                                NOT FOR PUBLICATION WITHOUT THE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-5889-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PABLO J. GUZMAN, a/k/a JOSE
P. GUZMAN, PAUL GUZMAN,
PABLO P. PORTOLLIO, and
PABLO GUZMANJOSE,

     Defendant-Appellant.
______________________________

                    Submitted December 18, 2019 – Decided January 8, 2020

                    Before Judges Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 09-11-
                    2237.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Suzannah Brown, Designated Counsel, on
                    the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Carey J. Huff,
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals from a May 14, 2018 order denying his petition for

post-conviction relief (PCR) following an evidentiary hearing. We affirm,

substantially for the reasons set forth in Judge Vincent N. Falcetano, Jr.'s cogent

written opinion.

      We recite certain facts to lend context to the present appeal. In November

2009, a grand jury indicted defendant on two counts of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree

aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and fourth-

degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a).

      Following his trial in July 2010, a jury found defendant guilty of two

counts of aggravated assault against one victim and guilty of all weapons

charges. The jury also found defendant guilty of two counts of the lesser

included offenses of simple assault, N.J.S.A. 2C:12-1(a)(1) and (3).

      At sentencing in September 2010, the trial court granted the State's motion

for a mandatory extended term sentence on one count of second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1), based on defendant's prior


                                                                           A-5889-17T4
                                        2
conviction for aggravated assault with a weapon. After merging amended count

two into amended count one and counts four, five and six into count three, th e

court sentenced defendant to a fifteen-year prison term on the extended term

aggravated assault charge, subject to an eighty-five percent parole ineligibility

period under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed

concurrent prison terms on the remaining charges.

      We affirmed defendant's conviction and sentence on direct appeal, State

v. Guzman, No. A-2437-10 (App. Div. May 17, 2013) (Guzman I); his petition

for certification was denied. State v. Guzman, 216 N.J. 367 (2013). As we

stated in Guzman I:

            [T]he prosecution's evidence in this case was strong and
            not complicated. The victims testified that defendant
            pulled the large knife from behind his back and swung
            it toward them in the air as he appeared to mouth words
            implying he was ready and willing to use the knife
            against them. Defendant did not deny his use of the
            knife but claimed he did it in self-defense. His
            testimony was racked with inconsistency and illogical
            claims . . . . Moreover, he could not credibly explain
            his use of the knife when he admitted that no one had
            threatened him and there was no evidence that the
            victims were engaged in unlawful conduct or otherwise
            intended to do him harm.

            [Guzman I (slip op. at 14).]




                                                                         A-5889-17T4
                                       3
       In March 2015, defendant filed a timely pro se petition for PCR. In

August 2016, PCR counsel filed an amended verified petition. After conducting

oral argument on defendant's application in February 2017, Judge Falcetano

granted defendant a limited evidentiary hearing to address defendant's claims of

ineffective assistance of counsel.     Specifically, defendant was permitted to

question his trial attorney regarding: (1) whether trial counsel failed to

competently and adequately represent defendant concerning his request for self-

representation on the first day of trial; and (2) whether trial counsel failed to

properly prepare defendant to testify effectively and failed, in general, to prepare

for trial.

       Judge Falcetano held an evidentiary hearing on February 21, 2018.

Defendant testified at the hearing, with the assistance of an interpreter. His trial

attorney was permitted to testify via Skype because counsel relocated out-of-

state. Judge Falcetano found trial counsel's testimony was "clear, candid and

convincing," whereas defendant's testimony came across as "confused and his

statements were self-serving."

       On May 14, 2018, Judge Falcetano issued an order denying PCR relief to

defendant.   The judge concluded defendant's arguments were procedurally

barred under Rule 3:22-4, and also lacked merit.


                                                                            A-5889-17T4
                                         4
      On appeal, defendant raises the following arguments:

      POINT I

            THE PCR COURT ERRED IN RULING THAT
            [DEFENDANT'S] CLAIM THAT TRIAL COUNSEL
            WAS   INEFFECTIVE    FOR  FAILING   TO
            COMPETENTLY       AND      ADEQUATELY
            REPRESENT HIM ON HIS APPLICATION TO
            REPRESENT HIMSELF WAS PROCEDURALLY
            BARRED.

      POINT II

            THE PCR COURT ERRED IN DENYING
            [DEFENDANT'S] CLAIM THAT TRIAL COUNSEL
            WAS   INEFFECTIVE    FOR  FAILING   TO
            COMPETENTLY       AND      ADEQUATELY
            REPRESENT [DEFENDANT] IN CONNECTION
            WITH HIS APPLICATION TO REPRESENT
            HIMSELF.

      Our standard of review on a denial of a PCR is whether the judge's

findings of fact were supported by sufficient credible evidence. State v. Nunez-

Valdez, 200 N.J. 129, 141 (2009). Here, we are convinced Judge Falcetano's

findings are fully supported by the record.

      When petitioning for PCR, a defendant must establish, by a preponderance

of the credible evidence, that he or she is entitled to the requested relief. State

v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992).

To sustain that burden, the defendant must allege and articulate specific facts


                                                                           A-5889-17T4
                                        5
that "provide the court with an adequate basis on which to rest its decision."

State v. Mitchell, 126 N.J. 565, 579 (1992). Merely raising a claim for PCR

does not entitle a defendant to an evidentiary hearing, as a defendant "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).

      In order to establish a prima facie case of ineffective assistance of counsel,

a defendant is obliged to show not only the particular manner in which counsel 's

performance was deficient, but also that the deficiency prejudiced the

proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,

105 N.J. 42, 52 (1987). Under the first Strickland prong, the defendant must

demonstrate that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland, 466 U.S. at 687. Under the second Strickland prong, the defendant

must show "there is a reasonable probability that, but for counsel 's

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

Id. at 694. There is a strong presumption that counsel "rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment." Id. at 690.


                                                                            A-5889-17T4
                                         6
      To properly address defendant's ineffective assistance of counsel

argument, we first outline basic principles regarding self-representation.

      The Sixth Amendment of the United States Constitution gives a criminal

defendant the right to represent himself in a criminal trial, when he "voluntarily

and intelligently" elects to do so. State v. DuBois, 189 N.J. 454, 465 (2007)

(citing Faretta v. California, 422 U.S. 806, 816 (1975)). When a criminal

defendant requests to proceed pro se, the judge must "engage in a searching

inquiry" with him to determine whether he understands the implications of

the waiver. State v. Crisafi, 128 N.J. 499, 510 (1992). "The defendant 'should

be made aware of the dangers and disadvantages of self-representation, so that

the record will establish that he knows what he is doing and his choice is made

with eyes open.'" Ibid. (quoting Faretta, 422 U.S. at 835).

      However, the right to self-representation is not absolute. State v. Buhl,

269 N.J. Super. 344, 362-63 (App. Div. 1994). For example, "a defendant

cannot manipulate the system by wavering between assigned counsel and self-

representation." Id. at 362. "Moreover, like any other request for substitution

of an attorney, a defendant's decision to dismiss his lawyer and represent himself

must be exercised in a timely fashion. The right of self-representation is not a

license to disrupt the criminal calendar, or a trial in progress." Ibid.


                                                                           A-5889-17T4
                                         7
      Here, on the day of trial, after the trial judge announced he would begin

the jury selection process, defendant asked the court to discharge his counsel

and allow defendant to proceed pro se. Defendant mistakenly believed he was

offered a probationary sentence in return for a guilty plea, so both defense

counsel and the trial judge made it clear to him that the plea offer never included

probation. Defense counsel advised the court that his client had dismissed him

because he perceived defense counsel had lied to him about the offer.

       The trial judge denied the request for counsel to be relieved, stating the

case was ready for trial and that this was a "last minute" attempt by defendant

to "avoid the reality of a trial." The judge added, "[t]he paperwork that's been

provided in the court clearly indicate[s] what the plea offer was." The trial judge

reiterated he would proceed with jury selection, whereupon defense counsel

again informed the judge that defendant wanted him removed from the case.

Trial counsel advised that defendant was willing to proceed pro se and wanted

to address the court. The trial judge allowed this, at which point defendant

insisted, "I can fight the case." Defendant incorrectly stated, "[i]t is just two

charges, just two charges that I'm fighting. . . . This is two charges that they

accused of me and I didn't do it." Defendant also continued to maintain he had

been offered a probationary sentence in exchange for pleading guilty. The trial


                                                                           A-5889-17T4
                                        8
judge rejected defendant's representations, and reiterated there was no basis to

relieve counsel.

      At the conclusion of the first trial day, the trial judge stated he was aware

defendant and his attorney had engaged in additional discussions. Trial counsel

confirmed defendant agreed his attorney could continue to represent him. The

judge then inquired, "Mr. Guzman, you wish to have [trial counsel] continue as

your lawyer in this case?" and defendant responded, "[a]ll right. Yes."

      On appeal, defendant does not dispute he agreed to be represented by his

assigned counsel during the trial. Rather, he argues the trial judge erred in

finding trial counsel was not ineffective, even though trial counsel failed to

adequately pursue defendant's request for self-representation as the trial

commenced. We are not persuaded.

      At the PCR evidentiary hearing, Judge Falcetano focused on defendant's

request for self-representation and conducted the following exchange with

defendant:

             Q: Mr. Guzman when you talked to the [trial judge],
             you said you didn't want [trial counsel] to represent you
             anymore, is that correct?
             A: Yes, that's correct.
             Q: Did you want the [j]udge to let you represent
             yourself, or did you want him to appoint another
             attorney to represent you?
             A: Another attorney.

                                                                           A-5889-17T4
                                        9
              Q: You wanted a different attorney?
              A: Yes, different attorney.

      Judge Falcetano concluded from defendant's testimony that, "[e]ven

though the [trial] court had already denied defendant's request to dismiss trial

counsel, defendant also effectively withdrew his application [to dismiss his

attorney]."   Judge Falcetano determined defendant was unequivocal in his

response at the evidentiary hearing that he wanted the trial judge to appoint

another attorney to represent him. Thus, Judge Falcetano found defendant did

not establish trial counsel's performance was deficient for failing to pursue

defendant's request for self-representation. Further, he found defendant did not

show he was prejudiced by trial counsel's failure to pursue an application "that

defendant never intended to make."

      As previously stated, a defendant's right to represent himself is not

absolute. Buhl, 269 N.J. Super. at 362-63. Any request for self-representation

must be timely and cannot be used as a stalling tactic. Id. at 362. Here,

defendant waited until the first day of trial, when jury selection was about to

commence, to announce he wanted to represent himself. He then mistakenly

argued he had only two charges to "fight." Hours later, he confirmed to the trial

judge he wanted his trial attorney to continue to represent him. Under these

circumstances, we are satisfied not only that the trial judge properly exercised

                                                                         A-5889-17T4
                                      10
his discretion in denying defendant's belated request for self-representation, but

that Judge Falcetano correctly found defendant failed to prove his trial attorney

was ineffective.

      As Judge Falcetano properly found defendant did not satisfy either prong

of Strickland, we need not address defendant's argument that his ineffective

assistance of counsel claims were mistakenly barred under Rule 3:22-4(a).

      Affirmed.




                                                                          A-5889-17T4
                                       11
