RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-3815-19






                   Submitted April 26, 2021 – Decided May 18, 2021

                   Before Judges Sabatino and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 11-12-

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

                   Jennifer    Webb-McRae,        Cumberland       County
                   Prosecutor, attorney for respondent (Andre R. Araujo,
                   Assistant Prosecutor, of counsel and on the brief).

    We use initials to protect the confidentiality of the victim. R. 1:38-3(c)(12).

      Defendant appeals from the January 6, 2020 Law Division order denying

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


      We glean these facts from the record. In 2011, defendant was charged in

a twenty-three-count indictment with sexual assault and related offenses

involving five different victims. After severance, in 2014, defendant was tried

by a jury and convicted of the first nine counts of the indictment, all of which

pertained to one of the five victims. Specifically, defendant was convicted of

first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count two); first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6) (count three); first-

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (count four); third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five); second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count six); third-degree possession

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

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

third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count nine).

      This appeal is limited to those nine charges and that specific victim, who

was abducted on the street by defendant and brutally and repeatedly raped and

stabbed in a stairwell. Although the victim could not identify her attacker, DNA

evidence linked defendant to the crimes. In 2015, defendant was sentenced to

an aggregate term of thirty-six-years' imprisonment, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, a special sentence of parole supervision for

life, N.J.S.A. 2C:43-6.4, and restrictions under Megan's Law, N.J.S.A. 2C:7-1

to -23.

      On direct appeal, in an unpublished decision, we vacated one of the

aggravated sexual assault convictions (count two) "[b]ecause the record [did]

not establish that defendant assaulted a third party during his sexual assault of

the victim" as required under N.J.S.A. 2C:14-2(a)(3). State v. R.N., No. A-

5783-14 (App. Div. Dec. 20, 2017) (slip op. at 19). We remanded for "re-

sentencing on the remaining counts."

Ibid. Thereafter, the Supreme


denied defendant's petition for certification. State v. R.N., 

235 N.J. 383


      On February 16, 2018, defendant was re-sentenced and received the same

aggregate sentence. 2 On December 3, 2018, we affirmed the re-sentence on a

  Instead of sentencing defendant to consecutive terms of eighteen years each
on counts one and two as originally imposed, at the re-sentencing hearing, the

Sentence Only Argument (SOA) calendar, finding "that the sentence [was] not

manifestly excessive or unduly punitive and [did] not constitute an abuse of

discretion." See R. 2:9-11.

      Thereafter, defendant filed a timely pro se petition for PCR, alleging

ineffective assistance of trial and appellate counsel. With the assistance of

assigned PCR counsel, defendant asserted, among other things, 3 that his trial and

appellate attorneys were ineffective by failing to argue in connection with his

re-sentencing that aggravating factor six did not apply. See N.J.S.A. 2C:44-

1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness

of the offenses of which the defendant has been convicted[.]"). According to

defendant, although he had a juvenile history, he had no prior adult criminal

record, having just turned eighteen when he committed these crimes. Defendant

also argued that his trial and appellate attorneys were ineffective by failin g to

challenge the jury charge on the third-degree aggravated assault offense

trial court sentenced defendant to consecutive terms of eighteen years each on
counts one and three and merged the remaining counts.
   The other claims raised by defendant in his petition have been abandoned on
appeal. See Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety,

421 N.J. Super. 489

, 496 n.5 (App. Div. 2011) (explaining that claims not
addressed in the merits brief are "consider[ed] . . . abandoned").
contained in count five where the judge mistakenly referred to defendant, instead

of the State, as having the burden of proof on causation.

      On January 6, 2020, the PCR court conducted oral argument, after which,

in an oral opinion, the court rejected both contentions and denied the petition as

"procedurally barred." See R. 3:22-4; R. 3:22-5. The court also determined

there was no requirement for an evidentiary hearing. The court entered a

memorializing order on the same date and this appeal followed.

      On appeal, defendant raises the following             arguments for our


            EVIDENTIARY       HEARING      BECAUSE

                  A. Trial and Appellate Counsel Failed to
                  Pursue N.J.S.A. 2C:44-1a(6) as a Non-
                  Aggravating Factor.

                  B. Trial and Appellate Counsel Failed to
                  Pursue the Trial Court's Erroneous
                  Instruction That Defendant Must Prove
                  Beyond a Reasonable Doubt That the
                  Bodily Injury Sustained by the Victim Was
                  Not So Unexpected or Unusual That It
                  Would Be Unjust To Find the Defendant
                  Guilty of Aggravated Assault.

      The mere raising of a PCR claim does not entitle the defendant to an

evidentiary hearing. State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div.

1999). Rather, while "view[ing] the facts in the light most favorable to a

defendant," State v. Preciose, 

129 N.J. 451

, 463 (1992), PCR judges should grant

evidentiary hearings in their discretion only if the defendant has presented a

prima facie claim of ineffective assistance of counsel (IAC), material issues of

disputed fact lie outside the record, and resolution of those issues necessitates a

hearing. R. 3:22-10(b); State v. Porter, 

216 N.J. 343

, 355 (2013); State v.


148 N.J. 89

, 158 (1997).

      To establish a prima facie claim of IAC, a defendant must satisfy the two-

pronged test enunciated in Strickland v. Washington, 

466 U.S. 668

, 687 (1984),

and adopted by our Supreme Court in State v. Fritz, 

105 N.J. 42

, 49-53 (1987).

Under the Strickland/Fritz test, a defendant must show "by a preponderance of

the credible evidence," State v. Goodwin, 

173 N.J. 583

, 593 (2002) (citing

Preciose, 129 N.J. at 459

), that: (1) "counsel's performance was deficient"; and

(2) "the deficient performance prejudiced the defense." 

Strickland, 466 U.S. at



Fritz, 105 N.J. at 58

. The Strickland/Fritz test applies equally to both trial

and appellate counsel. State v. Guzman, 

313 N.J. Super. 363

, 374 (App. Div.

1998); see also State v. Morrison, 

215 N.J. Super. 540

, 546 (App. Div. 1987).

      To establish prejudice, the defendant must show "a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." 

Strickland, 466 U.S. at 687

, 694; see also 

Fritz, 105 N.J.

at 52

.   "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." 

Strickland, 466 U.S. at 694

. "[A] court making the

prejudice inquiry must ask if the defendant has met the burden of showing that

the decision reached would reasonably likely have been different absent the


Id. at 696.

"In particular, a court need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies."

Id. at 697.

"If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed."


Additionally, a PCR

claim is not a substitute for a direct appeal and thus

must overcome procedural bars before it can even be considered on the merits .

R. 3:22-3. To that end, "a defendant may not employ [PCR] to assert a new

claim that could have been raised on direct appeal, Rule 3:22-4, or to relitigate

a claim already decided on the merits, Rule 3:22-5." 

Goodwin, 173 N.J. at 593


see State v. McQuaid, 

147 N.J. 464

, 484 (1997) ("If the same claim is

adjudicated on the merits on direct appeal a court should deny PCR on that issue,

thereby encouraging petitioners to raise all meritorious issues on direct


      Applying these principles to this record, we are satisfied that defendant's

contentions were properly rejected without an evidentiary hearing. See State v.


429 N.J. Super. 387

, 401 (App. Div. 2013) ("[W]e review under the

abuse of discretion standard the PCR court's determination to proceed without

an evidentiary hearing."); State v. Reevey, 

417 N.J. Super. 134

, 147 (App. Div.

2010) ("[I]t is within our authority to conduct a de novo review of both the

factual findings and legal conclusions of the PCR court" where, as here, no

evidentiary hearing was conducted (citations and internal quotation marks


      Regarding count five, while reiterating the burden of proof for causation,

defendant correctly points out and the State concedes that the trial court

mistakenly instructed the jury:

             In other words, the [d]efendant must prove beyond a
             reasonable doubt that the bodily injury sustained by
             [the victim] was not so unexpected or unusual that it
             would be unjust to find the [d]efendant guilty of
             [a]ggravated [a]ssault.

             [Emphasis added.]

Trial counsel failed to object at trial and, despite challenging the jury charge on

appeal, appellate counsel failed to raise this specific error. However, even if

defendant's claim is not procedurally barred, defendant has failed to establish

prejudice as required under the Strickland/Fritz test.

      To be sure, "[c]orrect charges are essential for a fair trial," State v. Martin,

119 N.J. 2

, 15 (1990), but we "evaluate any alleged error in a portion of a jury

charge in the context of the entire charge." State v. Marshall, 

173 N.J. 343

, 355

(2002). Here, the single misstatement was fleeting and paraphrased a preceding

instruction that was correct. Further, the trial court correctly instructed the jury

throughout the entire charge that the burden of proving each element of each

offense beyond a reasonable doubt rested on the State and remained on the State

at all times. Consequently, we are satisfied that the verdict reached by the jury

and the outcome of the appeal would not have been different absent the error in

the jury charge.4

      Defendant also argues that both his trial and appellate attorneys were

ineffective for failing to challenge the sentence imposed at the re-sentencing

hearing as excessive based on the erroneous application of aggravating factor

  Notably, count five was merged into count one (attempted murder) at the re-
sentencing hearing.
six. Given our prior affirmance of the re-sentence based on a finding that the

sentence was not manifestly excessive, unduly punitive, or constituted an abuse

of discretion, we agree with the PCR judge that this claim is procedurally barred.

"[A] prior adjudication on the merits ordinarily constitutes a procedural bar to

the reassertion of the same ground as a basis for post-conviction review."

Preciose, 129 N.J. at 476


      In any event, defendant has again failed to establish prejudice as required

under the Strickland/Fritz test. At the re-sentencing hearing, in addition to

aggravating factor six, the sentencing court found aggravating factor two "as to

the [a]ttempted [m]urder charge," see N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and

seriousness of harm inflicted on the victim"), and aggravating factors three and

nine as to all the charges. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the

defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(9) ("[t]he need

for deterring the defendant and others from violating the law"). The court

accorded substantial weight to the aggravating factors and found no mitigating


      Regarding aggravating factor two, the court explained that "after the

victim was already viciously sexually assaulted," she "sustained significant life-

threatening injuries. She was partially disemboweled and sustained multiple

stab wounds." As to aggravating factor three, acknowledging that defendant had

no "adult record," having turned "[eighteen] years of age" only "five months"

prior to the commission of the offenses, the judge recounted defendant's

extensive juvenile history consisting of "five adjudications [of delinquency],

three [v]iolations of [p]robation, and one violation of [p]arole."          As to

aggravating factor nine, the judge found "a need not only for general deterrence

but also specific deterrence . . . in light of [defendant's] past juvenile record."

Further, after analyzing the factors enunciated in State v. Yarbough, 

100 N.J.


(1985), and characterizing the case as "a[] horrific case," the judge

concluded that "consecutive sentencing [was] appropriate" based on the separate

and distinct "injuries," "objective[s]," and "acts of violence." Thus, we are

satisfied that defendant has not met his burden of showing that the sentence

imposed "would reasonably likely have been different" absent consideration of

aggravating factor six. 

Strickland, 466 U.S. at 696




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