STATE OF NEW JERSEY VS. PHILIP SEIDLE (15-11-1963, 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NOT FOR PUBLICATION WITHOUT THE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-1485-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILIP SEIDLE,
a/ka/ PHILIP T. SEIDLE,

Defendant-Appellant.
________________________

Argued March 8, 2021 – Decided July 22, 2021

Before Judges Suter and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 15-11-
1963.

Robin Kay Lord argued the cause for appellant.

Maura K. Tully, Assistant Prosecutor, argued the cause
for respondent (Christopher J. Gramiccioni, Monmouth
County Prosecutor, attorney; Maura K. Tully, of
counsel and on the brief).

PER CURIAM
 Defendant Philip Seidle pleaded guilty to first-degree aggravated

manslaughter and second-degree endangering the welfare of a child. Defendant

appeals an October 29, 2019 order which denied defendant's petition for post-

conviction relief (PCR) and his request for an evidentiary hearing. Defendant

argues that he received ineffective assistance of counsel because his defense

counsel did not enlist a qualified mental health expert. Alternatively, defendant

argues that he has at least presented a prima facie case of ineffective assistance

of counsel, entitling him to an evidentiary hearing. We affirm for the reasons

set forth below.

I.

Defendant and Tamara Seidle divorced during May 2015. On the morning

of June 16, defendant drove past the home where he and Ms. Seidle lived before

their separation. He saw a car in the driveway he did not recognize and recorded

the license plate number in his phone. Defendant called and asked Ms. Seidle

who owned the car. She told him it was none of his business and hung up. After

online research, defendant discovered that Ms. Seidle's boyfriend was from

Georgia, matching the license plate for the car. Defendant concluded that the

car belonged to the boyfriend.

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 That same day, defendant planned to take his seven-year-old daughter

dress shopping for a father-daughter dance. As he and his young daughter left

to go shopping, defendant brought his gun belt with his service weapon.

While in the car with his daughter, defendant called Ms. Seidle again.

Defendant asked her about the car in the driveway; she responded once again it

was none of his business. Defendant told Ms. Seidle that if the boyfriend was

living there, he did not approve. Defendant then asked his daughter about the

boyfriend; she told him the man has been living there for about two weeks.

Defendant believed Ms. Seidle was attempting to replace him, as a father, with

her boyfriend.

After talking with his young daughter, defendant drove to Ms. Seidle's

place of employment, a church in Asbury Park. When he arrived, she was in her

car and fled the parking lot at a high rate of speed; defendant pursued. Defendant

rammed Ms. Seidle's car with his car and they came to a stop. Defendant exited

his car holding his service weapon and fired a total of twelve shots, in two

separate volleys, into Ms. Seidle's car, killing her.

After the second volley, defendant held his gun to his head. He told

responding officers he would surrender if he was able to see his children. The

3 A-1485-19
officers successfully negotiated with defendant and removed his young daughter

and Ms. Seidle from their respective cars.

During the incident, defendant texted his children, "[y]our mother is dead

because of her actions and yours, good-bye forever." Defendant also texted his

friend, "I got tired of Tamara's shit and shot her . . . [s]he fucked with me too

many times." Defendant asked for his children to be brought to the prosecutor's

office in Asbury Park. After the police brought them to the office, he

surrendered.

Defendant was charged with three counts: (1) first-degree murder,

N.J.S.A. 2C:11-3(a)(1); (2) second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and (3) second-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a). On March 10, 2016, defendant

pleaded guilty to counts one and three. Count one was amended to aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1). Count two was dismissed. The State

agreed to recommend a thirty-year term of incarceration with an eighty-five

percent parole ineligibility term on count one and a ten-year term of

incarceration on count three, running concurrently.

During the plea colloquy, the court asked defendant whether he was

"suffering from any physical or mental condition that might affect his ability to

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understand what is going on in court [that day] or to make a knowing and

voluntary decision." Defendant replied "no." The court asked him whether he

was able to read and understand everything in the agreement, and if he went over

the agreement with his attorney. Defendant replied "yes." The court asked

defendant whether his attorney "answered all of [his] questions" and whether he

was "satisfied with his representation." Defendant replied "yes." The court

asked if defendant needed further time to speak with his attorney, he responded

"[n]o, I don't."

Defendant recounted the events which lead to the charges against him, and

his attorney asked him questions concerning the charges. The following

exchange between defendant and counsel took place:

Q. Mr. Seidle, first, you and I have discussed what
the proofs would have to be to find you guilty of
aggravated manslaughter and I've explained that aspect
of the law to you; am I correct?

A. Yes.

Q. And you've been in law enforcement over 20
years and are familiar generally, although you're not a
lawyer, with the laws in the State of New Jersey for
criminal offenses?

A. Yes, I am.

Q. So I explained to you that what aggravated
manslaughter means under the statute is that the actor,

5 A-1485-19
in this case you, recklessly caused the death [of] the
victim under circumstances manifesting extreme
indifference to the value of human life. And I've
explained what all that means to you, correct?

A. Yes, you have.

Q. Essentially what that means is that you
consciously disregarded known and unjustifiable risks
that there was a probability the victim would die when
you shot at or in her direction; am I correct?

A. Yes.

Q. So with respect to Count l as amended to
aggravated manslaughter, you knew that at the time that
you were shooting at or in the direction of the victim,
especially considering your law enforcement
background and your firearms training, that by firing
what has been calculated to be 12 shots into the vehicle
of the victim you recklessly under circumstances
manifesting extreme indifference to the value of human
life created a probability that the victim would be
killed?

A. Yes.

Q. And by doing that you consciously disregarded
known and unjustifiable risks that that probability
would occur that she would die, correct?

A. Yes.

Q. And, in fact, as a result of shooting at or in her
direction she was, in fact, struck and killed by bullets
from a handgun that you discharged?

A. Yes.

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Q. And so how do you plead as to Count 1 amended
to be aggravated manslaughter, guilty or not guilty?

A. Guilty.

....

Q. Now, also, in reviewing the discovery in this case
and considering whether you should take a plea versus
going to trial, we had discussed certain potential
defenses that may or may not have been available to
you such as the defenses of diminished capacity or
some form of mental disease or defect; am I correct?

A. Yes, that's correct.

Q. As well as a potential defense of
passion/provocation, which could potentially reduce
murder down to manslaughter, I've discussed that with
you as well –

A. Yes.

Q. -- is that right?
And you understand by taking this plea today that you
are giving up the right to assert those defenses before a
jury for a jury to decide whether they apply and whether
they would completely excuse your conduct with
respect to the diminished capacity, mental disease or
defect defense, or reduce the charge down to
manslaughter from murder with respect to Count 1.
You understand you're giving that up?

A. Yes.

Q. You also understand that you are nevertheless
reserving the right to argue to the Court at sentencing,
as we will, that certain mitigating factors apply in this

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case for the Court to consider sentencing at the lower
end of the range with regard to both Count 1 and Count
3. We've talked about that as well?

A. Yes.

Q. And specifically, I've indicated to you with
regard to [m]itigating [f]actor No. 4, which indicates
there [were] substantial grounds tending to excuse or
justify defendant's conduct though failing to establish a
complete defense, that we will make an argument to the
Court that that mitigating factor applies but it's going to
be up to the [j]udge ultimately to decide whether it
applies. Do you understand that?

A. Yes.

Q. And if it applies, it's up to the [j]udge to
determine how much weight or what quality he's going
to give to that particular mitigating factor in
determining your sentence?

A. Yes.

Q. And you also understand that the State is going
to argue against the mitigating factors and they're going
to argue in favor of certain aggravating factors that they
seek, which we'll challenge, which the Court has to
make decisions on as well. You understand that?

A. I thought it said here that they were dismissing
the aggravating factors.

Q. Yeah, those -- the aggravating factors as to the
murder charge, but just as to a general sentence, to
achieve a sentence at the top end of the range, there's
other aggravating factors --

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A. Okay.

Q. -- that they're going to argue about.

A. Okay.

Q. Do you understand that?

A. Yes.

Q. Those are different than the ones they're
dismissing?

A. All right.

Q. So you're giving up the entitlement to ask for a
complete defense but reserving the right to argue
certain mitigating factors is the bottom line of this. And
you understand that?

A. Yes.

Q. And you're making that decision freely,
knowingly, and intelligently?

A. Yes.

Q. After consultation with me; is that correct?

A. Yes.

Q. Do you have any other questions of me with
regard to that particular issue?

A. No.

9 A-1485-19
 II.

A. The Sentencing Hearing

The sentencing court found defendant was fifty-years of age at the time of

the sentencing, he had no prior criminal history, and that this was his first

interaction with the criminal justice system. Further, defendant was a sergeant

with the Neptune Township Police Department at the time of the killing, and he

had been employed there since July 1, 1993. The court found defendant had no

substance abuse or alcohol problems. Defendant had a history of both marital

and mental health counseling.

The court applied aggravating factor one. 1 The court noted the tragic

circumstances of the victim's death. Defendant chased the victim through

Asbury Park at high speeds, while his daughter was in the passenger seat of his

car. After defendant rammed the victim's car with his, he emerged and fired two

"volley[s] of shots," one volley in the side window, then minutes later, he fired

a second volley through the front of the car.

The court applied aggravating factor two. 2 The court found Ms. Seidle

"was caused to suffer very serious physical and psychological injuries prior to

1
See N.J.S.A. 2C:44-1(a)(1).
2
See N.J.S.A. 2C:44-1(a)(2).

10 A-1485-19
her death." In addition, the court found that "chasing, ramming, and trapping

[the victim] made her particularly vulnerable or incapable of resistance." The

court also noted the young age of defendant's daughter, who was seven years old

at the time of the shooting.

The court applied aggravating factor three. 3 The court applied the factor

because defendant "has shown himself, through the commission of these

offenses, to be a person capable of incredibly serious acts of violence."

However, the court only placed moderate weight on this factor because

defendant was a law-abiding citizen prior to the shooting, and "this level of

violence appears to be an aberration."

The court applied aggravating factor nine. 4 The court gave the factor

moderate weight. The court explained the need for general deterrence, "to deter

any individual who might cause the death of another person."

The court found mitigating factor four did not apply. 5 The court

acknowledged it received submissions and arguments on the record indicating

defendant was very distraught and upset over visitation. The court found these

3
See N.J.S.A. 2C:44-1(a)(3).
4
See N.J.S.A. 2C:44-1(a)(9).
5
See N.J.S.A. 2C:44-1(b)(4).

11 A-1485-19
arguments did not rise to substantial grounds tending to excuse or justify

defendant's conduct and concluded there was insufficient evidence to support a

finding of mitigating factor four.

The court applied mitigating factor seven. 6 The court applied the factor

because defendant had no criminal history until this matter; defendant had been

employed as a police officer since 1993; and defendant had received an

honorable discharge from the Navy. The court gave this factor moderate weight.

The court found the aggravating factors substantially outweighed the

mitigating factors. The court imposed the sentence we stated earlier.

B. The Post-Conviction Relief Hearing

On April 3, 2019, defendant filed a petition for PCR. Defendant's position

in his PCR motion was essentially the same as it is before us: "plea counsel was

ineffective in that he failed to have defendant evaluated by a forensic

psychologist regarding his state of mind at the time of the incident."

PCR counsel retained Dr. Gerald Cooke, who conducted a psychological

evaluation of defendant and wrote a report. Dr. Cooke stated that defendant

experienced a dissociative trance, which he described as a "condition

characterized by constriction of consciousness, depersonalization, derealization,

6
See N.J.S.A. 2C:44-1(b)(7).

12 A-1485-19
perceptual disturbances, micro-amnesias, transient stupor or alterations in

sensory-motor functioning." Dr. Cooke concluded that defendant was not

"acting in a deliberate and intentional manner," because he was "experiencing

gross impairment in cognitive functioning" and was "overwhelmed by [his]

emotions." Consequently, Dr. Cooke opined defendant lacked capacity to form

specific intent.

Dr. Cooke also concluded defendant did not meet the diagnostic criteria

for any personality disorder or mental illness. His opinion was defendant

developed "Adjustment Disorder with Mixed Depressed Mood and Anxiety

around 2012" which "increased in severity to the point that by June 2015 he was

suffering from a major depressive disorder." Dr. Cooke stated that either the

dissociative trance or the major depressive disorder constituted diminished

capacity, and the two conditions combined would lead to a more substantial and

severe diminished capacity.

On October 29, 2019, the court heard argument on defendant's petition.

Defendant argued that had defense counsel obtained a psychological evaluation,

or reviewed all the records, he could have proceeded to trial and presented a

diminished capacity defense. The PCR court was not persuaded that defense

13 A-1485-19
counsel was ineffective for failing to obtain an expert evaluation of petitioner's

mental state.

The court found defendant knowingly accepted the plea agreement. The

court noted that on several occasions during the plea colloquy, defendant

"acknowledged he knew that by shooting at or in the direction of the victim,

especially considering his law enforcement background and firearms training,

he recklessly and consciously disregarded known and unjustifiable risks" that

the victim would die. The court found defendant admitted he considered

accepting the plea versus going to trial. Additionally, defendant knowingly

waived his right to assert any defense before a jury after discussing the

diminished capacity defense and other mental disease defenses with counsel.

The court concluded that "[i]t cannot now be said he was under some

dissociative trance . . . at the time of the incident based on one psychological

evaluation performed after both the plea and sentencing in support of the PCR."

Citing Strickland v. Washington, 466 U.S. 668, 689 (1984), the court expressly

found "whether or not to offer expert testimony is a strategic choice made by

trial counsel and such decisions are virtually unchallengeable . . . ."

Defendant alternatively argued "that a psychological evaluation would

have provided him with more mitigating evidence in support of a lesser

14 A-1485-19
sentence." The PCR court noted defendant was making "essentially the same

argument as the defendant in State v. Hess, but the cases are distinguishable . .

. ." 7 The court found that unlike Hess, defense counsel utilized the mitigating

information in his possession. Thus, the question before the PCR court was "did

[defendant's counsel] have all of the information and would it have made a

difference." The PCR court noted defense counsel offered evidence regarding

mitigating factor four from defendant's self-selected psychological exam

records, and these records did not present substantial grounds for excusing

defendant's conduct. The court noted defense counsel did present evidence of

diminished capacity "before and at the time of the shooting" and defense counsel

raised diminished capacity on direct appeal, which was denied. 8

Furthermore, the PCR court found Dr. Cooke's report insufficient to

demonstrate prejudice because the report did not show a reasonable probability

that a jury would reduce the crime to manslaughter, or that the court would

lessen the sentence. "In fact, the report merely relays his opinion that defendant,

quote, lacked the capacity to perform – to form specific intents which addresses

the mens rea for murder rather than manslaughter." The PCR court specifically

7
State v. Hess, 207 N.J. 123 (2011).
8
State v. Seidle, No. A-1028-16 (App. Div. Feb. 07, 2017).

15 A-1485-19
found "[d]efense counsel's recommendation to accept the plea which limited his

sentencing risk to only [thirty] years as opposed to life in prison cannot in any

way be deemed deficient." Thus, the court found defendant did not make a prima

facie case for ineffective assistance of counsel, and therefore denied defendant's

request for an evidentiary hearing.

On appeal, defendant argues the following:

POINT I. THE LOWER COURT ERRED IN
DENYING DEFENDANT’S PETITION FOR POST-
CONVICTION RELIEF AS DEFENDANT
ESTABLISHED THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL AND
DID NOT KNOWINGLY AND INTELLIGENTLY
WAIVE HIS DIMINSIHED CAPACITY DEFENSE
AT THE TIME HE ENTERED INTO HIS PLEA
AGREEMENT.

POINT II. ALTERNATIVELY, THE DEFENDANT
HAS, AT THE VERY LEAST, PRESENTED A
PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF COUNSEL, ENTITLING HIM TO
A REMAND FOR AN EVIDENTIARY HEARING ON
HIS PETITION FOR POST-CONVICTION RELIEF.

III.

"Our standard of review 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). "[W]e will uphold the PCR court's findings that are supported

by sufficient credible evidence in the record." Ibid. (citing State v. Harris, 181

16 A-1485-19
N.J. 391, 415 (2004)). However, "[w]here, as here, the PCR court has not

conducted an evidentiary hearing, we review its legal and factual determinations

de novo." State v. Aburoumi, 464 N.J. Super. 326, 338–39 (App. Div. 2020)

(citing State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018)).

There is a two-prong test for ineffective assistance of counsel claims

arising from guilty pleas. First, defendant must show "counsel's assistance was

not 'within the range of competence demanded of attorneys in criminal cases . .

. .'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson,

411 U.S. 258, 266 (1973)). Second, defendant must show "that there is a

reasonable probability that, but for counsel's errors, [he or she] would not have

pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J.

339, 351 (2012) (alteration in original) (quoting State v. Nunez-Valdez, 200 N.J.

129, 139 (2009)).

When assessing an attorney's performance, "every effort [must] be made

to eliminate the distorting effects of hindsight, to reconstruct the circumstances

of counsel's challenged conduct, and to evaluate the conduct from the counsel's

perspective at the time." DiFrisco, 137 N.J. at 457 (quoting Strickland, 466 U.S.

at 689). A reviewing court must "indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance,"

17 A-1485-19
which means the defendant must overcome the presumption that "the challenged

action 'might be considered sound trial strategy.'" Ibid. (quoting Strickland, 466

U.S. at 689).

Defendant argues that based on his mental health history and his past

psychological and emotional issues, his counsel should have retained a qualified

mental health expert. Defendant asserts the expert would have "investigate[d]

whether [defendant] had a state of mind defense." Therefore, defendant argues

he was denied effective assistance of counsel and his decision to plead guilty

was not informed. We disagree.

During the plea hearing, defendant testified that counsel answered his

questions and that he was satisfied with his legal representation. Defense

counsel asked defendant whether he recalled being told what the State needed

to prove in order to find him guilty of aggravated manslaughter. Counsel also

asked defendant whether he recalled what aggravated manslaughter was under

the statute and what he was being charged with. Defendant responded in the

affirmative to both questions. Next, counsel asked the following question:

[Y]ou knew that at the time that you were shooting at
or in the direction of the victim, especially considering
your law enforcement background and your firearms
training, that by firing what has been calculated to be
12 shots into the vehicle of the victim you recklessly
under circumstances manifesting extreme indifference

18 A-1485-19
 to the value of human life created a probability that the
victim would be killed?

Defendant answered yes. Counsel then asked defendant about going to trial

versus taking the plea deal, as well as about their discussion on defenses.

Defendant agreed he had waived his opportunity for a jury trial by agreeing to

plead guilty. As to potential defenses, counsel asked defendant about

diminished capacity, mental disease or defect, and passion or provocation.

Defendant agreed that they discussed those potential defenses. Further,

defendant agreed that he and counsel discussed arguing for mitigating factor

four during sentencing.

Defense counsel argued at length for mitigating factor four during

sentencing. Counsel asked the court to find defendant acted with a reckless

mental state rather than a purposeful knowing mental state. He noted

defendant's employer required him to submit to an independent psychological

exam as part of a return-to-work evaluation. Counsel argued the exam records

showed defendant was suffering from emotional and financial strain due to the

divorce. Defendant felt that Ms. Seidle was interfering with his relationship

with his children. Defense counsel noted the exam records showed defendant

was emotional and tearful when talking about his relationship with his children.

19 A-1485-19
Counsel argued these records showed defendant had a "psychological and

emotional problem…not fully addressed" before the shooting.

We find the record shows defense counsel was well within the range of

competence demanded of attorneys in criminal cases. DiFrisco, 137 N.J. at 457

(quoting Tollett, 411 U.S. at 266).

We view counsel's strategic decisions under the "strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance." Ibid. (Strickland, 466 U.S. at 689). The record shows defendant

and his attorney discussed different legal strategies. They discussed what the

State was required to prove to in order to convict defendant of murder and

aggravated manslaughter if they went to trial. Further, the record shows they

discussed diminished capacity and provocation defenses. Defendant and his

counsel specifically discussed that defendant understood he was giving up these

defenses and the chance for a jury to hear them. Defense counsel used

defendant's return-to-work medical records to argue mitigating factor four. Our

review of the record leads us to conclude defendant failed to overcome the strong

presumption that his counsel's actions were sound trial strategy.

Defendant also failed to overcome the presumption against a finding of

ineffective assistance where defense counsel informed defendant of the pros and

20 A-1485-19
cons of going to trial rather than taking the plea. Additionally, defense counsel

argued that the mens rea for murder did not fit defendant's crime; rather the mens

rea for aggravated manslaughter fit defendant's diminished capacity before and

at the time of the incident. Looking at counsel's conduct from his perspective

and "eliminat[ing] the distorting effects of hindsight" the strategic decision not

to have defendant evaluated and to plead guilty to aggravated manslaughter

"might be considered sound trial strategy . . . ." Ibid. (quoting Strickland, 466

U.S. at 689). Had counsel not done so, defendant would have been exposed to

the risk of a murder conviction at trial.

Defendant next argues his case is similar to Hess. He argues counsel did

not exercise reasonable efforts to ascertain whether defendant had a diminished

capacity. He further argued that had trial counsel retained an expert he would

have learned defendant did not possess the required mental state for murder.

The case before us is distinguishable from Hess. In Hess, the Court held

the defendant was denied her constitutional right to the effective assistance of

counsel. Hess, 207 N.J. at 160. The "defendant pled guilty to aggravated

manslaughter for killing her husband . . . ." Id. at 129. The defendant's attorney

agreed to refrain from seeking a lesser sentence under the agreement. Id. at 137.

Consequently, the defendant believed she could not mention any evidence of her

21 A-1485-19
abuse at the hands of the victim or attempt to argue for mitigating factors at

sentencing. Id. at 138.

At sentencing, the defendant's attorney possessed nine witness statements

that corroborated "his client's account of physical and mental abuse . . . ." Id. at

148. The defendant's expert generated a report stating that defendant's

relationship with victim "is consistent with a pattern of moderate-to-severe

intimate partner abuse, including physical and psychological abuse" and

consistent with Battered Women's Syndrome. Ibid. The Hess Court stated that

Battered Women's Syndrome warranted an argument for mitigating factor four.

Id. at 149. The Court also noted that defense counsel failed to present evidence

to support mitigating factors three, five, eight, or nine. The Court concluded

that this "failure to bring relevant information in his file to the attention of the

trial court so that the court could independently identify and weigh mitigating

factors cannot be ascribed to strategy or reasonable professional judgment . . .

." Id. at 149.

Like the defendant in Hess, defendant pleaded guilty to aggravated

manslaughter, however the similarity ends there. Defense counsel in Hess

possessed evidence to support mitigating factors but failed to argue them based

on a restrictive agreement. As we noted earlier, this record reveals defense

22 A-1485-19
counsel's strenuous efforts to argue mitigating factors at sentencing. We are

satisfied that defendant and his counsel believed pleading guilty to aggravated

manslaughter was less risky than going to trial on a murder charge. We find

defendant's decision to accept the plea agreement and argue for a lower sentence

constituted appropriate strategy.

Further, unlike in Hess, defense counsel here was able to argue for

mitigating factor four based on defendant's history of emotional and mental

problems stemming from his divorce. Defense counsel presented evidence of

defendant's mental state before the killing from a return-to-work evaluation done

at the request of the Neptune Police Department. Thus, unlike Hess, defendant

had effective assistance of counsel at sentencing. We conclude defendant

received effective assistance of counsel and knowingly waived his diminished

capacity defense.

IV.

Defendant argues in the alternative that he made a prima facie case for

ineffective assistance of counsel, entitling him to an evidentiary hearing.

"Rule 3:22-10 does not require evidentiary hearings to be held on post-

conviction relief petitions," but rather it "recognizes judicial discretion to

conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (citing State v.

23 A-1485-19
Odom, 113 N.J. Super. 186, 273 (App. Div. 1971)). "Thus, trial courts ordinarily

should grant evidentiary hearings to resolve ineffective-assistance-of-counsel

claims if a defendant has presented a prima facie claim in support of post-

conviction relief." Id. at 462–63; see also State v. Jones, 219 N.J. 298, 311

(2014). To establish a prima facie claim of ineffective assistance of counsel, a

defendant must demonstrate the reasonable likelihood of succeeding under the

test set forth in Strickland, 466 U.S. at 694. Preciose, 129 N.J. at 463.

For the reasons amply set forth above, we find no merit to this argument.

Affirmed.

24 A-1485-19