions and affirm the denial of his PCR petition

substantially for the reasons set forth by Judge Guy Ryan in a thorough and well-

reasoned thirty-two-page opinion. As the PCR court aptly noted, defendant

failed to support his contentions with competent proofs that would warrant an

evidentiary hearing, much less a new trial. We conclude that defendant has not

established that his trial counsel's performance was constitutionally deficient or

that any potential ineffective assistance had a reasonable probability of changing

the jury verdict. See generally Strickland v. Washington, 466 U.S. 668 (1984)

(establishing a two-part test for addressing ineffective assistance of counsel

claims).




                                                                          A-1393-18T1
                                        2
                                        I.

      Defendant was initially tried in early 2011. The first trial resulted in a

hung jury and mistrial.    When he was retried in the fall of 2012, he was

represented by a different attorney than the one who represented him at the first

trial. This time, the jury found defendant guilty of first-degree conspiracy to

murder his wife, first-degree attempted murder of his wife, and first-degree

conspiracy to murder Timothy Milton.          The jury acquitted defendant of

attempting to murder Milton. Defendant was sentenced to an aggregate term of

16 years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This

sentence runs consecutively to the sentence imposed on an unrelated prior

conviction.

      On direct appeal, we affirmed the trial convictions but remanded the

matter to correct the calculation of gap-time and jail credits. State v. Preto, No.

A-4212-12 (App. Div. July 8, 2016) (slip op. at 16). The Supreme Court denied

certification. State v. Preto, 228 N.J. 483 (2017).

      Defendant thereafter filed a pro se petition for post-conviction relief.

Judge Ryan heard oral argument and thereafter issued a written opinion denying

defendant's PCR petition without an evidentiary hearing.          Defendant now

appeals from that decision.


                                                                           A-1393-18T1
                                        3
                                       II.

      The facts adduced by the State at trial are recounted in our prior opinion

and need not be repeated at length in this opinion. It is sufficient to note that

the State presented testimony and electronically recorded conversations to prove

that defendant conspired and attempted to murder both his ex-wife and a fellow

inmate at the Ocean County Jail, Milton.       While in jail, defendant sought

Milton's assistance in a plot to murder Ms. Preto before she could divorce

defendant. When defendant learned that Milton reported the murder plot to the

authorities, he attempted to hire other individuals to kill Milton. The defense

argued that defendant's threats were mere puffery and were made in response to

a jailhouse culture that required him to act tough.

                                       III.

      Defendant presents the following contentions for our consideration: 1

      POINT I

            AS DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE OF COUNSEL, HE WAS ENTITLED
            TO POST-CONVICTION RELIEF.

                  (1) Trial counsel failed to ensure the
                  exculpatory testimony of Harry Reilly.


1
  Defendant made several other arguments before the PCR court that he does
not raise on this appeal.
                                                                         A-1393-18T1
                                        4
                   (2) Trial counsel's failure to effectively
                   communicate with her client prejudiced his
                   right to effective legal representation.

                   (3) Trial counsel failed to effectively cross-
                   examine defendant's wife.

                   (4) Trial counsel failed to present the
                   exculpatory testimony of Joseph Collins
                   (aka "Joe Green").

                   (5) Trial counsel's cumulative errors
                   denied her client effective legal
                   representation.

      POINT II

            AS THERE ARE GENUINE ISSUES OF MATERIAL
            FACTS IN DISPUTE, AN EVIDENTIARY HEARING
            WAS REQUIRED.

                                        IV.

      We begin our analysis by acknowledging the legal principles that govern

this appeal. Post-conviction relief serves the same function as a federal writ of

habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). A petitioner must

establish grounds for relief by a preponderance of the evidence.        State v.

Mitchell, 126 N.J. 565, 579 (1992) (citing State v. Marshall, 244 N.J. Super. 60,

69 (Law Div. 1990)). To satisfy this burden, the petitioner must allege specific

facts, "which, if believed, would provide the court with an adequate basis on

which to rest its decision." Ibid.

                                                                         A-1393-18T1
                                         5
      Defendant claims his trial counsel rendered constitutionally deficient

representation. Both the Sixth Amendment of the United States Constitution

and Article 1, paragraph 10 of the New Jersey Constitution guarantee the right

to effective assistance of counsel at all stages of criminal proceedings.

Strickland, 466 U.S. at 686 (citing McMann v. Richardson, 397 U.S. 759, 771

n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish an ineffective

assistance claim, a defendant must meet the two-part test articulated in

Strickland. Fritz, 105 N.J. at 58. "First, the defendant must show that counsel's

performance was deficient. . . . Second, the defendant must show that the

deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.

      To satisfy the first prong of the Strickland test, a defendant must show

"that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687.

Reviewing courts indulge in a "strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance." Id. at 689. The

fact that a trial strategy fails to obtain for a defendant the optimal outcome is

insufficient to show that counsel was ineffective. State v. DiFrisco, 174 N.J.

195, 220 (2002) (citing State v. Bey, 161 N.J. 233, 251 (1999)).




                                                                         A-1393-18T1
                                       6
      The second prong of the Strickland test requires the defendant to show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently,

counsel's errors must create a "reasonable probability" that the outcome of the

proceedings would have been different than if counsel had not made the errors.

Id. at 694. This prong is particularly demanding. "The error committed must

be so serious as to undermine the court's confidence in the jury's verdict or the

result reached." State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v.

Castagna, 187 N.J. 293, 315 (2006)).

      Short of obtaining immediate relief, a defendant may prove that an

evidentiary hearing is warranted to develop the factual record in connection with

his or her ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR

court should grant an evidentiary hearing when a defendant is able to prove a

prima facie case of ineffective assistance of counsel, there are material issues of

disputed fact that must be resolved with evidence outside of the record, and the

hearing is necessary to resolve the claims for relief. R. 3:22-10(b). To meet the

burden of proving a prima facie case, a defendant must show a reasonable

likelihood of success under the Strickland test. Preciose, 129 N.J. at 463.

"[C]ourts should view the facts in the light most favorable to a defendant to


                                                                           A-1393-18T1
                                        7
determine whether a defendant has established a prima facie claim." Id. at 462–

63.

        Importantly for purposes of this appeal, "[i]n order to establish a prima

facie claim, a petitioner must do more than make bald assertions that [he or she]

was denied the effective assistance of counsel." State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). The petitioner must allege specific facts

sufficient to support a prima facie claim. Id. at 168 (citing Mitchell, 126 N.J. at

589).    Furthermore, the petitioner must present these facts in the form of

admissible evidence. In other words, the relevant facts must be shown through

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

the person making the certification." Id. at 170; see also R. 3:22-10(c) ("Any

factual assertion that provides the predicate for a claim of relief must be made

by an affidavit or certification . . . and based upon personal knowledge of t he

declarant before the court may grant an evidentiary hearing.").

        As a general proposition, we defer to a PCR court's factual findings "when

supported by adequate, substantial and credible evidence." State v. Harris, 181

N.J. 391, 415 (2004) (quoting Toll Bros v. Twp. of W. Windsor, 173 N.J. 502,

549 (2002)). However, when the trial court does not hold an evidentiary hearing,

we "may exercise de novo review over the factual inferences drawn from the


                                                                           A-1393-18T1
                                         8
documentary record." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284,

291 n.4 (3d Cir. 1991)). Similarly, we review de novo the PCR court's legal

conclusions. State v. Nash, 212 N.J. 518, 540–41 (2013) (citing Harris, 181 N.J.

at 415–16).

                                       V.

                                       A.

      Defendant argues his trial counsel was ineffective for failing to call Harry

Reilly as a witness. Defendant claims Reilly would have provided testimony

supporting defendant's theory that he was merely "talking tough" when he was

discussing murdering his wife and Milton.       Additionally, defendant argues

Reilly would have testified that the conspiracy between himself, defendant, and

Milton was to steal "WaveRunners" 2 from Ms. Preto, not to kill her.

      While Reilly was on defendant's witness list, counsel and the trial court

were unable to locate Reilly during trial after corresponding with the Ocean

County Jail and the probation department. Defendant contends his trial counsel

should have pursued Reilly's whereabouts more aggressively. We note that




2
   "WaveRunner" is a trademarked name for a type of personal watercraft
produced by Yamaha Motor Corporation.
                                                                          A-1393-18T1
                                        9
defendant was unable to locate Reilly while preparing his PCR and

acknowledges he does not even know if Reilly is still alive.

       We reject defendant's PCR claim as nothing more than a "bald

assertion[]." Cummings, 321 N.J. Super. at 170. As we have noted, a defendant

must support the factual assertions with competent proofs, i.e., "affidavit[s] or

certification[s] pursuant to Rule 1:4-4 and based upon personal knowledge of

the declarant." R. 3:22-10(c). Here, defendant failed to supply an affidavit or

certification made by himself, his first trial attorney, or Reilly summarizing the

testimony Reilly would have provided had he been called as a witness.

      Defendant's explanation at oral argument is not comparable to an affidavit

or certification pursuant to Rule 1:4-4. Certifications or affidavits submitted

pursuant to Rule 1:4-4(b) subject the declarant to punishment if their statements

are willfully false. Defendant was not under oath when he spoke to the court

concerning Reilly's potential testimony. Accordingly, the PCR court correctly

determined that defendant's contentions concerning Reilly are unsupported in

the record.   Additionally, Judge Ryan found it unlikely Reilly could have

provided testimony supporting defendant's "talking tough" defense because the

trial court had precluded defendant from calling other witnesses to provide

similar testimony and that decision was affirmed on direct appeal.


                                                                          A-1393-18T1
                                       10
       Even putting aside that defendant's arguments with respect to Reilly are

bald assertions, defendant's own electronically recorded statements would have

contradicted Reilly's hypothesized testimony.       In a jailhouse conversation

recorded on July 2, 2008, for example, defendant and Milton discussed the

details of the plan to kill Ms. Preto, including Milton's payment for killing Ms.

Preto and the logistics of dumping her body. Defendant told Milton he would

pay $10,000 for Milton "to take her out." At no point in any of the recorded

conversations between defendant and Milton does anyone refer to a scheme to

steal personal watercraft.

      We add that in order to succeed on an ineffective assistance claim based

on trial counsel's failure to call a witness; a defendant must "overcome the

presumption that, under the circumstances," the failure to call the witness "might

be considered sound trial strategy." State v. Arthur, 184 N.J. 307, 319 (2005)

(quoting Strickland, 466 U.S. at 689). Determining which witnesses to call to

the stand is an "an art." Id. at 321 (quoting Strickland, 466 U.S. at 693).

            A trial attorney must consider what testimony a witness
            can be expected to give, whether the witness's
            testimony will be subject to effective impeachment by
            prior inconsistent statements or other means, whether
            the witness is likely to contradict the testimony of other
            witnesses the attorney intends to present and thereby
            undermine their credibility, whether the trier of fact is


                                                                          A-1393-18T1
                                       11
            likely to find the witness credible, and a variety of other
            tangible and intangible factors.

            [Id. at 320–21.]

Given the difficulty inherent in selecting witnesses, a court's review of counsel's

decision must be "highly deferential." Id. at 321 (quoting Strickland, 466 U.S.

at 689).

      In this instance, in exercising her professional judgment, defendant's trial

counsel was permitted, if not obligated, to consider the credibility of Reilly's

testimony in light of the other evidence presented at trial.        Id. at 320–21.

Defendant explained at oral argument that in preparing for defendant's second

trial, his second trial counsel read all the materials supplied by defendant's first

trial counsel.   Counsel's decision to not make further effort to locate and

subpoena Reilly was thus made with an understanding that Reilly would have

provided testimony contradicted by defendant's own admissions, reducing

Reilly's credibility and the value of his testimony. Ibid. In these circumstances,

we agree with the PCR court that defendant has provided no basis for concluding

that counsel's performance with respect to this potential witness was

unreasonable or otherwise constitutionally deficient.

      Relatedly, in assessing the potential impact of an absent witness, we must

consider the defendant's overall trial strategy. See State v. L.A., 433 N.J. Super.

                                                                            A-1393-18T1
                                        12
1, 16 (App. Div. 2013) (noting that the importance of an absent witness must be

judged in light of the "interplay of the uncalled witness[] with the actual defense

witnesses called" (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir.

1996))). Throughout trial, defendant argued his threats were puffery and the

product of the "talking tough" culture in the jail.     Potential testimony from

Reilly that defendant was planning to steal personal watercraft from his ex-wife

would not have supported defendant's "talking tough" theory and could have

distracted the jury from counsel's principal defense strategy.

      In sum, given the uncertainty concerning Reilly's testimony, as well as

Reilly's criminal record and history of drug addiction, we agree with the PCR

court's conclusion that it was reasonable that counsel did not further pursue

Reilly's whereabouts.

                                        B.

      Defendant next asserts that his trial counsel was ineffective for failing to

call Joseph Collins as a witness. Defendant claims Collins was familiar with

defendant's case and could have provided helpful testimony.       Collins, who is

reputed to be an upper echelon gang member, testified in a Rule 104 hearing

after which defendant and trial counsel agreed not to call him as a witness at

trial. Defendant now contends his counsel rendered ineffective assistance by


                                                                           A-1393-18T1
                                       13
talking him out of calling Collins as a witness. Specifically, defendant contends

that Collins's gang affiliation should not have been a sufficient reason for

counsel to convince defendant to not have Collins testify.

      As we have noted, a PCR court's review of counsel's decision not to call

a witness is "highly deferential." Arthur, 184 N.J. at 321 (quoting Strickland,

466 U.S. at 689). Applying that deferential standard, we agree with Judge

Ryan's conclusion that trial counsel was not ineffective in determining not to

call Collins as a trial witness. Judge Ryan aptly noted that Collins's testimony

was likely in the same vein as other inadmissible testimony relating to

defendant's "talking tough" defense. Although Collins may have been able to

provide some admissible testimony concerning his encounters with defendant

while they were both in prison, the PCR court appropriately deferred to trial

counsel's strategic decision not to call Collins as a witness.

      We conclude it was hardly unreasonable for trial counsel to determine that

it was in her client's interest to avoid calling a witness with a gang affiliation 3

and whose testimony would alert the jury that defendant had previously served




3
 We note that defendant asserts that Collins's status as an "upper echelon" gang
member somehow would have increased his credibility.
                                                                            A-1393-18T1
                                        14
time in State Prison. Accordingly, the PCR court properly refused to second

guess trial counsel.

      Furthermore, we hold it is not reasonably probable that Collins's testimony

would have changed the jury's determination that defendant conspired to murder

Milton. Strickland, 466 U.S. at 694. It bears emphasis that the State played for

the jury a recorded conversation in which defendant arranged to have Maurice

Pearce murder Milton. During the recorded conversation with Pearce, defendant

told Pearce he could supply him with a gun. The two men discussed the different

guns Pearce could use. Defendant concluded that Pearce could use a lower

caliber gun so long as he "finish[ed] [Milton] off, two to the head." They also

discussed the clothes Pearce would wear, that Pearce should wear two gloves

during the killing, and how he would leave the scene after killing Milton.

Defendant provided Pearce with both Milton's address and his father's contact

information, including his street address and telephone number.         Collins's

testimony would not have undermined the incriminating value of this recorded

conversation in any material manner.

                                       C.

      Defendant next contends his trial counsel was ineffective for failing to

communicate with him prior to trial.   Defendant claims that he had only two or


                                                                         A-1393-18T1
                                       15
three conversations with an investigator acting on counsel's behalf. Defendant

hypothesizes that additional communication before trial would have provi ded

the "extra push necessary to win an acquittal."

      As with his claim concerning Reilly's testimony, defendant has failed to

support this ineffective assistance claim with the necessary competent proofs.

Defendant has not submitted an affidavit or certification establishing the extent

to which counsel and defendant communicated prior to trial and establishing that

additional preparation would have affected the outcome of the trial. Defendant's

claim that counsel failed to communicate with him prior to trial, therefore, is yet

another "bald assertion[]" unsupported by the record. Cummings, 321 N.J.

Super. at 170. Furthermore, as the PCR court noted, defendant never raised to

the trial judge any concern with having insufficient time to prepare with his

attorney regarding any aspect of his trial strategy. We therefore agree with the

PCR court that defendant has failed to establish either prong of the

Strickland/Fritz test with respect to his pretrial interactions with defense counsel

and her trial preparation.

                                        D.

      We turn next to defendant's contention that his trial counsel was

ineffective in the manner in which she cross-examined his wife. Defendant


                                                                            A-1393-18T1
                                        16
acknowledges that counsel extensively cross-examined his wife concerning their

personal history and her potential bias in view of the divorce proceedings.

Defendant nonetheless claims counsel should have used the cross-examination

to put his marriage in a more positive light by eliciting testimony that he was a

"good husband." The PCR court found this argument to be absurd given that

defendant was on trial for attempting to murder his wife. We agree.

      Like his other ineffective assistance claims, defendant's supposition that

his wife would have provided positive testimony concerning their relationship

is a "bald assertion[]" unsupported in the record. Cummings, 321 N.J. Super. at

170. Defendant failed to supply an affidavit or certification in compliance with

Rule 3:22-10(c) detailing the potential testimony his wife may have given

concerning their marriage.

      Additionally, defendant has utterly failed to overcome the strong

presumption that counsel's approach to cross-examining his wife was a "sound

trial strategy." Strickland, 466 U.S. at 689. The record amply supports the trial

court's finding that counsel confronted defendant's wife with prior inconsistent

statements and the financial benefit she stood to reap if petitioner were to be

convicted of attempted murder and incarcerated. Judge Ryan concluded counsel

chose a far more effective strategy of cross-examination by focusing on the


                                                                         A-1393-18T1
                                      17
witness's financial incentive to have defendant convicted rather than trying to

elicit from her that defendant had been a good and loving husband. We conclude

that counsel's cross examination of his wife falls within the range of reasonable

professional assistance. Ibid.

      We add with respect to the second Strickland prong that it is highly

unlikely, much less reasonably probable, that any favorable testimony about the

marriage elicited from defendant's wife would have changed the outcome of the

trial, id. at 694, especially given the recorded conversations played to the jury

in which defendant is heard conspiring to murder her.

                                       E.

      We next address defendant's contention that even if trial counsel did not

commit any single error at trial that by itself warrants relief, she committed

multiple errors that, viewed cumulatively, are sufficient to entitle him a new

trial. See State v. Jenewicz, 193 N.J. 440, 473 (2008) (recognizing that "even

when an individual error or series of errors does not rise to reversible error,

when considered in combination, their cumulative effect can cast sufficient

doubt on a verdict to require reversal"). We hold that defendant has failed to

establish that counsel committed any error at all in discharging her professional




                                                                         A-1393-18T1
                                      18
responsibilities, much less multiple errors whose cumulative effect would

probably have changed the verdict.

      Finally, defendant contends there are several factual issues in material

dispute that lie outside the record, thereby warranting an evidentiary hearing.

We agree with the trial court that defendant has failed to establish any of the

requisite elements supporting the grant of an evidentiary hearing. R. 3:22-10(b).

Notably, defendant has failed to support his PCR with any certifications or

affidavits, rendering many of his arguments mere "bald assertions." Cummings,

321 N.J. Super. at 170. Without competent proofs, defendant has not established

there are material issues of disputed fact that lie outside the record.

Furthermore, even viewing the facts in the light most favorable to defendant, he

has failed to show a reasonable likelihood of success under the Strickland test.

Preciose, 129 N.J. at 463.    We conclude the present evidentiary record is

sufficient to deny defendant's petition for PCR. Accordingly, the PCR court did

not err in denying defendant's request for an evidentiary hearing.

      To the extent we have not addressed them, any additional arguments

raised by defendant lack sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2).

      Affirmed.


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                                      19
