                                NOT FOR PUBLICATION WITHOUT THE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-2438-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY BETHEA, a/k/a
ANTHONY MASON,

     Defendant-Appellant.
_________________________

                    Submitted March 3, 2020 – Decided April 8, 2020

                    Before Judges Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 08-11-0955.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Karen Ann Lodeserto, Designated Counsel,
                    on the brief).

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

PER CURIAM
        Defendant Anthony Bethea appeals from a December 5, 2018 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

                                          I.

        We derive the following facts from the PCR record and the chronology

set forth in our unpublished opinion on August 31, 2015,1 in which we affirmed

defendant's conviction, sentence, and the trial court's denial of his motion to

suppress. Defendant was initially charged as a juvenile in connection with the

murder and robbery of his eighty-four-year-old neighbor, J.E. 2 At the time

defendant was charged, he was almost seventeen years and nine-months old.3

        Following defendant's arrest, the Trenton police department contacted

defendant's mother and advised her that her son was a suspect in J.E.'s homicide.

Defendant's mother signed a "Trenton Police Department Consent Form for the

Interview of a Juvenile Suspect," which waived her presence and gave consent

for her son to be interviewed in her absence.




1
    State v. Bethea, No. A-0004-13 (App. Div. Aug. 31, 2015).
2
    We use initials to protect the identity of the victim. R. 1:38-3(c)(12).
3
    Defendant was born in February 1990.
                                                                               A-2438-18T3
                                          2
       Thereafter, defendant was interviewed by two police officers, who read

the "Mercer County Uniform Complaint/Arrest Warrant Notice Form" to

defendant, notifying him of the charges. Defendant indicated he understood the

charges. He was also given his Miranda4 warnings, read them out loud, and

signed the form.

       Defendant was questioned for an hour and fifteen minutes.       Officer

Manuel Montez told defendant he "would still be young when released from

prison and would try to help him out." Defendant told detectives he was

"straight," had to "face the time," and "man-up for [his] mistakes."

       Following an indictment for first-degree murder, N.J.S.A. 2C:11-3(a)(2),

and other offenses associated with the murder of J.E., defendant moved to

suppress his statement. We upheld the trial court's decision to deny the motion

to suppress and concluded that defendant's confession "was the product of his

own free will." Moreover, we noted that defendant had completed some high

school education, and he had familiarity with the criminal process based upon

his previous encounters with the law.




4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                       A-2438-18T3
                                        3
      In our prior opinion, we affirmed defendant's sentence of fifty years'

imprisonment, subject to an eighty-five percent period of parole ineligibility

pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      On October 29, 2015, defendant filed a pro se PCR petition. In March

2016, defendant filed a second PCR petition because he did not receive a

response to his first filing. The court assigned counsel, who filed an amended

petition on June 9, 2018. Counsel argued that although defendant filed his

petition two days late, the PCR court should deem the late filing was excusable

neglect because the petition was signed two days before the October 23, 2015

deadline.

      On June 15, 2018, PCR counsel filed a brief in support of defendant 's

petition, arguing that defendant's sentence was unconstitutional under Miller v.

Alabama, 567 U.S. 460 (2012), and State v. Zuber, 227 N.J. 422 (2017), because

the trial court did not consider defendant's youth and attendant circumstances as

mitigating factors.

      On the return date of defendant's PCR petition, defendant argued that he

was entitled to an evidentiary hearing on his claim that his sentence was

unconstitutional under Miller and Zuber. Defendant characterized himself as

having an "intellectual disability" and argued "he did not knowingly,


                                                                         A-2438-18T3
                                       4
intelligently, and voluntarily waive his Miranda rights because of his age and

below-average intelligence."     Defense counsel also argued there were two

psychological evaluations "readily available" at the time of defendant's

sentencing and trial counsel was ineffective for not producing them to the trial

court.

         Defendant advanced three arguments to support his PCR claim that trial

counsel afforded ineffective assistance: (1) counsel failed to investigate his

intellectual disabilities and his mother's consent for the police to interview him;

(2) a more thorough investigation of his disabilities would have led to more

favorable plea negotiations; and (3) counsel should have argued mitigating

factor four at sentencing because there were "substantial grounds tending to

excuse or justify defendant's conduct" under N.J.S.A. 2C:44-1(b)(4). Defendant

further contended that trial counsel's cumulative errors constituted ineffective

assistance and he was entitled to an evidentiary hearing.

         After due consideration of the issues raised, the PCR court denied the

petition. In a twenty-one-page written decision, the PCR court distinguished

defendant's case from Miller and Zuber:

              [Defendant] was not sentenced to life without the
              possibility of parole; he was given a sentence of fifty
              years, with forty-two-and-a-half years of parole
              ineligibility.   Clearly then, [defendant] was not

                                                                           A-2438-18T3
                                        5
            subjected to a sentencing scheme preordaining a
            sentence of life without parole. . . .

            Even if [defendant] had clearly raised a Zuber claim, it
            would still fail, as [defendant's] sentence is not the
            "practical equivalen[t] of life without parole."

            [(second alteration in original) (citations omitted).]

      The PCR court determined Zuber was not applicable because:

            In Zuber, the defendants were respectively sentenced to
            110 years ([fifty-five] years before parole eligibility)
            and [seventy-five] years ([sixty-eight] years and [three]
            months before parole ineligibility) for actively
            participating in two violent gang rapes. Thus, the
            defendants would respectively be seventy-two and
            eighty-five years old before reaching parole eligibility.
            The [C]ourt remarked that each defendant would spend
            more than [fifty] years in prison, longer than some
            adults convicted of first-degree murder.

            In the case at bar, [defendant] was seventeen years old
            at the time of his crime. Rather than proceeding to trial,
            [defendant] agreed to a negotiated plea of [fifty] years
            [subject to] NERA. [The sentencing judge] sentenced
            [defendant] in accordance with his plea agreement.
            [Defendant] will be eligible for parole in 2052, at which
            point he will be [fifty-nine and one-half] years old.
            While we may not refer to actuarial tables to conclude
            [defendant's] sentence does not violate Zuber, it is
            evident that [defendant] will be exiting the prime years
            of his life once he becomes eligible for parole.


The PCR court concluded that the holdings in Miller and Zuber did not entitle

defendant to a reconsideration of his sentence.


                                                                         A-2438-18T3
                                        6
       The PCR court further held that defendant failed to "consistently define"

his alleged disabilities, specifically whether this term as used by defendant

refers to his lower-than-average intelligence or Attention Deficit Hyperactivity

Disorder (ADHD). Because defendant did not present any details to support his

contentions, the court rejected his argument.

       The PCR court further found that defendant failed to explain how

counsel's investigation of the case would have had an impact upon the Miranda

hearing. Even if trial counsel was ineffective for not investigating defendant 's

disabilities, the PCR court found defendant's claim failed under the second

prong of Strickland.5 Citing State v. Carpenter, 268 N.J. Super. 378, 385 (App.

Div. 1993), the PCR court held "[i]t is well[-]established that a suspect's lack of

intelligence—alone—will not obviate an otherwise valid Miranda waiver." Ibid.

       Regarding the ineffective-assistance-of-counsel claim, the PCR court

determined defendant's argument was procedurally barred under Rule 3:22-5,

relying on our opinion that "he did not knowingly, intelligently, and voluntarily

waive his Miranda rights because of his below-average intelligence." Bethea,

slip op. at 14. We noted there was "ample evidence that defendant's confession

was the product of his own free will," stating:


5
    Strickland v. Washington, 466 U.S. 668, 687 (1984).
                                                                           A-2438-18T3
                                        7
             [Detective] Montez read defendant his Miranda rights
             and the accompanying forms before asking him to read
             the documents aloud. Montez also repeatedly asked
             defendant if he understood the forms and his rights.
             Each time, defendant replied, "Yes, sir." Montez gave
             defendant a "clear and easy-to-understand" explanation
             that meaningfully informed him of his constitutional
             rights.

             [Id. at 14-15.]


      With regard to defendant's claim that trial counsel was ineffective for not

calling defendant's mother as a witness at the Miranda hearing, the PCR court

determined it was "irrelevant, for the evidence submitted would not alter the

result of defendant's case, even if it were presumed authentic." The PCR court

explained:

             Put simply, taking [the mother's] certification as valid
             would defy common sense. [Mother's] certification
             claims "she wanted to be present" during [defendant's]
             interrogation and "would have never allowed her son to
             speak with police without her presence and or the
             presence of a lawyer." However, in the Trenton Police
             Department "Consent Form for the Interview of a
             Juvenile Suspect" (Consent Form), [mother]
             acknowledged Detective Montez "requested my
             presence during the interview." Further, the Consent
             Form recorded [mother's] refusal to accompany
             [defendant] and her grant of "consent for [defendant] to
             be interviewed in my absence." [Mother] also
             recognized "that [defendant and I] have the right to be
             represented by an attorney," yet decided "[defendant
             and I] do not wish that representation at this time."


                                                                         A-2438-18T3
                                        8
              Finally, the Appellate Division specifically found
              [mother's] "absence from the interrogation [did not]
              render [defendant's] confession inadmissible," since
              [mother] spoke with Detective Montez, was informed
              of the charges against defendant, and "chose not to be
              present for the interrogation." Thus, the court
              concluded [mother] "was not tricked, threatened,
              coerced, or intentionally excluded" from [defendant's]
              interrogation. These findings—like the Consent Form
              signed by [mother]—explicitly refute [mother's] instant
              certification.

Thus, under the most indulgent reading of the PCR petition, the PCR court

concluded that the two prongs of the Strickland/Fritz6 test were not met.

        On appeal, defendant raises the following arguments:

              POINT ONE

              THE PCR COURT ERRED IN DENYING
              DEFENDANT AN EVIDENTIARY HEARING
              BECAUSE TESTIMONY IS NEEDED REGARDING
              TRIAL COUNSEL'S FAILURE TO ADVISE THE
              TRIAL     COURT     OF      DEFENDANT'S
              INTELLECTUAL   DISABILITIES   AS  THEY
              AFFECTED EVERY STAGE OF HIS MATTER.

              POINT TWO

              THE PCR COURT ERRED IN DENYING
              DEFENDANT AN EVIDENTIARY HEARING
              BECAUSE TESTIMONY IS NEEDED REGARDING
              TRIAL COUNSEL'S FAILURE TO CALL [HIS
              MOTHER] AS A WITNESS AT THE MIRANDA


6
    State v. Fritz, 105 N.J. 42, 58 (1987).
                                                                            A-2438-18T3
                                          9
            HEARING TO CONTRADICT THE TESTIMONY OF
            DETECTIVE MONTEZ.

            POINT THREE

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING
            BECAUSE TESTIMONY IS NEEDED REGARDING
            TRIAL COUNSEL'S FAILURE TO ADVISE THE
            TRIAL     COURT      OF        DEFENDANT'S
            INTELLECTUAL DISABILITIES PRIOR TO
            PLEADING GUILTY, AND IT . . . ALSO NEEDS TO
            BE DETERMINED IF DEFENDANT UNDERSTOOD
            THE TERMS OF HIS GUILTY PLEA GIVEN HIS
            INTELLECTUAL LIMITATIONS.

            POINT FOUR

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING AS
            TRIAL COUNSEL WAS INEFFECTIVE AT
            SENTENCING    IN  FAILING  TO ARGUE
            DEFENDANT'S YOUTH AND INTELLECTUAL
            LIMITATIONS AT SENTENCING.

                                       II.

      We have thoroughly reviewed the record and conclude the PCR judge

correctly found that defendant was not entitled to an evidentiary hearing.

Evidentiary hearings on PCR petitions are neither mandated nor necessary to

fully and properly evaluate each issue for relief asserted. See State v. Marshall,

148 N.J. 89, 157-58 (1997); State v. Russo, 333 N.J. Super. 119, 138 (App. Div.



                                                                          A-2438-18T3
                                       10
2000).    Rule 3:22-10 recognizes the PCR court's discretion to conduct

evidentiary hearings.

      An evidentiary hearing becomes necessary when a defendant presents a

prima facie basis to support the grant of relief by demonstrating a reasonable

likelihood that his claim will ultimately succeed on the merits. State v. Preciose,

129 N.J. 451, 462 (1992). A defendant's "bald assertions" that counsel was

ineffective will not sufficiently satisfy defendant's prima facie burden; the

defendant must allege specific facts demonstrating the deficient performance.

State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006); State v.

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

      To establish such a prima facie showing, a defendant must demonstrate a

reasonable likelihood of succeeding under the two-pronged test set forth in

Strickland, 466 U.S. at 687, and adopted by our Supreme Court in Fritz, 105

N.J. at 58. Defendant must prove both deficient performance of counsel and a

"reasonable probability" that such performance affected the outcome. Ibid.

      Under that test, defendant must specifically demonstrate "that counsel

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

guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, 466

U.S. at 687). This is a high standard because "counsel is strongly presumed to


                                                                           A-2438-18T3
                                       11
have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

      The facts maintained by defendant in his PCR petition, that he has lower-

than-average intelligence and ADHD, are unaccompanied by documentary

evidence. His assertion that these facts, if investigated more thoroughly, would

demonstrate whether he was able to fully participate at all stages of the

proceeding and whether he had an intellectual disability that might have

constituted a defense is, at best, speculative.

      Beyond his own assertions, defendant has offered no evidence of having

a prior or ongoing intellectual disability. More critically, he has not shown how,

even if he had an intellectual disability, that condition would have constituted a

defense or otherwise altered the outcome of the proceedings. See State v.

Morton, 165 N.J. 235, 250-51 (2000) (evidence of defendant's "borderline

intellectual functioning" and enrollment in special education classes determined

not to provide justification or excuse for murder).

      Here, the PCR court aptly concluded that defendant's contention was

"insufficiently . . . supported." Therefore, we reject defendant's argument that

he was denied effective assistance of counsel on this issue.




                                                                          A-2438-18T3
                                        12
      Defendant's claim that his mother should have been called as a witness at

his Miranda hearing also lacks merit. In his brief, defendant relies upon a

December 9, 2018 investigation report wherein defendant's mother claimed that

when she arrived at the Trenton Police Department, she learned her son was

already being questioned by police without her knowledge or permission. She

further asserted that "[s]he wanted to be present and would never [have] allowed

her son to speak with police" without her or a lawyer present. 7

      As the PCR court observed, if defendant's mother had proffered her

certification at the Miranda hearing, "the court would have found it wholly

incredible." In our opinion on defendant's direct appeal, we noted his mother's

non-participation in the interrogation did not render defendant's statements

inadmissible, and she was "not tricked, threatened, coerced, or intentionally

excluded from" the interrogation. Bethea, slip op. at 17-18. The PCR court's

decision was based upon substantial credible evidence in the record.



7
   The December 9, 2018 report was prepared after the PCR court's decision.
The report is not properly before this court and we will not consider it. "Our
rules provide that '[t]he record on appeal shall consist of all papers on file in the
court . . . below,'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, PA, 189 N.J.
436, 452 (2007) (alteration in original) (quoting R. 2:5-4), and our Supreme
Court "has long held [that] appellate review is limited to the record developed
before the trial court," Davis v. Devereux Found., 209 N.J. 269, 296 n.8 (2012).
We therefore, reject defendant's reliance on the report.
                                                                             A-2438-18T3
                                        13
      Regarding the failure to argue mitigating factor four, which permits a

sentencing court to consider whether there "were substantial grounds tending to

excuse or justify the defendant's conduct, though failing to establish a

defense[,]" N.J.S.A. 2C:44-1(b)(4), the PCR court rejected defendant's argument

that he had ineffective assistance of counsel. Defendant maintains his sentence

is illegal because his alleged trial counsel's ineffectiveness caused defendant to

be sentenced to the functional equivalent of life without parole (LWOP).

      The PCR court found defendant's argument was procedurally barred under

Rule 3:22-5 because this court rejected that claim on direct appeal.        In its

decision, the PCR court reasoned:

            First, trial counsel's failure to notify the trial court
            about [defendant's] supposed disability was not
            problematic. Mitigating factor four, which [defendant]
            cites as his panacea, permits a sentencing court to
            consider whether there "were substantial grounds
            tending to excuse or justify the [defendant's] conduct,
            though failing to establish a defense." N.J.S.A. 2C:44-
            1(b)(4). In short, [defendant's] condition does not
            constitute "substantial grounds tending to excuse or
            justify the vicious, premeditated murder of a celebrated
            octogenarian. . . ."

            Second, even if it was [inept] for trial counsel to neglect
            disclosing    [defendant's]      purported      disability,
            [defendant's] argument would still fall flat, since his
            condition would not have altered the sentence. Again,
            neither an ADHD diagnosis nor a below-average
            intelligence "excuse[s] or justif[ies] cold-blooded

                                                                          A-2438-18T3
                                       14
            murder." Moreover, the trial court sentenced
            [defendant] pursuant to and in accordance with a valid
            plea agreement.

            [(footnote omitted) (citations omitted).]

The PCR court was correct in its analysis.

      We also reject defendant's claim that the PCR court erred by not applying

the holdings in Miller and Zuber to his case. In Miller, the United States

Supreme Court held the Eighth Amendment prohibits the imposition of a

mandatory life sentence without parole on a defendant convicted of homicide

while a juvenile. 567 U.S. at 473, 489. "[T]he Court grounded its decisions on

commonly accepted scientific and sociological notions about the unique

characteristics of youth and the progressive emotional and behavioral

development of juveniles." State in the Interest of C.K., 233 N.J. 44, 68 (2018).

      In Zuber, our Court held that "Miller's command that a sentencing judge

'take into account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison,' applies with equal

strength to a sentence that is the practical equivalent of life without parole." 227

N.J. at 446-47 (quoting Miller, 567 U.S. at 480).

      The Court held that the factors set forth in Miller must be considered when

sentencing defendants to terms that are the practically equivalent to LWOP for


                                                                            A-2438-18T3
                                        15
crimes committed as a juvenile: "[the] defendant's 'immaturity, impetuosity, and

failure to appreciate risks and consequences'; 'family and home environment';

family and peer pressures; 'inability to deal with police officers or prosecutors'

or his own attorney; and 'the possibility of rehabilitation.'" Id. at 453 (quoting

Miller, 567 U.S. at 477-78).

      The Zuber Court did not categorically prohibit the imposition of sentences

on juvenile-aged offenders that are the functional equivalent of LWOP. Id. at

450-52. Instead, the Court stated that "even when judges begin to use the Miller

factors at sentencing," some juveniles may appropriately receive long sentences

with substantial periods of parole ineligibility, "particularly in cases that involve

multiple offenses on different occasions or multiple victims." Id. at 451.

      Here, the PCR court correctly found that defendant's sentence and

circumstances are quite different than the factual scenarios in Miller and Zuber.

Defendant was not sentenced to LWOP or its functional equivalent because he

can be paroled at fifty-nine and one-half years old. And, unlike the defendants

in the Zuber case, defendant's sentence here was a bargained for term and he




                                                                             A-2438-18T3
                                        16
does not face "potential release after five or six decades of incarceration, when

[defendants] would be in their seventies and eighties . . . ." Id. at 448.8

      The PCR court also properly rejected defendant's argument that his

sentence should be reconsidered due to revisions to N.J.S.A. 2A:4A-26.1.

Defendant contended that the revisions should apply retroactively to his case

and he would serve a "significantly lower sentence" if he was subject to the

revised statute and "not waived to adult court."

      We are persuaded that the PCR court correctly declined to address whether

the revisions applied retroactively to defendant's case and we agree "it is clear

[defendant] would have been waived into adult court under any statutory

scheme." The record shows there was an abundance of evidence to support the

offenses of first-degree murder, robbery, and the other charges. The PCR court

properly denied defendant's argument because he would have been waived into

adult court under either version of N.J.S.A. 2A:4A-26.1.

      Finally, the PCR court determined that defendant's pro se arguments

mirrored those already adjudicated. We agree. Since none of the alleged errors

were established, defendant's argument on cumulative error is devoid of merit.



8
   The Zuber defendants were parole eligible at ages seventy-two and eighty-
five. 227 N.J. at 428-29.
                                                                              A-2438-18T3
                                       17
      Here, defendant failed to demonstrate a reasonable likelihood of success

on the merits and thus was not entitled to an evidentiary hearing.

      Affirmed.



F




                                                                       A-2438-18T3
                                      18
