NOT FOR PUBLICATION WITHOUT THE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-4932-17T4
STATE OF NEW JEREY,
Plaintiff-Respondent,
v.
AARON J. ELLIS, a/k/a AARON
JOHN ELLIS, AARRON ELLIS,
and AARON ELLOS,
Defendant-Appellant.
_____________________________
Submitted October 22, 2019 – Decided November 4, 2019
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 13-04-
0470.
Joseph E. Krakora, Public Defender, attorney for
appellant (Phuong Vinh Dao, Designated Counsel, on
the brief)
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (David Michael
Liston, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Aaron Ellis appeals from the April 30, 2018 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I
We begin by summarizing the facts established in defendant's trial, which
we set forth at length in our November 28, 2016 opinion on direct appeal. State
v. Ellis, No. A-0676-14 (App. Div. Nov. 28, 2016) (Slip op.). We highlight the
facts relevant to this appeal.
Around 7:00 p.m. on December 28, 2012, K.M., of Mandy's Towing
Company, went to the Joyce Kilmer Service Area on the New Jersey Turnpike
to assist a group of persons locked out of their minivan. While K.M. worked to
unlock the minivan, defendant, an employee of Puleio's Towing, arrived in his
truck. According to K.M., defendant exited his truck and walked "aggressively"
towards him, carrying his own large lockout tool.
Defendant told K.M. to stop his work because this job was "his call."
Apparently, Puleio's Towing had received a call from Turnpike Operations about
the minivan two hours earlier. Puleio's Towing sent a message to defendant to
respond to the call, but defendant did not notice the message right away. By the
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2
time defendant noticed the message, about one hour later, Turnpike Operations
had assigned the job to Mandy's Towing. K.M. testified he did not know Puleio's
Towing had received a call about the same job, and continued to work on
unlocking the minivan.
Defendant offered to charge the group a cheaper fee, but the group
declined his offer. As K.M. continued his work, defendant tried to get in his
way and pushed into him. In response, K.M. called Turnpike Operations and
confirmed the job belonged to Mandy's Towing, and then handed defendant the
phone. As defendant spoke with Turnpike Operations, he continued pushing and
trying to stand between K.M. and the minivan, so K.M. pushed defendant back
with a "one-handed . . . shove." Defendant alleged K.M. punched him twice in
the face, but neither eyewitness saw K.M. punch defendant.1
Shortly thereafter, defendant returned to his truck and continued speaking
with Turnpike Operations. According to defendant, while in his truck, he
attempted to call 911, but the call failed, so he called his "grandmother -in-law"
and told her to "call the cops" or "something like that." K.M. testified defendant,
1
In addition, New Jersey State Trooper Robert Kilmurray – who interviewed
defendant and took photographs approximately two hours after the incident –
testified defendant's face and jaw showed no signs he was punched.
A-4932-17T4
3
still seated in the truck, went into "a thrashing rage," "thrashing his arms all over
inside of the truck and bouncing all over." K.M. further testified he saw
defendant reach under his seat, grab a four-way tire iron, and hit the inside of
the front windshield two or three times, shattering the truck windshield.
Defendant denied swinging a tire iron inside his truck and denied breaking the
front windshield.
K.M. testified he went over to defendant's truck to "calm him down" and
say "no hard feelings," but defendant would not open the door, so K.M. walked
away and returned to the minivan. Contrary to K.M.'s testimony, defendant
claimed K.M. approached his truck aggressively, banged on his window, and
tried to open the truck door himself. K.M. denied these allegations.
Approximately five to seven minutes later, defendant exited his truck and
began walking towards K.M., swinging the tire iron. According to K.M.,
defendant then chased him while swinging the tire iron, eventually hitting him
twice – once on the left temple area of his head and once on his left hand. K.M.
described dropping to his knee and bleeding "like[] a faucet" from his temple.
Defendant then got back in his truck and drove away.
According to defendant, he grabbed the tire iron because he was anxious
K.M. would strike him again, and only exited his truck to scare K.M. away. He
A-4932-17T4
4
said he swung the tire iron in order to defend himself and claimed he only grazed
K.M. with it; nevertheless, when K.M. asked defendant to stop, he did so.
Defendant said he walked back to his truck after the incident, and K.M. picked
up his glasses and completed the paperwork for the job. When K.M. appeared
alright, defendant drove away.
The impact of the tire iron left K.M. with a fractured eye socket, internal
eye damage, partial loss of vision, persistent jaw pain, and frequent migraines.
Treatment of K.M.'s injuries included a surgical implantation of titanium plates
around his left eye-socket.
After speaking with K.M., Trooper Kilmurray called Puleio's Towing and
obtained defendant's contact information. He called defendant and instructed
him to report to the Cranbury Barracks, where he placed defendant under arrest.
At 8:57 p.m., defendant gave a videotaped statement.
On January 12, 2014, the matter proceeded to trial. The State presented
the recording of defendant's videotaped custodial interview. In the interview,
the following colloquy occurred between defendant and Trooper Kilmurray:
[Defendant]: [I]f you're the judge, how am I wrong?
[Trooper]: You're asking me honestly?
[Defendant]: Yes.
A-4932-17T4
5
....
[Defendant]: It's wrong to leave?
[Trooper]: [I]t's wrong to leave. . . . [I]f you're there
and [the victim is] there, and now we
have the witnesses there, we can start . . .
working this thing out. But . . . as you
leave, it looks really bad for you to leave.
....
[Trooper]: [I]t doesn't bode well for you . . . when
you don't hang . . . around. Because if
you're in the right, if you felt [you] didn't
do anything wrong[.] [I]f I felt that
way, . . . if the guy pushed me, I probably
wouldn't hit him in the face with a tire
iron . . . but if someone pushed me or had
punched me, I'm going to take a swing
back. [When] the cops show up, . . . I'm
going to wait there until the cops get
there to say he hit me first, I punched him
back, I was protecting myself, ask any of
these people. That's what I would do.
And I think that's what you would do,
too. That's what most people that think
they're right would do. People that think
that they fucked up . . . [think] I got to
get away from this situation and cool
down before it gets worse. Is the way it
seems to me. . . . that's how it looks to
me.
To be honest with you. You . . . asked
me . . . that's how it looks to me.
....
A-4932-17T4
6
[Trooper]: I mean, fortunately for you, this guy . . .
he must be a tough dude, because if I got
hit in the head with . . . a tire iron, . . .
and my eye was swollen . . . shut, I'd be
down for the count. And he was back up
on his feet talking to us when he got
there[.]
[Defendant]: Yeah.
[Trooper]: I mean you got to be thankful . . . because
you could have . . . killed him. Do you
understand?
[Defendant]: I understand.
The next day, the trial judge addressed Trooper Kilmurray's statements
regarding the significance of defendant departing from the scene and hitting
K.M. in the head, and concluded his comments amounted to opinion rather than
evidence. Defense counsel explained he included the statements as part of his
trial strategy but agreed with the trial judge's suggested curative instruction.
The judge then provided the jury the following instruction:
Toward the end of the statement, the trooper had
expressed an opinion about defendant's actions that
evening, or earlier in the evening. What I want to tell
you is [Trooper Kilmurray's] opinion is irrelevant. It's
your opinion about the facts and defendant's conduct
that matters. You cannot make an inference about
defendant's conduct merely because the trooper came to
a particular opinion. It's up to you as jurors to
determine the facts and to decide the inferences that are
to be drawn from those facts.
A-4932-17T4
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The jury found defendant guilty of second-degree aggravated assault
causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1), third-degree aggravated
assault with a deadly weapon, N.J.S.A. 2C-12-1(b)(2); and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).2
On March 7, 2014, the trial judge sentenced defendant. Defense counsel
urged the court to find mitigating factors number five, N.J.S.A 2C:44-1(b)(5)
(the victim induced or facilitated defendant's conduct); six, N.J.S.A 2C:44-
1(b)(6) (defendant has or will compensate the victim); and eleven, N.J.S.A.
2C:44-1(b)(11) (imprisonment would entail excessive hardship), weighed in
favor of defendant.
The judge merged the two third-degree convictions into the second-degree
aggravated assault causing serious bodily injury conviction. The judge found
aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); six,
N.J.S.A. 2C:44-1(a)(6) (criminal history and seriousness of conviction); and
nine, N.J.S.A. 2C:44-1(a)(9) (deterrence). After finding that only mitigating
factor eleven applied, the judge sentenced defendant to a ten-year term of
2
The jury found defendant not guilty of third-degree endangering an injured
victim, N.J.S.A. 2C:12-1.2; and third-degree hindering apprehension, N.J.S.A.
2C:29-3(b)(1).
A-4932-17T4
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imprisonment, subject to eighty-five percent ineligibility for parole, pursuant to
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed his conviction and sentence, and we affirmed. Ellis,
slip op. at 18. Defendant argued his trial counsel's failure to object to Trooper
Kilmurray's statements regarding the significance of defendant departing from
the scene and of him hitting the victim in the head with a tire iron amounted to
ineffective assistance of counsel. Id. at 14. We declined to consider that
argument, concluding it was more suitable for PCR. Ibid. We found no plain
error "[g]iven the relatively benign nature of the trooper's statements as well as
the trial court's thorough curative instructions . . ." Id. at 15. We also addressed
whether the trial judge imposed an excessive sentence and found the judge
balanced "all applicable factors" and concluded we had "no basis to interfere
with the judge's reasoned and appropriate exercise of discretion." Id. at 18.
In December 2016, defendant filed the PCR petition under review. On
April 30, 2018, the PCR judge heard oral argument on defendant's petition. PCR
counsel argued the trial judge provided an inadequate jury instruction the day
after trial counsel failed to object to Trooper Kilmurray's opinion testimony,
which "was too little too late" to cure the error. The judge rejected the argument,
A-4932-17T4
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concluding that despite the one-day delay, the instruction adequately corrected
the error.
The judge addressed whether trial counsel's failure to object to Trooper
Kilmurray's testimony amounted to ineffective assistance of counsel and found
trial counsel's actions were a "strategic decision" because the trooper's
comments suggested defendant expressed remorse. He ruled that, "[e]ven
assuming arguendo" trial counsel's performance satisfied the first prong of
Strickland,3 his performance did not satisfy the second prong because the "court
instructed the jury not to consider the challenged evidence."
The judge also ruled trial counsel did not err by failing to argue mitigating
factors eight and nine at sentencing because the record revealed in 2000
defendant was convicted of aggravated assault, similar in nature to the current
circumstances. He ruled "counsel [was] not obligated to argue mitigating factors
that have no basis in fact or cannot be established by the circumstances." The
judge also ruled appellate counsel did not err by failing to argue mitigating
factors eight and nine on direct appeal because appellate counsel did in fact
attempt to raise the argument but this court declined to address the argument,
concluding it was better suited for PCR.
3
Strickland v. Washington, 466 U.S. 688 (1984).
A-4932-17T4
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This appeal followed, with defendant presenting the following arguments:
POINT I
THE PCR COURT ERRED WHEN IT FOUND
DEFENDANT HAD FAILED TO ESTABLISH A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL.
(1) Trial counsel allowed Trooper Kilmurray to provide an
impermissible opinion as to defendant's guilt.
(2) Trial counsel was ineffective by failing to adequately
argue certain aggravating and mitigating factors at
sentencing.
(3) Trial counsel's cumulative errors denied his client the right
to effective legal representation.
POINT II
APPELLATE COUNSEL WAS INEFFECTIVE FOR
FAILING TO RAISE THE SENTENCING ISSUES ON
DIRECT APPEAL.
POINT III
AS THERE WERE GENUINE ISSUES OF MATERIAL
FACTS IN DISPUTE, AN EVIDENTIARY HEARING WAS
REQUIRED.
Following our review of these arguments, in light of the record and
applicable law, we affirm.
A-4932-17T4
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II
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the petitioner must set forth specific facts that
"provide the court with an adequate basis on which to rest its decision." State
v. Mitchell, 126 N.J. 565, 579 (1992).
A defendant must prove two elements to establish a PCR claim that trial
counsel was constitutionally ineffective: first, that "counsel's performance was
deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[;]" second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694; accord State v. Fritz, 105 N.J. 42, 58
(1987). "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." State v. Harris, 181 N.J. 391, 432 (2004) (quoting
Strickland, 466 U.S. at 694).
To prove the first element, a defendant must "overcome a strong
presumption that counsel exercised reasonable professional judgment and sound
trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542
A-4932-17T4
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(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,
147 (2011)). To prove the second element, a defendant must demonstrate "how
specific errors of counsel undermined the reliability of the finding of guilt."
United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
A
Defendant argues trial counsel provided ineffective assistance of counsel
by permitting the jury to hear parts of Trooper Kilmurray's comments during
defendant's videotaped custodial interview. Defendant further argues trial
counsel failed to ask for a prompt curative instruction from the trial judge.
On defendant's direct appeal, we concluded trial counsel's failure to object
to certain portions of Trooper Kilmurray's testimony did not constitute plain
error, and the trial judge's curative instruction did not create an unjust result.
The PCR judge found trial counsel strategically decided not to object to the
Trooper Kilmurray's testimony because the testimony immediately preceding it
portrayed defendant as remorseful toward the victim. He also found, even if the
decision satisfied the first prong of Strickland, defendant could not satisfy the
second prong of Strickland because the error would not have changed the
outcome of trial.
A-4932-17T4
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The record reveals trial counsel employed a reasonable trial strategy
specifically utilizing portions of the comments and opinions expressed by
Trooper Kilmurray during his interview of defendant. Trial counsel used the
testimony to show that defendant expressed remorse following the incident. The
testimony also attempted to establish defendant did not act intentionally and left
the scene because he believed the victim sustained only minor injuries. Like the
PCR judge, we find defendant failed to overcome the "strong presumption" that
his counsel executed trial strategy when he declined to redact the portions of
testimony at issue. Nash, 212 N.J. at 542.
We also agree with the PCR judge's finding that the error clearly does not
satisfy the second prong of the Strickland test. Even if defendant overcame the
strong presumption of trial strategy, the trial judge issued a reasonable curative
instruction the following morning. Therefore, the record does not establish a
reasonable probability the result would have been different if trial counsel's
alleged error never occurred. Harris, 181 N.J. at 432.
B
Defendant also argues the PCR judge erred by declining to find both trial
and appellate counsel ineffective for inadequately arguing mitigating factor
eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of
A-4932-17T4
14
circumstances unlikely to recur), and mitigating factor nine, N.J.S.A. 2C:44-
1(b)(9) (the character and attitude of defendant indicates he is unlikely to
commit another offense).
"[T]he failure to present mitigating evidence or argue for mitigating
factors" can be ineffective assistance of counsel where "mitigation evidence was
withheld from the sentencing court." Hess, 207 N.J. at 154. Here, however,
"[t]he record before us contains no indication of any similar withholding from
the trial court of information that could bear on the court's sentencing analysis."
State v. Friedman, 209 N.J. 102, 121 (2012). Defendant fails to identify rational
mitigating evidence that trial counsel or appellate counsel should have
advanced.
Trial counsel argued mitigating factors five, six and eleven weighed in
defendant's favor but the trial judge found only mitigating factor eleven. We
previously concluded the trial judge addressed "all" applicable factors and found
no basis to interfere with the "[trial] judge's reasoned and appropriate exercise
of discretion." State v. Ellis, slip. op. at 18.
Addressing mitigating factors eight and nine, the PCR judge found the
factors "inapplicable" because the defendant was previously convicted of an
aggravated assault similar in nature to the current crime. Therefore, he ruled
A-4932-17T4
15
there was no factual basis to argue the two mitigating factors. We agree with
the PCR judge's determination because defendant's past criminal record
completely undermines his argument. Defendant fails to identify rational
mitigating evidence that trial counsel or appellate counsel should have
advanced. Friedman, 209 N.J. at 121.
C
Defendant further argues the PCR judge abused his discretion by denying
an evidentiary hearing, asserting the existence of genuine issues of material fact.
PCR courts are not required to conduct evidentiary hearings unless the defendant
establishes a prima facie case and "there are material issues of disputed fact that
cannot be resolved by reference to the existing record." R. 3:22-10(b). "To
establish such a prima facie case, the defendant must demonstrate a reasonable
likelihood that his or her claim will ultimately succeed on the merits." State v.
Marshall, 148 N.J. 89, 158 (1997) (alteration in original). Speculative assertions
are insufficient to establish a prima facie case of ineffective assistance of
counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
The record amply supports the PCR judge's findings and conclusions.
Defendant has not shown "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
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Strickland, 466 U.S. at 694. He was unable to demonstrate the required
prejudice. Having failed to establish a prima facie case, defendant was not
entitled to an evidentiary hearing. Preciose, 129 N.J. at 462. Accordingly, the
PCR court did not abuse its discretion in denying an evidentiary hearing.
To the extent we have not addressed any arguments raise by plaintiff, we
have deemed such arguments lacking in sufficient merit to warrant comment in
a written opinion. R. 2:11-3(e)(2).
Affirmed.
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