STATE OF NEW JERSEY VS. PATRICK F. ALLEN (13-01-0043, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3201-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK F. ALLEN,

Defendant-Appellant.
________________________

Submitted March 22, 2021 – Decided April 22, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 13-01-
0043.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Carey J. Huff,
Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Patrick Allen appeals from a March 13, 2020 order denying his

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

affirm.

Defendant was convicted by a jury of murder and other charges related to

the killing of his wife, K.A.,1 after a domestic argument over finances. The trial

court sentenced him to thirty years subject to a thirty-year period of parole

ineligibility.

Defendant appealed, arguing that the trial court erred by not addressing

improprieties during jury selection, improperly admitting the State's experts'

testimonies, allowing prejudicial testimony from law enforcement officers,

failing to investigate claims of juror bias, and failing to properly instruct the jury

as to a certain issue. In an unpublished opinion, we affirmed defendant's

conviction. See State v. Allen, A-3576-14 (App. Div. Apr. 5, 2018). The

Supreme Court denied defendant's petition for certification. State v. Allen, 235

N.J. 461 (2018).

1
Out of respect for the privacy of the victim and related parties, this court uses
initials in its decision when referring to the victim. R. 1:38-3(c)(12).
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 In our earlier opinion, we set forth the facts leading to defendant's arrest

and conviction. Allen, slip op. at 2-4. We need not repeat them here.

In December 2018, defendant filed his petition for PCR, arguing that trial

counsel (1) failed to call defendant's expert witnesses "on Collection and

Processing of Forensic Evidence" or pay defendant's private investigator and

"operated under a conflict of interest" when he "pressured" defendant's family

for additional money before he would do so; (2) failed to "follow-up" with

witnesses; (3) failed to file an interlocutory appeal; (4) failed to investigate

evidence of an ATM receipt and cash that he had spent the day of the murder;

and (5) that trial counsel did not investigate the fact that defendant's vehicle had

a full tank of gas at the time of his arrest.

The focus of defendant's petition was that he received ineffective

assistance of counsel (IAC) based upon circumstances relating to his

relationship with trial counsel, which were not part of the trial record.

Specifically, defendant asserted that he had paid trial counsel a substantial sum

"for legal services that included expert witnesses" but that trial counsel

demanded mid-trial that defendant provide additional funds in order to secure

the experts' appearances in court. He argued that trial counsel rendered IAC

because he should have applied the last of the payments defendant had been

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making throughout the course of counsel's representation to fund the experts'

appearances at trial but that, instead, trial counsel applied this last payment to

counsel's legal fees. Consequently, defendant argues that necessary experts did

not appear on his behalf due to counsel's decision regarding allocation of funds.

Defendant provided documents that allegedly substantiated his claims.

They included a handwritten note trial counsel handed him during the trial that

stated counsel would need additional funds to secure the experts' appearances, a

certification that demonstrated that he had already paid trial counsel

$172,941.84 in legal fees but which did not specify how those fees were

allocated, and counsel's November 5, 2014 email to defendant's family

expressing that the experts' services were necessary and requesting the family

supply the funds needed to secure their appearances.

The PCR judge heard oral argument on defendant's petition on February

12, 2020, and on March 13, 2020, he issued an order denying defendant's petition

without an evidentiary hearing. In a written decision accompanying his order,

the PCR judge determined that defendant's challenges to the cleaning of the

crime scene, the resulting alleged loss of evidence, and his entitlement to an

adverse inference charge had already been ruled on by the trial court and could

have been argued on direct appeal, and these claims were therefore procedurally

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barred by Rule 3:22-4. He also found that, as to the merits of defendant's lost

evidence claim, the trial court had ruled that defendant failed to show that he

was prejudiced by the police's cleaning of the crime scene, that any particular

exculpatory evidence had been destroyed, or that any material exculpatory

evidence had been lost.

The PCR judge then found that defendant's arguments regarding witness

testimony were procedurally barred under Rule 3:22-4 because they could have

been raised on direct appeal, noting that the Appellate Division had already

considered testimony-based claims on direct appeal and that defendant had not

raised a cumulative error argument. The judge then concluded that none of the

exceptions to Rule 3:22-4's procedural bar applied.

The PCR judge continued to find that defendant's claims were additionally

barred by Rule 3:22-5 because there had already been a "prior adjudication upon

the merits" of his testimonial and spoliation claims. He explained that the

Appellate Division had already ruled on defendant's claims that he was

prejudiced by the admission of some State witnesses' testimony on direct appeal.

The judge also concluded that, as to defendant's claims regarding the

spoliation of evidence in connection with the cleaning of the crime scene, the

trial court had already ruled on the substance of these claims, and since the

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Appellate Division had already reviewed defendant's testimonial claims, the

PCR judge was bound by the court's ruling to "defer to the trial court's ruling as

law of the case."

Finally, the PCR judge concluded that, as to defendant's claim that his trial

counsel failed to remit funds necessary to secure expert witnesses' appearances

at trial, defendant had failed to establish a prima facie claim for PCR, finding

that defendant had not demonstrated that he was prejudiced by the experts'

absence and noting that "[t]here is no per se rule that requires trial attorneys to

seek out an expert." Accordingly, the PCR judge denied defendant's petition

without granting an evidentiary hearing. This appeal followed.

On appeal, defendant argues the following:

I. AS DEFENDANT PRESENTED A PRIMA
FACIE CASE OF [IAC] AND THERE WERE
GENUINE ISSUES OF MATERIAL FACT IN
DISPUTE, THE PCR COURT ERRED WHEN
IT DENIED HIS PETITION WITHOUT FIRST
HOLDING AN EVIDENTIARY HEARING.

A. Defendant's claims are not procedurally
barred.

B. Defendant is entitled to an evidentiary
hearing.

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 In a pro-se supplemental brief, defendant reiterates the arguments raised

in his merits brief, without adherence to Rule 2:6-2(a)(1) or (6) (requiring the

division of legal arguments into identified point headings). In this submission,

defendant essentially contends that had investigators been hired, they could have

looked at items found at the crime scene, such as a wool hat that did not have

his or his family's DNA on it, which could have supported a third-party guilt

defense, or the murder weapon—a frying pan—that he stated had only traces of

blood evidence. Also, the investigators could have produced more photographs

than did the State's investigators.

We are not persuaded by any of defendant's contentions, except, as noted

below, his argument that all his claims were not procedurally barred.

Where an evidentiary hearing has not been held, we "conduct a de novo

review of both the factual findings and legal conclusions of the PCR court."

State v. Harris, 181 N.J. 391, 419 (2004); see also State v. Blake, 444 N.J. Super.

285, 294 (App. Div. 2016).

At the outset, we conclude that the PCR judge erred to the extent he

determined that all of defendant's claims were procedurally barred under Rule

3:22-4 and Rule 3:22-5. However, having said that, because we agree with the

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PCR judge's conclusion as to the merits of defendant's claims, we need not dwell

on the error arising from the determination that all of the claims were barred.

Suffice it to say that defendant's claims that related to his alleged dispute

with his trial attorney over money were not part of the record in this matter,

making the claims "particularly suited for" PCR. State v. Preciose, 129 N.J.

451, 460 (1992). They would therefore have been inappropriate for

consideration on direct appeal. See Preciose, 129 N.J. at 461; see also State v.

Walker, 80 N.J. 187, 194 (1979) (holding, where the facts supporting a claim

that trial counsel failed to call an alibi witness were not in the trial record, the

claim should be raised in a petition for PCR, not on direct appeal). Moreover,

comparing defendant's claims on PCR about his dispute with his attorney to

those raised on direct appeal, we disagree that they were "either identical or

substantially equivalent." State v. Marshall, 173 N.J. 343, 351 (2002), and

therefore were not barred under Rule 3:22-5.

Turning to the merits of defendant's claims on PCR, we conclude that the

PCR judge correctly determined that defendant failed to demonstrate a prima

facie claim for IAC that warranted an evidentiary hearing. "The standard for an

[IAC] claim is . . . the same under both the United States and New Jersey

Constitutions." State v. Gideon, 244 N.J. 538, 550 (2021). To establish a

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violation of the right to the effective assistance of counsel, a defendant must

meet the two-part test articulated in Strickland v. Washington, 466 U.S. 668,

694 (1984), and adopted in State v. Fritz, 105 N.J. 42 (1987). Gideon, 244 N.J.

at 550. "A prima facie [claim] is established when a defendant demonstrates 'a

reasonable likelihood that his or her claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits.'" State

v. Porter, 216 N.J. 343, 356 (2013) (quoting R. 3:22-10(b)).

Under the first prong of the Strickland test, a defendant must show that

his attorney made errors "so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687.

Counsel's performance is deficient if it "[falls] below an objective standard of

reasonableness." Id. at 688.

Under the second prong, a defendant must show that counsel's "deficient

performance prejudiced the defense," id. at 687, because "there is a reasonable

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

proceeding would have been different." Id. at 694. "A reasonable probability

is a probability sufficient to undermine confidence in the outcome" of the trial.

Ibid. This prong is "far more difficult" to meet, and except in certain "egregious"

circumstances, prejudice must be proven, not presumed. Preciose, 129 N.J. at

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463-64; Fritz, 105 N.J. at 52, 61. When determining whether a defendant has

shown prejudice, the court should consider the strength of the State's evidence.

See Gideon, 244 N.J. at 556; State v. Pierre, 223 N.J. 560, 583 (2015)

("Important to the prejudice analysis is the strength of the evidence that was

before the fact-finder at trial.").

"[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." Strickland, 466 U.S. at 697; State v. Marshall, 148

N.J. 89, 261 (1997). "If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice . . . that course should be followed."

Strickland, 466 U.S. at 697.

Here, even assuming that defendant established that trial counsel's

performance was constitutionally deficient, he did not demonstrate that there

was a "reasonable probability" the outcome of the trial would have differed had

his experts testified. One expert, Dean Beers, a criminal defense investigator,

issued a report in which he concluded that a third-person assailant could not be

ruled out because much of the forensic evidence collected by police was not

tested and there was insufficient evidence to establish what, if any, weapon was

used by K.A.'s assailant. These conclusions—premised upon a lack of testing—

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are insufficient to establish a "reasonable probability" that the outcome of the

case would have differed. As we have recognized, "a convicted defendant who

does not have the results of a DNA test can never establish a reasonable

probability that the result of the proceeding would have been different if DNA

testing had been performed." State v. Cann, 342 N.J. Super. 93, 102-03 (App.

Div. 2001).

Beers's conclusion that there was insufficient evidence to determine the

instrumentality of K.A.'s death similarly falls short. Notably, this conclusion is

in stark contrast to the State's position—supported by a wealth of testimony and

physical evidence—that K.A.'s assailant used the nearby frying pan as a weapon.

Beers's report, despite concluding that there was "insufficient evidence . . . to

determine the instrument(s)" used by K.A.'s assailant, provides no basis for his

conclusion, and specifically does nothing to rebut the State's witnesses' detailed

testimony explaining the relation between K.A.'s injuries and the frying pan.

As to the other expert, Linda Reed, a crime scene investigator, defendant

argues that if trial counsel had called Reed to the stand, her testimony may have

entitled him to an adverse inference instruction based on the State's handling of

the crime scene. We disagree.

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 In determining whether an adverse inference for spoliation of evidence is

warranted, a court must consider "(1) the bad faith or connivance by the

government; (2) whether the evidence was sufficiently material to the defense;

and (3) whether the defendant was prejudiced." George v. City of Newark, 384

N.J. Super. 232, 243 (App. Div. 2006) (quoting State v. Dreher, 302 N.J. Super.

408, 483 (App. Div. 1997)). "Without bad faith on the part of the State, 'failure

to preserve potentially useful evidence does not constitute a denial of due

process of law.'" Ibid. (quoting Arizona v. Youngblood, 488 U.S. 51, 57

(1988)). If the defendant has not made a showing of bad faith, "relief should be

granted only where there is a 'showing of manifest prejudice or harm' arising

from the failure to preserve evidence." Ibid. (quoting Dreher, 302 N.J. Super.

at 489).

Defendant did not demonstrate that the State acted in bad faith. Moreover,

nowhere in Reed's report does she indicate what evidence may have been

missing from the crime scene upon inspection, or how the absence of that

evidence may have prejudiced defendant's case. Accordingly, defendant has not

demonstrated that he was prejudiced by trial counsel's failure to call either

expert, particularly given the "strength of the evidence" produced by the State.

Pierre, 223 N.J. at 583.

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 Similarly, defendant failed to establish that he was prejudiced by trial

counsel's alleged failure to hire an investigator to look into an ATM receipt, the

amount of cash he had on him at the time of his arrest, the "full" tank of gas in

his car, or to look into a "black wool Army [h]at" found in his garbage—all of

which he asserts would have corroborated his story.

"[W]hen a petitioner claims his trial attorney inadequately investigated his

case, he must assert the facts that an investigation would have revealed,

supported by affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification." Porter, 216 N.J. at 355

(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)); R.

1:6-6. Defendant provided no support for his contentions about what the

investigation would have revealed other than his "bald assertions." Cummings,

321 N.J. Super. at 170.

In any event, the evidence adduced at trial established that the police

investigating the scene searched defendant's person, his house, his vehicle, and

the surrounding areas and were unable to find any receipt for gas. Surveillance

footage covering all but a small portion of the lot in which defendant allegedly

parked to "cool off" did not show defendant's car in the lot at any point after

9:13 a.m. Additionally, defendant's assertion that he withdrew $100 from the

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ATM and spent $60 on gasoline was unsupported by the fact that defendant was

found with approximately $96 remaining on his person following his $100 ATM

withdrawal earlier that morning.

Similarly without any support was defendant's argument that he was

prejudiced by trial counsel's failure to have an investigator look into a "black

wool Army [h]at" found in a garbage can. Defendant argues that the hat did not

contain his DNA or that of his family members, which he claims established a

reasonable doubt as to whether an unidentified third party was on his property

the day of the murder. However, Beers's report stated that no DNA tests were

ever performed on the hat. Without those tests and corroborating results,

defendant did not establish "a reasonable probability that the result of the

proceeding would have been different" based upon DNA evidence that he does

not have. Cann, 342 N.J. Super. at 102-03.

Because we conclude that, "view[ing] the facts in the light most favorable

to" defendant, Preciose, 129 N.J. at 463, the PCR judge correctly determined

that defendant did not make a prima facie showing of IAC, we also conclude the

judge correctly denied defendant's request for an evidentiary hearing. See R.

3:22-10(b); Porter, 216 N.J. at 355.

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 Finally, to the extent not expressly addressed, we determine the balance

of defendant's arguments are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

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