                                NOT FOR PUBLICATION WITHOUT THE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-2125-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STANLEY CLIFF SMITH, a/k/a
JERRY JOHNSON,

     Defendant-Appellant.
___________________________

                    Submitted October 31, 2018 – Decided November 26, 2018

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 02-10-1409.

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

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Monica A. Martini, Assistant
                    Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Stanley Cliff Smith appeals from a September 6, 2016 order

denying his petition for post-conviction relief (PCR) after a limited evidentiary

hearing conducted on July 8, 2016. 1 We affirm.

      Defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(b),

second-degree possession of a weapon for an unlawful purpose, N.J.S.A 2C:39-

4(d), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).

The sentencing judge merged the gun possession charges into the murder charge,

and imposed a thirty-year sentence with a thirty-year parole disqualifier.

       Defendant filed a direct appeal, and we affirmed. State v. Smith, No.

A-2439-07 (App. Div. Aug. 4, 2010). The New Jersey Supreme Court granted

defendant's petition for certification, and affirmed the conviction on October 25,

2012. State v. Smith, 212 N.J. 365 (2012). 2




1
  The evidentiary hearing was limited to whether certain individuals were proper
alibi witnesses and, if so, whether defendant's trial counsel failed to investigate
either individual as an alibi witness to testify at trial.
2
   On March 4, 2013, the United States Supreme Court denied defendant's
petition.
                                                                           A-2125-16T4
                                        2
         Defendant filed a pro se PCR petition on July 2, 2012.       The judge

reviewing this first PCR petition denied the application because defendant's

direct appeal was still pending.

         On May 10, 2013, defendant filed a new pro se PCR petition. The PCR

judge granted defendant's request for an evidentiary hearing limited to potential

alibi witnesses. At the evidentiary hearing, the court heard testimony from

defendant, defendant's trial counsel, and two potential alibi witnesses.

         In a thorough and comprehensive forty-six page written decision, Judge

Timothy P. Lydon denied defendant's PCR application. We need not repeat the

judge's detailed recitation of the testimony from the trial and PCR evidentiary

hearing.

         On appeal, defendant raises the following arguments in his counseled

brief:

POINT I

              DEFENDANT'S PCR PETITION SHOULD NOT
              HAVE BEEN TIME BARRED.

POINT II

              DEFENDANT'S    CONVICTION    MUST   BE
              REVERSED BECAUSE TRIAL COUNSEL WAS
              INEFFECTIVE FOR FAILING TO INVESTIGATE



                                                                           A-2125-16T4
                                        3
              P.J.3 AND S.F. AS EXCULPATORY WITNESSES
              AND/OR HAVE THEM TESTIFY.

POINT III

              TRIAL COUNSEL EFFECTIVELY                      INDUCED
              DEFENDANT NOT TO TESTIFY.

POINT IV

              THIS MATTER MUST BE REMANDED FOR AN
              EVIDENTIARY      HEARING       BECAUSE
              DEFENDANT ESTABLISHED A PRIMA FACIE
              CASE     OF     PRETRIAL      COUNSEL'S
              INEFFECTIVENESS FOR NOT INFORMING HIM
              THAT HE HAD THE RIGHT TO TESTIFY AT THE
              MIRANDA4 HEARING.

POINT V

              THIS MATTER MUST BE REMANDED FOR
              FINDINGS OF FACT AND CONCLUSIONS OF
              LAW REGARDING DEFENDANT'S CLAIM THAT
              TRIAL COUNSEL WAS INEFFECTIVE FOR
              FAILING TO INVESTIGATE D.S. AND J.R.
              AND/OR    HAVE   THEM     TESTIFY        AS
              EXCULPATORY WITNESSES. (Not raised below).

        In his pro se supplemental brief, defendant raises the following arguments:

POINT I

              THE TRIAL COURT ERRED IN DENYING THE
              DEFENDANT'S   PETITION   FOR    POST-

3
    We use initials to protect the identities of the potential witnesses.
4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            A-2125-16T4
                                           4
             CONVICTION RELIEF[.] THE DEFENDANT['S]
             CONVICTION MUST BE REVERSED DUE TO
             TRIAL COUNSEL'S INEFFECTIVENESS FOR
             FAILING TO INVESTIGATE AND INTERVIEW
             ALIBI WITNESS P.J. AND PARTIAL ALIBI
             WITNESS S.F., AS EXCULPATORY WITNESSES
             AND HAVE THEM TESTIFY AT DEFENDANT'S
             TRIAL.

POINT II

             THE DEFENDANT'S PCR ATTORNEY WAS
             INEFFECTIVE FOR NOT PROVIDING THE PCR
             COURT WITH THE CELLPHONE SUBSCRIBER
             INFORMATION.

       We affirm the denial of defendant's PCR petition for the reasons set forth

in Judge Lydon's thoughtful and cogent written opinion. We add only the

following comments.

      In accordance with Rule 3:22-6A(2), when a first PCR petition is

dismissed without prejudice, the petition may be refiled as a first petition if it is

filed "within 90 days of the date of the judgment on direct appeal" or within five

years of the date of the entry of the judgment of conviction. In this case,

defendant's PCR petition refiled on May 10, 2013 was not timely under the Rule

because ninety days from the New Jersey Supreme Court's denial of defendant's

petition for certification was January 20, 2013, and five years from the entry of

the judgment of conviction was May 17, 2012.


                                                                             A-2125-16T4
                                         5
      Defendant contends his May 2013 petition was timely because it was filed

within ninety days of the denial of his writ of certiorari to the United St ates

Supreme Court. We reject this argument because "[f]ederal habeas corpus

proceedings will not be deemed to toll the time prescribed by [Rule 3:22-12]."

Pressler & Verniero, N.J. Court Rules, cmt. 2 to R. 3:22-12 (2019) (citing State

v. Milne, 178 N.J. 486, 494 (2004)) ("[A] defendant's pursuit of federal review

ordinarily would not extend the time frame within which to file a PCR petition

in State court.").

      On this record, we are satisfied the May 2013 PCR application was

untimely and therefore should be treated as defendant's second petition. As a

second or subsequent PCR petition, Rule 3:22-4(b) and Rule 3:22-12(a)(2)

apply.

      A second or subsequent PCR petition is untimely when filed more than

one year after the latest date of: (A) a newly asserted constitutional right was

recognized and made retroactive; (B) a newly discovered factual predicate was

discovered, if it could not have been discovered earlier through reasonable

diligence; or (C) a prior PCR petition was denied in which PCR counsel was

allegedly ineffective. R. 3:22-4(b); R. 3:22-12(a)(2).




                                                                        A-2125-16T4
                                       6
      Defendant's second PCR application did not concern a newly recognized

constitutional right or a newly discovered factual predicate that could not have

been discovered earlier. All of the information raised in defendant's second PCR

petition related to his ineffective assistance of counsel claim could have been

discovered sooner through the exercise of reasonable diligence. See State v.

Brewster, 429 N.J. Super. 387, 399-400 (App. Div. 2013). Nor does defendant

raise ineffective assistance of PCR counsel, as he did not have counsel on his

first PCR petition.

      Even though the PCR judge determined defendant's PCR application was

time barred, the judge reviewed the merits of his petition. To establish a prima

facie claim of ineffective assistance of counsel, a convicted defendant must

satisfy the two-part test enunciated in Strickland by demonstrating: (1) counsel's

performance was deficient, and (2) the deficient performance actually

prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland

test in New Jersey).

      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 judgment."


                                                                           A-2125-16T4
                                        7
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), overruled on other grounds by

State v. Czachor, 82 N.J. 392 (1980)). 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." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).

      We reject all of defendant's arguments asserting ineffective assistance of

counsel for the reasons expressed in Judge Lydon's comprehensive written

decision.

      The PCR judge found the testimony of defendant's trial counsel credible

and the testimony of defendant's alibi witnesses unreliable and poor. The judge

concluded defense counsel made a strategic litigation decision that the testimony

of the proffered witnesses was more problematic than helpful to defendant.

      The PCR judge also determined defendant's trial counsel discussed the

right to testify at the Miranda hearing and trial, and defendant deferred to his

attorney on the matter. Further, the judge found defendant knowingly and

intelligently waived his right to testify, his waiver was well documented in the


                                                                               A-2125-16T4
                                          8
record based upon the discussions with his trial counsel, defendant was not

compelled or coerced regarding his decision not to testify, and defendant had

sufficient time to consider whether to testify at trial. Nor is there any evidence

in the record to support a conclusion that had defendant testified at the Miranda

hearing or at trial, the outcome of the case would have been different.

      The PCR judge further found defense trial counsel effectively cross-

examined the State's witnesses and his representation of defendant throughout

the trial was not ineffective.     The judge concluded defense trial counsel

exercised reasonable and professional judgment in his strategy decisions

regarding his representation of defendant throughout the trial.

      Regarding the failure of defense trial counsel to investigate whether D.S.

and J.R. had information to serve as exculpatory witnesses at defendant's trial,

this issue was not presented to the PCR judge. We decline to review issues not

presented to the trial court unless the issue is jurisdictional or concerns a matter

of public importance. See Zawan v. Felton, 219 N.J. 199, 227 (2014) (quoting

Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973)). Because the issue

raised by defendant for the first time on appeal is not jurisdictional or a matter

of public importance, we decline to consider the argument.




                                                                            A-2125-16T4
                                         9
      Having reviewed the record, we find defense counsel's actions did not fall

below the requisite standard to satisfy the Strickland/Fritz test.    The trial

evidence against defendant was overwhelming.           Defendant presented no

competent evidence demonstrating satisfaction of either prong under the

Strickland standard.   Without presenting a prima facie case of ineffective

assistance of counsel, defendant was not entitled to an evidentiary hearing on

those issues. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

      The arguments in defendant's supplemental pro se brief are without

sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

      Affirmed.




                                                                        A-2125-16T4
                                      10
