STATE OF NEW JERSEY v. STEVEN ALICEA (16-02-0375, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2159-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN ALICEA, a/k/a
STEVEN J. ALICEA, ALLICA
STEVEN, LIL STEVEN, and
LIL SHINE,

Defendant-Appellant.
___________________________

Submitted May 11, 2022 – Decided June 24, 2022

Before Judges Gilson and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-02-0375.

Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).

Grace C. MacAulay, Camden County Prosecutor,
attorney for respondent (Kevin Jay Hein, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM

Defendant appeals from the November 12, 2020 Law Division order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

I.

Following a 2016 trial, a jury convicted defendant of fifteen crimes

stemming from two incidents that occurred on the same day in 2011 – the first

involving a robbery and murder, and the second involving a home invasion,

robberies, and aggravated sexual assaults. The convictions included first-degree

murder, N.J.S.A. 2C:11-3(a)(1) to (2); first-degree felony murder, N.J.S.A.

2C:11-3(a)(3); three counts of first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(4); three counts of first-degree robbery, N.J.S.A. 2C:15-1; second-

degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1;

second-degree burglary, N.J.S.A. 2C:18-2(a)(1); first-degree use of a juvenile

to commit a criminal offense, N.J.S.A. 2C:24-9; two counts of first-degree

witness tampering, N.J.S.A. 2C:28-5(a); and various weapons offenses.

Defendant was sentenced to an aggregate term of life without parole, plus sixty-

six years of imprisonment with forty-one years of parole ineligibility.

A-2159-20
2
 Defendant appealed his convictions and we affirmed in an unpublished

opinion. See State v. Alicea, No. A-1363-16 (App. Div. Oct. 19, 2018). The

Supreme Court subsequently denied certification. State v. Alicea, 237 N.J. 564

(2019). In our unpublished opinion, we detailed the substantial evidence

underlying defendant's convictions as follows:

The two incidents that gave rise to defendant's
convictions occurred on September 30, 2011. There
were three victims: L.B. was robbed and murdered;
G.T. was robbed; and B.C. was robbed and sexually
assaulted. At trial, G.T., B.C., and other witnesses
testified. On September 30, 2011, C.B., a friend of
L.B., had made arrangements to meet her at his home.
Anticipating her arrival, C.B. was looking out a
window on the second floor of his home. During the
evening, he saw a white van pull up, with L.B. riding in
the van. C.B. then saw three Hispanic men in hooded
sweatshirts approach the van. He noted that one of the
men's sweatshirts had a cartoon character's face on the
front. One of the men went to the driver's side of the
van and the other two men went to the passenger side.

L.B. exited the van and made her way towards
C.B.'s door. C.B. then went downstairs to let L.B. into
his home. Before he opened the door, he heard L.B.
say: "I don't have anything," and "leave me alone[.]"
C.B. then heard gunshots. C.B. went back upstairs,
looked out the window, and saw L.B. on his front steps.
He heard L.B. tell a woman, whom he knew as
"Cookie," "they shot me." Cookie called 911.

L.B. was taken to the hospital and ultimately died
from her injuries, which included a gunshot wound and
head trauma. Before she died, however, a sergeant who

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3
had responded to the report of the shooting spoke with
L.B. The sergeant testified that L.B. told him that three
males shot her.

That same night, G.T. was at his home, which
was located approximately two blocks from where L.B.
was shot. G.T. was over eighty years old at the time,
and B.C., his caretaker and friend, was living with him.

Just after 11 p.m., G.T. and B.C. heard bangs on
their door. G.T. opened the door and three men entered
the home, one of whom was pointing a gun at G.T.,
while a second held another gun. The men demanded
money from G.T. The men then told B.C. to take her
clothes off and forced her to perform oral sex on G.T.
Thereafter, B.C. was forced to perform oral sex on the
three men and each of the men raped her vaginally and
anally. When B.C. tried to resist the assaults, she was
punched and hit with a gun.

While at the home, the men searched for and took
various items, including watches, keys, a phone, coins,
and a chain. The men also threatened G.T. and B.C.
throughout the time that they were at the home.
Eventually, the men left the home. G.T. then called the
police.

The police arrived shortly thereafter and began to
search the area for the suspects. Police officers saw
several men, one of whom was wearing a red
sweatshirt, which matched G.T.'s description of one of
the suspects. When the police stopped to question the
men, they ran away. The officers pursued and
eventually apprehended defendant and [co-defendant

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 John] Gonzalez.[1] A third suspect escaped and
apparently has not been located.

While pursuing defendant, an officer saw
defendant discard a handgun, which was later
recovered. Officers pursuing Gonzalez observed
Gonzalez discard a blue sweatshirt. When police
officers later recovered the sweatshirt they found a
handgun wrapped in it. Gonzalez was searched incident
to his arrest, and the police found two watches and a
chain belonging to B.C. and G.T. After being arrested,
Gonzalez was taken to G.T.'s home and G.T. identified
Gonzalez as one of the men involved in the robbery and
sexual assaults. Thereafter, the police also recovered a
purse found on the front porch of G.T.'s home. L.B.'s
DNA was found on cosmetics inside the purse.

In the meantime, B.C. was taken to the hospital
and evaluated by a sexual assault nurse examiner
(SANE nurse). During the examination, B.C. described
the sequence of events leading up to the sexual assaults
and what the suspects looked like. After her
examination, B.C. was taken to the police station where
she identified defendant in a photo array.

....

At trial, a series of confiscated letters were
introduced that implicated defendant in the murder.
One of the letters was confiscated from defendant's
younger brother while the brother was in jail. Another
of the letters was intercepted when it was sent to
Gonzalez in jail. The State presented evidence that the

1
Gonzalez was indicted and charged in connection with the two incidents. He
was tried separately and convicted of numerous offenses. Following his
convictions, he filed a separate appeal, which resulted in his convictions being
affirmed. See State v. Gonzalez, No. A-0066-16 (App. Div. Oct. 19, 2018).
A-2159-20
5
 letters had been sent by defendant. The letters
contained admissions and indicated that defendant
would take revenge if Gonzalez gave a statement
against him.

[Alicea, slip op. at 2-6.]

Defendant filed a timely pro se petition for PCR alleging that his trial

counsel was ineffective for failing to: (1) call defendant's brother as a defense

witness; (2) file a "404(B) motion" as well as a motion to suppress and for a

Wade2 hearing; (3) provide defendant with full discovery prior to trial; (4) cross-

examine B.C. "on her prior criminal history"; (5) "point[] out that [defendant's]

DNA was not found on [B.C.'s] body"; (6) "hav[e] an expert witness testify" that

"the note/letter that was found in [the] county jail cell" was not written by

defendant; (7) "call a gang expert to determine if th[e] note/letter was gang

related"; and (8) object to "the county jail officer['s]" testimony that defendant

"was incarcerated at the time of his trial" and "request[] a curative instruction."

Defendant was assigned PCR counsel who filed a supplemental petition

and brief in which he added that trial counsel was ineffective for "not objecting

to the hearsay testimony of [the SANE nurse]" regarding B.C.'s complaints. In

support, counsel asserted that the nurse's testimony "did not fall within a hearsay

2
United States v. Wade, 388 U.S. 218 (1967).
A-2159-20
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exception," and because the nurse "testified before [B.C.]," it "impermissibly

bolster[ed B.C.]'s testimony" and undermined her cross-examination. Relying

on State v. Webster, 187 N.J. 254 (2006), PCR counsel also urged "the

[c]ourt . . . [to] consider any and all issues raised [in defendant's pro se petition]

which were not specifically augmented either through [counsel's] written

supplement or at the oral argument . . . and grant the relief requested in th[e]

PCR [petition]."

Following oral argument, the PCR judge denied PCR and held that

"defendant [was] not entitled to an evidentiary hearing with respect to his

claims." In an oral decision, the judge detailed the facts and procedural history

of the case, applied the governing legal principles, and concluded defendant

failed to establish a prima facie case of ineffective assistance of counsel (IAC)

by a preponderance of the evidence. Viewing the facts in the light most

favorable to defendant, the judge found defendant failed to show that either

counsel's performance fell below the objective standard of reasonableness set

forth 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), or that the outcome

would have been different without the purported deficient performance as

required under the second prong of the Strickland/Fritz test.

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 Addressing the claim raised by PCR counsel, the judge rejected the

contention that trial counsel's failure to object to the SANE nurse's "hearsay

testimony" amounted to IAC. The judge explained that because statements made

for the purpose of medical diagnosis or treatment are exceptions to the hearsay

rule, see N.J.R.E. 803(c)(4), "there was no valid basis for counsel to object . . .

and counsel's failure to object was not unreasonable under the circumstances ."

The judge stated:

A review of [the nurse's] testimony makes
evident that it falls within the medical diagnosis and
treatment exception to the hearsay rule. The events as
described to her by B.C. were critical to her treatment.
B.C. was attacked by three separate men and forced to,
under threat, . . . perform a sexual act on a fourth
person. The details provided by B.C. instructed [the
nurse] where to examine B.C., and what evidence of the
assault to look for, specifically to conduct swabs of
B.C.'s vaginal and rectal cavity.

The detail gave context to symptoms B.C. was
experiencing such as pain. [The nurse] explained that
[B.C.] appeared to be in a great deal of pain, was
wincing, having trouble sitting, and complained that her
mouth was sore.

The details relating to defendant's possession of
the gun were also relayed for the purpose of treatment.
During the assault B.C. was struck in the face with the
gun. She exhibited swelling and bruising on her left
eye requiring treatment.

....

A-2159-20
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 Lastly, there was nothing in [the nurse's]
testimony regarding the description of the three
assailants that [was] so objectionable it could [be] said
to have prejudiced defendant. The description of the
perpetrators as Spanish, tall, or having a goatee, is
distinguishable from an identification where one
clearly names the defendant as the actor, or places the
particular defendant at the scene of the crime.

Specifically addressing the prejudice prong, the judge concluded, "the evidence

presented at trial was so overwhelming, an objection [to the nurse's hearsay

testimony] or [a] curative instruction would have had little impact."

Regarding defendant's claim that defense counsel was ineffective for

failing to object to the order in which the witnesses testified, the judge

acknowledged that the nurse testified before B.C. but pointed out that "there

[was] nothing in [the] law that dictate[d] the order o[f] witnesses to be

presented." Rather, according to the judge, the decision was "at the discretion

of counsel and the [c]ourt," see N.J.R.E. 611, and was often dictated "by witness

availability and time constraint[s]." Nevertheless, the judge noted there was no

prejudice because "counsel had [a] full opportunity to cross-examine both [the

nurse] and B.C., and the trial records indicate[d] that defense counsel thoroughly

cross-examined both witnesses."

A-2159-20
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 The judge also painstakingly addressed each of defendant's pro se claims,

including defendant's claims that trial counsel was ineffective for failing to call

witnesses, in particular, his brother and an expert to testify about "the [letters]

found in the county jail" to prove that "defendant did not write the letter[s], and

that the letter[s were] not gang related." The judge rejected the claims as

"unsupported" "bald assertions." See State v. Cummings, 321 N.J. Super. 154,

170 (App. Div. 1999) ("[I]n order to establish a prima facie claim, a petitioner

must do more than make bald assertions that he was denied the effective

assistance of counsel.").

The judge explained "[d]efendant provide[d] no certification from his

brother stating that he would have testified . . . or the contents of his testimony.

Moreover, defendant fail[ed] to iterate one reason that the absence of his

brother's testimony prejudiced him at trial, and none [could] be logically

inferred." Likewise, defendant did not provide "a certification, or even a

statement from a handwriting expert, indicating that an analysis or comparison

of the handwriting was performed, and that . . . defendant [was] not the author

of the letters found." Similarly, defendant did not provide "a certification from

a gang expert reaching the conclusion that the language was not gang related."

See ibid. (explaining a petitioner must support his claim of "counsel's alleged

A-2159-20
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substandard performance" with "affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification").

Next, the judge addressed defendant's claim that trial counsel was

ineffective for failing to file certain motions. First, the judge dismissed

defendant's claim regarding trial counsel's failure to request a hearing to

determine the admissibility of N.J.R.E. 404(b) evidence because "defendant

fail[ed] to identify or state with any specificity what evidence" should have been

excluded or how such a hearing "would have changed the outcome of the trial."

See State v. Porter, 216 N.J. 343, 355 (2013) ("[A] defendant is not entitled to

an evidentiary hearing if the 'allegations are too vague, conclusory, or

speculative to warrant an evidentiary hearing.'" (quoting State v. Marshall, 148

N.J. 89, 158 (1997))).

Further, the PCR judge explained that when trial counsel moved for

severance of the counts pertaining to the two incidents – the incident involving

the murder and the incident involving the home invasion – in denying the

motion, the trial judge addressed N.J.R.E. 404(b) and effectively conducted an

analysis under State v. Cofield, 127 N.J. 328 (1992). On direct appeal,

defendant had challenged the trial judge's ruling on the severance motion, but

we had rejected defendant's challenge and affirmed the ruling. See Alicea, slip

A-2159-20
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op. at 9-14. Thus, the PCR judge concluded defendant's claim was barred under

Rule 3:22-5 "as the substance of the claim[] was expressly adjudicated" on "the

merits" both in the trial court and on appeal. See State v. Preciose, 129 N.J. 451,

476 (1992) ("[A] prior adjudication on the merits ordinarily constitutes a

procedural bar to the reassertion of the same ground as a basis for [PCR]." (citing

R. 3:22-5)).

Turning to defendant's claim that trial counsel was ineffective for failing

to file a motion for a Wade hearing and to suppress evidence, the judge noted,

"defendant simply assert[ed] that the motion . . . 'would have established that

the evidence was obtained illegally, and that the motion to suppress would have

shown that the photo lineup that was put to identify the defendant was not in

accordance with the procedures of the court.'" However, according to the judge,

defendant failed to "identify or even allude to what evidence should have been

suppressed, or the improper manner in which the evidence was procured."

Nonetheless, after conducting an in-depth analysis of the viability of either

motion, the judge found no evidence that "the identification was unduly

suggestive" and concluded defendant failed to demonstrate that such a motion

"would have been successful." The judge stressed that "failure to raise

unsuccessful legal arguments does not constitute [IAC]." See State v. Worlock,

A-2159-20
12
117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments

does not constitute ineffective assistance of counsel.").

Additionally, according to the judge, "[g]iven the totality of the

evidence . . . presented at trial, . . . defendant [wa]s unable to meet the prejudice

standard on this basis." The judge recounted:

G.T. and B.C. identified defendant in open court as the
perpetrator. The surveillance video show[ed]
defendant in clothing matching the description
provided by G.T., B.C. and . . . [C.B.]. All three
witnesses gave consistent descriptions of the
assailant[s] that match[ed] the clothing they were
wearing when they were apprehended. L.B.'s purse was
discovered on the porch of B.C. and G.T.'s home, and
the proceeds of the robbery [were] recovered off of co-
defendant Gonzalez' person.

Next, the judge dismissed defendant's claim that he was not provided

complete discovery as "vague." The judge explained defendant "fail[ed] to

identify what discovery was deficient, when he requested the discovery, or why

he could not raise th[e] issue in an earlier proceeding." Additionally, the judge

described "defendant's claims regarding counsel's failure to cross-examine B.C.

on her alleged criminal history" as "unsubstantiated," and characterized

defendant's "claim that B.C. may have received favorable treatment . . . on a

pending matter in exchange for her testimony" as "unsupported" and

"speculative." Contrary to defendant's claim, the judge determined trial counsel

A-2159-20
13
effectively cross-examined B.C. "concerning her prior heroin purchases from

co-defendant Gonzalez," as well as the discrepancy in her earlier statement

given "in October 2011 when she confused defendant with co-defendant

Gonzalez."

The judge also rejected defendant's contention that trial counsel was

ineffective for "failing to point out that [defendant's] DNA was not found on the

victim or at the scene of the crime." As the judge stressed, "the record[]

unequivocally demonstrate[d] that the jury was [made] aware that defendant's

DNA was not found on the samples taken from B.C.," and trial counsel

emphasized during cross-examination of the State's forensic witness and

summations that "the lack of DNA demonstrated that defendant did not commit

the offense[s] for which he was charged."

Finally, the judge addressed defendant's contention that trial counsel was

ineffective for not objecting to the testimony of the county jail officer, Officer

Mangaro, who, while testifying about the letters found in the county jail,

"advised the jury that defendant was incarcerated at the time of his trial." The

judge explained:

Officer Mangaro testified that he found
defendant's handwritten [letter] in the jail . . .
containing admissions that defendant committed the
murder of L.B. and assault of B.C. He further testified

A-2159-20
14
 that the letter, signed by Little Steven, or L.S., was used
to identify defendant because he was the only Steven
housed in [the] unit where the letter was sent.

His testimony concerning defendant's
incarceration was limited to discovery of the letter and
not offered to prove defendant's guilt. Moreover, his
testimony in this regard was necessary to give context
to how the letter was discovered, and to lay foundation
for the admission of the letter into evidence.

Defendant has not raised any grounds upon which
counsel could have objected to the testimony, or that
the trial judge would have sustained the objection . . . .
Counsel's failure to object is also inconsequential in
light of the overwhelming evidence of guilt that was
introduced at . . . trial.

II.

In this ensuing appeal, defendant raises the following points for our

consideration:

POINT ONE

A. THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM TRIAL COUNSEL
EXPLAINING WHY HE FAILED TO OBJECT TO
THE HEARSAY TESTIMONY OF [THE SANE
NURSE] AS BEYOND THE SCOPE OF MEDICAL
TREATMENT.

B. THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM TRIAL COUNSEL

A-2159-20
15
 EXPLAINING WHY HE FAILED TO OBJECT TO
THE TESTIMONY OF [THE SANE NURSE], WHICH
BOLSTERED THE CREDIBILITY OF THE VICTIM.

POINT TWO

THIS MATTER MUST BE REMANDED FOR THE
APPOINTMENT OF NEW PCR COUNSEL AS
SUPPORT WAS NOT PROVIDED FOR ANY OF
THE PRO SE ARGUMENTS RAISED BY
[DEFENDANT] IN HIS PCR PETITION, LEAVING
THE PCR COURT UNABLE TO PROPERLY
ADDRESS ANY OF THOSE ISSUES. (NOT RAISED
BELOW).

"We review the legal conclusions of a PCR judge de novo," State v.

Reevey, 417 N.J. Super. 134, 146 (App. Div. 2010), but "we review under the

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

an evidentiary hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.

2013). Rule 3:22-10(b) provides that a defendant is entitled to an evidentiary

hearing only if: (1) the defendant establishes a prima facie PCR claim; (2) "there

are material issues of disputed fact that cannot be resolved by reference to the

existing record"; and (3) "an evidentiary hearing is necessary to resolve the

claims for relief." Indeed, "[i]f the court perceives that holding an evidentiary

hearing will not aid the court's analysis of whether the defendant is entitled to

post-conviction relief, . . . then an evidentiary hearing need not be granted."

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Brewster, 429 N.J. Super. at 401 (second alteration in original) (quoting

Marshall, 148 N.J. at 158).

"To establish a prima facie case, defendant must demonstrate 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." R. 3:22-

10(b). Moreover, a defendant must make this showing "by a preponderance of

the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002). Critically,

to establish a prima facie IAC claim, a defendant must demonstrate that: (1)

counsel's performance was deficient; and (2) the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 700; Fritz, 105 N.J. at 58.

When reviewing IAC claims, "[j]udicial scrutiny of counsel's performance

must be highly deferential," and courts "must indulge a strong presumption" that

counsel's performance was reasonable. Strickland, 466 U.S. at 689. Thus,

establishing deficient performance "requires showing that counsel made errors

so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment," and "counsel's representation fell below

an objective standard of reasonableness." Id. at 687-88.

The prejudice prong "requires showing that counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

A-2159-20
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Id. at 687. Moreover, there must be a "reasonable probability that, but for

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

different." Id. at 694.

A defendant must establish both prongs of the Strickland/Fritz test to

obtain a reversal of the challenged conviction. Strickland, 466 U.S. at 689, 697;

Fritz, 105 N.J. at 58. Although a failure to satisfy either prong results in the

denial of a PCR petition based on IAC, State v. Parker, 212 N.J. 269, 280 (2012),

"[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which . . . will often be so, that course should be followed,"

Strickland, 466 U.S. at 697. See also State v. Gaitan, 209 N.J. 339, 350 (2012)

("Although a demonstration of prejudice constitutes the second part of the

Strickland analysis, courts are permitted leeway to choose to examine first

whether a defendant has been prejudiced, and if not, to dismiss the claim without

determining whether counsel's performance was constitutionally deficient."

(citations omitted) (citing Strickland, 466 U.S. at 697)).

Here, we are satisfied from our review of the record and governing legal

principles that defendant failed to establish a prima facie IAC claim to warrant

PCR or an evidentiary hearing and affirm substantially for the reasons stated in

the PCR judge's comprehensive oral opinion. Critically, as the judge repeatedly

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pointed out, given the overwhelming evidence of guilt, defendant's failure to

demonstrate that he was prejudiced by any purported deficient performance by

trial counsel was fatal to his petition.

Defendant also argues that he must be assigned a new attorney "to start

the [PCR] process anew because his pro se petition arguments [were] 'wholly

unexplored'" by virtue of PCR counsel's failure "to address any of [defendant's]

pro se arguments with any supporting information in his brief." In support,

defendant relies on the following colloquy between the judge and PCR counsel

during oral argument:

[COURT]: All right Counsel, I have read the
submissions, as well as all of the supporting documents
that were filed in this matter. Are there any particular
arguments that anyone wishes to address on the record?

[PCR COUNSEL]: Your Honor, not from me unless
Your Honor has any questions. I believe that issue is
fully addressed in the amended petition that I filed, and
I would seek to incorporate also any pro se arguments
the [defendant] submits as well.

....

[COURT]: . . . There's a few questions that I have. I'll
start with [defense counsel].

One of the issues that's raised is regarding the
testimony of Officer Mangaro at trial that related to the
letter that was found in the jail. And there is an
argument raised that there should have been an

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19
 objection at trial based on the testimony that he
provided that the letter was found in the jail, that
indicated that defendant was incarcerated during the
time of the trial. . . . [W]hat precluded raising this issue
on appeal?

[PCR COUNSEL]: Your Honor, I did not raise that
issue in the amended petition that I filed. It's a pro se
issue that I did not incorporate into the amended
petition. I really don't think it's appropriate for me to
analyze it, because it's a pro se issue, and I don't wish
to undermine [defendant's] own arguments.

It is addressed in the prejudice prong of the
amended petition that I submitted on behalf of
[defendant] . . . in that there was no real corroboration
where this letter came from, and in fact how the route
to the co-defendant . . . Gonzalez would have been
achieved by [defendant], assuming that the letter was,
in fact, [defendant's].

Your Honor, with regard to the issue of
confinement prior to trial, I think it would . . . have been
impossible to sanitize the communication without
mentioning, in fact, that both of the defendants were in
prison.

We recognize that Rule 3:22-6

state[s] that every defendant is entitled to be
represented by counsel on a first PCR petition; that if a
defendant is indigent, counsel will be assigned; that
assigned counsel may not withdraw based on the
ground of "lack of merit" of the petition; and that
"counsel should advance any grounds insisted on by
defendant notwithstanding that counsel deems them
without merit."

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 [State v. Rue, 175 N.J. 1, 13 (2002) (quoting R. 3:22-
6).]

Although "PCR counsel must communicate with the client, investigate the

claims urged by the client, . . . determine whether there are additional claims

that should be brought forward" and "[t]hereafter, . . . advance all of the

legitimate arguments that the record will support," PCR counsel is not required

to bolster claims raised by a defendant that are without foundation. Webster,

187 N.J. at 257. Instead,

[i]f after investigation counsel can formulate no fair
legal argument in support of a particular claim raised
by defendant, no argument need be made on that point.
Stated differently, the brief must advance the
arguments that can be made in support of the petition
and include defendant's remaining claims, either by
listing them or incorporating them by reference so that
the judge may consider them. That procedure, which
will serve to preserve defendant's contentions for
federal exhaustion purposes, is all that is required.

[Ibid.]

When PCR counsel fails to meet these standards, the appropriate remedy

is a remand for a new PCR hearing. State v. Hicks, 411 N.J. Super. 370, 376

(App. Div. 2010) (citing Rue, 175 N.J. at 4). "This relief is not predicated upon

a finding of [IAC] under the relevant constitutional standard. Rule 3:22-6(d)

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21
imposes an independent standard of professional conduct upon an attorney

representing a defendant in a PCR proceeding." Ibid. (citations omitted).

In Rue, the defendant's PCR counsel submitted a brief advancing "no

argument at all on behalf of Rue." 175 N.J. at 8. Instead, the brief only

addressed the inadequacies of Rue's pro se PCR claims and sought "clarification

of the law in the situation in which PCR counsel believes the client's claims are

legally meritless, but the client refuses to withdraw the PCR." Ibid. At oral

argument, PCR counsel again pointed out the deficiencies in Rue's PCR claims.

Id. at 10-11. Our Supreme Court reversed the trial court's denial of Rue's PCR

petition and remanded for a new PCR hearing with different counsel based on

PCR counsel's failure to fulfill his obligations under Rule 3:22-6(d). Id. at 19.

The Court reasoned, "[b]ecause Rue's counsel abandoned any notion of partisan

representation by countering every one of his claims and characterizing the

entire petition as meritless, Rue did not receive the representation guaranteed by

our PCR Rule," and "Rue's PCR contentions [had] remain[ed] . . . wholly

unexplored." Ibid.

Similarly,

[i]n Webster, the defendant's PCR counsel submitted a
brief on his behalf which examined only one of the nine
claims presented by Webster in his PCR petition. On
appeal, Webster claimed that his counsel's failure to

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 brief and present all nine contentions violated Rule
3:22-6(d) and warranted a reversal. The Court agreed.
By not presenting all of Webster's PCR petition claims,
his PCR counsel failed to meet the standard outlined in
the Rule, which required the matter to be remanded for
a new PCR hearing.

[Hicks, 411 N.J. Super. at 377 (citations omitted)
(citing Webster, 187 N.J. at 256, 258).]

Guided by these principles, we are satisfied PCR counsel's performance

complied with the dictates of Rule 3:22-6(d), as construed by our Supreme Court

in Rue and Webster. Accordingly, we reject defendant's arguments to the

contrary.

Affirmed.

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