STATE OF NEW JERSEY VS. RICHARD JONES (11-05-0887, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-5195-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD JONES,

Defendant-Appellant.

Submitted October 22, 2019 – Decided October 29, 2019

Before Judges Fisher and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 11-05-
0887.

Joseph E. Krakora, Public Defender, attorney for
appellant (Brian D. Driscoll, Designated Counsel, on
the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica Lucinda
do Outeiro, Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Richard Jones appeals from an order denying his petition for

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

We incorporate by reference the facts and procedural history set forth in

our prior unpublished opinion, affirming defendant's conviction and sentence.

State v. Jones, No. A-6223-11 (App. Div. Sept. 12, 2014) (slip op. at 1-6), certif.

denied, 221 N.J. 219 (2015). In short, after moving in with his girlfriend ,

Jennifer,1 and her fourteen-year-old son, David, defendant's relationship with

the teenager quickly devolved. During the two-day trial, "David and Jennifer

testified to numerous instances of defendant's abuse against David, including

strangulation, violent shaking, and threats of physical abuse." Jones, slip op. at

2-3.

Defendant did not testify or present any witnesses at trial. Neither defense

counsel nor the trial judge questioned defendant on the record about his election

not to testify. Defendant was convicted of second-degree endangering the

welfare of a child and third-degree terroristic threats. He was sentenced, as a

discretionary persistent offender, to an aggregate fifteen-year prison term with

a seven-and-one-half-year period of parole ineligibility.

1
We use pseudonyms to protect the privacy of the victim and his mother.
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 After the Supreme Court denied certification, defendant filed a PCR

petition, claiming his trial counsel was ineffective by refusing defendant's

request to testify in his own behalf. The State conceded defendant established

counsel's deficiency and he was entitled to an evidentiary hearing as to whether

the outcome of the trial would have been different had counsel not erred.

Defendant was the sole witness to testify at the hearing. The PCR judge, who

had not presided over defendant's trial, issued a cogent oral opinion denying

defendant's petition.

Defendant now appeals, raising the following points for our

consideration:

POINT I

THE [PCR] COURT ERRED IN FINDING
DEFENDANT FAILED TO SHOW THERE [WA]S A
REASONABLE PROBABILITY THAT IF HE HAD
TESTIFIED THE RESULT OF THE TRIAL WOULD
HAVE BEEN DIFFERENT.

POINT II

DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE FROM APPELLATE COUNSEL FOR
FAILURE TO RAISE THE MERITORIOUS ISSUES
OF [TRIAL] COUNSEL'S REFUSAL TO ALLOW
[DEFENDANT] TO TESTIFY AND THE [TRIAL]
COURT'S FAILURE TO ASK WHETHER
[DEFENDANT] WAIVED THAT RIGHT.
(Not raised below)

A-5195-17T3
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 Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to a PCR court's factual findings based on its review

of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). Where an

evidentiary hearing has been held, we should not disturb "the PCR court's

findings that are supported by sufficient credible evidence in the record." State

v. Pierre, 223 N.J. 560, 576 (2015) (citation omitted). We review any legal

conclusions of the court de novo. Nash, 212 N.J. at 540-41.

In seeking post-conviction relief, a defendant must prove counsel was

ineffective by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339,

350 (2012). Initially, a defendant must prove counsel's performance was

deficient by demonstrating counsel's handling of the matter "fell below an

objective standard of reasonableness" and that "counsel made errors so serious

that counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in

New Jersey).

Secondly, and pertinent to this appeal, a defendant must also prove

counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S.

at 687. Prejudice is established by showing a "reasonable probability that, but

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

been different." Id. at 694. Thus, a defendant must establish that counsel's

performance was deficient and the defendant suffered prejudice in order to

obtain a reversal of the challenged conviction. Id. at 687; Fritz, 105 N.J. at 52.

The PCR judge soundly determined defendant's testimony failed to

satisfy the second Strickland prong. The judge was unpersuaded by defendant's

account of the incidents in light of his demeanor on the witness stand.

According to the judge, "[t]he substance of defendant's testimony did little to

convince the [c]ourt that the jury's verdict of guilty on both counts would have

been any different had defendant testified at the trial." In particular, "[m]uch

of defendant's testimony at the PCR hearing dealt with his attempt to give

context to the relationship between [David] and . . . defendant rather than to

refute the allegations of abuses as testified to by [David] and his mother." The

judge recounted examples of that testimony and how it differed from

defendant's, concluding "[d]efendant's spin on the event simply did not ring

true, especially where[,] as here, the victim and the victim's mother provided

corroborating testimony as to the instances of physical and verbal abuse

presented to the jury."

The judge elaborated:

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 If the substance of defendant's testimony did little
to convince the [c]ourt that the outcome of the trial
would have been different, the manner of defendant's
testimony was even less convincing. Defendant's
intense dislike of the victim was palpable. At times,
when speaking about [David], . . . defendant appeared
to almost bite off his words and spit them into the
record. Everything about defendant's testimony, his
affect, his tendency to speak very loudly into the
microphone on the witness stand when speaking of
[David], his voiceable anger when recounting [David]'s
comments to defendant that he stinks, his heightened
anger when recalling that when [David] wanted
something he would ask his mother to ask defendant to
give it to him, all these instances made credible the
testimony of both [David] and defendant [sic] that
defendant was both verbally and physically abusive to
[David]. And although this court did not have occasion
to observe [David] testify, it is noted from the transcript
of the trial that both the trial court and the [a]ssistant
[p]rosecutor, at least initially, had to instruct [David] to
keep his voice up during his testimony. No such
instruction was necessary for the defendant during his
testimony before the [PCR c]ourt.

Having reviewed the record, in view of the parties' arguments and our

standard of review, we are satisfied defendant's testimony at trial would not have

affected the jury's verdict. Because the PCR judge's findings are fully supported

by the record, we accept his determination that defendant failed to prove his

counsel was ineffective under the second prong of the Strickland standard. We

therefore see no reason to disturb his findings, which are entitled to our

deference. State v. Robinson, 200 N.J. 1, 15 (2009).

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 Little needs to be said about defendant's newly-minted argument that

appellate counsel was ineffective. Defendant limits his argument to one

contention: appellate counsel failed to argue the trial judge erred by not "sua

sponte" questioning defendant about his right to testify. We decline to address

this contention because it was not raised by defendant or addressed by the PCR

judge. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). And, we

have determined PCR petitions raising claims of ineffective assistance of

appellate counsel should be addressed in the first instance by the Law Division.

State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2008). In any event, as

noted, following an evidentiary hearing, the PCR judge found defendant failed

to establish the result would have been any different had he testified at trial.

Affirmed.

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