STATE OF NEW JERSEY v. JARON D. REEVEY

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JARON D. REEVEY, a/k/a JONATHAN LEE,

and JARONE REEVEY,

Defendant-Appellant.

_________________________________________

November 4, 2016

Submitted September 27, 2016 Decided

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-11-2080.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury in 2005, defendant Jaron Reevey was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count six). At sentencing, after merging count two with count one and count five with count four, the judge imposed a life sentence with a thirty-five-year period of parole ineligibility on count one, a consecutive eighteen-year sentence with an 85% period of parole ineligibility on count three, and concurrent sentences on counts four and six. The judgment of conviction (JOC) was filed on August 2, 2005.

On appeal, the State conceded that trial errors required reversal of the convictions for felony murder, robbery and conspiracy. State v. Jaron Reevey, No. A-1414-05 (App. Div. Apr. 10, 2008) (slip op. at 3-4). As a result, we remanded for a new trial on those charges, and because it was error to merge counts four and five, we remanded for re-sentencing on those counts. Id. at 4. In all other respects we affirmed defendant's conviction and sentence. Ibid. The Supreme Court denied defendant's petition for certification. 196 N.J. 85 (2008).

Defendant next appeared before the trial judge on June 12, 2009. The delay is unexplained, except by the judge's own statement at the time that "the matter ha[d] been languishing and . . . ha[d]n't been resolved." The State indicated it would not retry defendant on the felony murder, robbery or conspiracy charges and dismissed those counts. The judge then resentenced defendant by merging count four into count one and imposing the same sentence on count one and a concurrent five-year term on count five. The sentence was to be served consecutive to a federal sentence defendant was serving for unrelated crimes. A new JOC was filed on June 12, 2009.

Defendant again appealed, and the matter was heard on our Excessive Sentence Oral Argument calendar. Our December 15, 2011 order affirmed the trial court's sentence and judgment.

On May 24, 2012, defendant filed a pro se PCR petition alleging the ineffective assistance of trial and appellate counsel (IAC). Defendant specifically claimed that both failed to advise him of the five-year time limit for seeking PCR relief, see Rule 3:22-12(a)(1), and trial counsel failed to introduce exculpatory documents and subpoena alibi and other defense witnesses.

PCR counsel was appointed, and defendant filed an amended petition in which he certified that he was not advised of his right to seek PCR relief until January 2012, and the petition was not time-barred because his "case was not final until 2009 . . . ." Alternatively, defendant argued that any delay was due to excusable neglect, since he filed a petition for federal habeas corpus relief in 2009, but realized he had "filed the matter in the wrong court." Attached to defendant's supplemental petition were various affidavits, subpoenas, correspondence between defendant and trial counsel, and defendant and the Office of the Public Defender.

I.

We digress briefly to summarize some of the trial evidence, which is more fully explained in our prior opinion. The victim, a Rite Aid pharmacist, was found shot once in the face late at night in the store's parking lot; he subsequently died. Reevey, supra, at 5. No one saw the shooting, and no forensic evidence was found at the scene. Ibid. Four inmates, Kenneth Lyons, Anthony Vitelli, Anthony Simmons, and Charles Quinn appeared as prosecution witnesses, each testifying about incriminating statements defendant had made. Id. at 9-10.

The key State's witness was S.W., defendant's juvenile girlfriend and co-defendant. Id. at 6-9. S.W. claimed to have been with defendant at the time of the aborted carjacking of the victim's red Mercedes. Id. at 7-8. She testified pursuant to a plea agreement whereby she pled guilty to robbery and was exposed to a six-year term of imprisonment in exchange for her testimony. Id. at 7.

Defendant did not testify, but one of the defense witnesses, Darryl Chandler, was called in an attempt to impeach Simmons' testimony regarding defendant's jailhouse confession. Id. at 11. Another defense witness, a fellow employee of the victim, advanced the general defense of third-party guilt, which was also furthered through the questioning of the lead investigative detective, Charles Smentkowski. Id. at 5-7.

Among the exhibits to defendant's PCR petition were a June 2004 affidavit from Steven Teasley, a September 2004 affidavit from Kalvin Joseph, a November 2004 affidavit from S.W., a March 2005 affidavit from Lyons (the pre-trial affidavits), and a March 2005 letter from S.W. to defendant. In her affidavit, S.W. described the events leading up to her federal carjacking conviction and claimed to have been coerced into pleading guilty and testifying against defendant in that case. In her letter, S.W. described being pressured by the prosecutor and his investigator as they prepared her for trial. Lyons claimed that he lied to investigating detectives and was a "delusional drug" addict at the time he spoke to them. Steven Teasley described his jailhouse encounter with Vitelli in which Vitelli told him that he had concocted a "fictitious story" about the murder in order to "obtain[] his freedom."1

Trial counsel first served these on the prosecutor on the morning trial began, April 5, 2005. The prosecutor objected, citing a prior reciprocal discovery order, or he alternatively requested an adjournment. The judge sustained the prosecutor's objection, and, refusing to consider defense counsel's arguments, excluded the affidavits. However, the prosecutor did not object to S.W.'s letter.2 S.W. and Lyons were not confronted with their affidavits, and Teasley never appeared as a witness at trial.

Before trial, defendant served a notice of alibi naming two witnesses and asserting he was with them at the time of the killing. At the start of trial, the prosecutor requested an opportunity to speak to the witnesses prior to the defense case. It is unclear from defense counsel's comments whether he had spoken to the witnesses at that point. Attached to defendant's PCR petition was a subpoena for one of the alibi witnesses, as well as a verification of services. The petition did not include certifications from the alibi witnesses and neither was called as a witness at trial.

The petition also included subpoenas issued to four other witnesses and proof that they were served in some manner. None of the four subpoenaed witnesses were produced at trial, and the record does not contain any certifications from these witnesses. However, Smentkowski testified at trial that one of the witnesses, a Rite Aid employee, had called police and provided a statement. The witness claimed that a man, who identified himself by name as a detective, took him for a ride and questioned him about the case. Smentkowski acknowledged during trial that no such detective worked in the police department. During cross-examination of S.W., trial counsel hinted that another subpoenaed witness was S.W.'s cellmate during her time in federal custody, and that S.W. may have told the witness something inconsistent with S.W.'s trial testimony.

Defendant had a contentious relationship with his original attorney, and trial counsel was appointed to represent defendant approximately five months before trial began. The transcript reveals that defendant continued to file motions on his own behalf, and the trial judge on occasion warned defendant that he faced contempt if he continued participating directly in the proceedings rather than through counsel.

After the verdict was returned but before sentencing, defendant filed a pro se motion for a new trial.3 He also sent a letter to trial counsel, with a copy to the Regional Public Defender's Office, in which he asserted IAC claims, including counsel's failure to turn over discovery to the State in a timely fashion, and to subpoena and call the alibi and other witnesses. In May 2005, the Public Defender responded, advising that trial counsel would appear at sentencing and argue the new trial motion, and defendant could raise the IAC arguments in a PCR petition which could not be filed "until after the appeal process." With defendant's consent, trial counsel did argue the new trial motion, which the judge denied prior to imposing sentence.

The PCR petition included additional affidavits procured shortly before and after defendant's sentencing (the post-trial affidavits). In an affidavit dated July 19, 2005, James Thomas claimed that while working in the same area of the jail where S.W. was incarcerated, she told him that she testified falsely at defendant's New Jersey trial, just as she had at his federal trial, because she was intimidated by the prosecutor. In an affidavit also dated July 19, Ronald Strong claimed that while incarcerated, he met Lyons, who said "he lied on [sic] someone in 2001 and . . . might have to testify," and Strong inferred Lyons meant defendant. Strong further claimed that Quinn told him he testified as he did because he wanted to get home sooner to his daughter.4

By affidavit dated July 28, 2005, Jonathan Givens claimed that he met Lyons while incarcerated, and Lyons said he gave false statements about defendant to get a more lenient sentence. In an affidavit dated September 14, 2005, Calvin Weaver claimed that while they were incarcerated together, Lyons told him he intended to lie about defendant to get a lighter sentence.

Argument took place on defendant's PCR petition on May 2, 2014, before a judge who was not the trial judge.5 Although the judge concluded that the petition was time-barred and defendant failed to demonstrate any excusable neglect, he nevertheless comprehensively addressed the issues raised. Regarding defendant's claim that trial counsel failed to adequately present exculpatory witnesses and testimony as set forth in the various pre-trial affidavits, the judge concluded "the majority of these issues could and should have been raised on [direct] appeal." The judge noted defendant's failure to obtain certifications from trial counsel or appellate counsel.

The judge also found, based upon his "fair interpretation and review of the transcripts," that as to the pre-trial affidavits, "defendant did not provide his attorney with discoverable documents until the day trial was set to begin." The judge also determined that none of the affidavits provided information that was "'clearly exculpatory' . . . and material to [defendant's] innocence." Rather, they challenged the credibility of the State's witnesses, which trial counsel had effectively done without the affidavits.

The judge also concluded that defendant was not entitled to relief because trial counsel failed to independently file a new trial motion based upon the post-trial affidavits, reasoning such a motion would have been unsuccessful. The judge concluded that neither trial nor appellate counsel provided ineffective assistance, and defendant failed to establish a prima facie case justifying an evidentiary hearing. The judge entered the May 2, 2014 order denying the petition, and this appeal followed.

Before us, in Point I, defendant argues he was entitled to an evidentiary hearing on his IAC claim because trial counsel failed to investigate and call alibi witnesses at trial, failed to timely serve discovery on the State, and failed to file a motion for a new trial. He also contends appellate counsel and PCR counsel rendered ineffective assistance. In Point II, defendant argues the trial court abused its discretion by refusing to permit the introduction of various affidavits attacking the State's witnesses' credibility. In Points III and IV, defendant argues that his petition was not procedurally-barred by Rule 3:22-4(a), or time-barred by Rule 3:22-12(a).

In two pro se supplemental filings, defendant argues that trial counsel rendered ineffective assistance by failing to request a limiting instruction regarding S.W.'s guilty plea, and he was entitled to an evidentiary hearing on his IAC claims against trial and PCR counsel. We have considered these arguments in light of the record and applicable legal standards. We reverse and remand for an evidentiary hearing.

II.

To establish an IAC claim, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To satisfy prong one, [a defendant] ha[s] to overcome a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his responsibilities. [I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is virtually unchallengeable. Mere dissatisfaction with a counsel's exercise of judgment is insufficient to warrant overturning a conviction.

[State v. Nash, 212 N.J. 518, 542 (2013) (third alteration in original) (citations omitted).]

Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52). "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).

We apply the same standard to defendant's claims of ineffective assistance by appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, 194 N.J. 444 (2008). "To remedy the prejudice to [a] defendant resulting from the ineffective assistance he received in his direct appeal, we . . . consider[] the issues presented . . . from a denial of post[-]conviction relief as if they were being presented in a direct appeal." State v. Guzman, 313 N.J. Super. 363, 375 (App. Div. 1998) (citing Mayo v. Henderson, 13 F.3d 528, 537 (2d Cir. 1994)).

"PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support." State v. Webster, 187 N.J. 254, 257 (2006). The appropriate remedy for PCR counsel's failure to do so is a remand for a new PCR hearing. State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).

IAC claims are particularly appropriate for PCR review because they often rely upon facts outside the trial record and therefore cannot be raised in a prior proceeding. State v. Echols, 199 N.J. 344, 357 (2009). Our Rules anticipate the need to hold an evidentiary hearing on IAC claims "upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). A "prima facie case" requires a defendant "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," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013). "[W]e 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) (citing State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

A.

"Because post-conviction relief is not a substitute for direct appeal and because of the public policy 'to promote finality in judicial proceedings,' our rules provide various procedural bars." Echols, supra, 199 N.J. at 357 (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). Rule 3:22-4(a) provides in pertinent part

Any ground for relief not raised . . . in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

[Ibid.]6

"Our courts will find fundamental injustice when the judicial system has denied a 'defendant with fair proceedings leading to a just outcome' or when 'inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice.'" Nash, supra, 212 N.J. at 546 (quoting State v. Mitchell, 126 N.J. 565, 587 (1992)).

In the past, IAC claims, grounded in the Sixth Amendment, were deemed to fall within the third exception, see, e.g., McQuaid, supra, 147 N.J. at 484, because subsection (c) of the pre-2010 Rule excepted petitions from its procedural bar if "denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." There was no requirement that denial of relief be contrary to a "new" constitutional rule. R. 3:22-4(a)(3). Additionally, prior to the 2010 amendment, the exception based upon a resulting "fundamental injustice," now subsection (b), did not explicitly include IAC claims, as the current version of the Rule now does.

We need not dwell on the significance, if any, of these changes to the Rule. To the extent the petition made an IAC claim, we deem it was cognizable under subsection (b)'s exception to Rule 3:22-4's procedural bar. See State v. Allen, 398 N.J. Super. 247, 257 n.8 (App. Div. 2008) (recognizing the difference in some cases between issues "framed on direct appeal and as presented now in the context of [IAC]"). However, we agree with the PCR judge that the argument raised in Point II a direct challenge to the trial court's discovery ruling could have been brought on direct appeal, was not and is barred by Rule 3:22-4(a).

B.

Whether the petition was time-barred, however, presents a more complicated question. When defendant was convicted in 2005, Rule 3:22-12(a) provided that, with the exception of "[a] petition to correct an illegal sentence," "[n]o other petition shall be filed . . . more than [five] years after rendition of the judgment or sentence sought to be attacked" absent facts establishing the delay was caused by a defendant's excusable neglect. (Emphasis added). Rule 1:1-2 permitted relaxation of the time bar in limited, exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997).

At the time defendant actually filed his PCR petition in 2012, Rule 3:22-12(a)(1) required a defendant to file the petition within five years "after the date of entry . . . of the judgment of conviction that is being challenged," unless there was excusable neglect and "there [was] a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Enlargement of the time frame through relaxation is prohibited, except as otherwise permitted by the Rule itself. R. 3:22-12(c); R. 1:3-4(c). In other words, to be relieved of the strict application of the time bar, a defendant must demonstrate both excusable neglect and that enforcement of the time bar would result in a fundamental injustice.

Throughout, Rule 3:22-3 has provided that the PCR petition may not be filed while appellate review is pending. Our cases have uniformly held that appellate review does not toll the time bar, State v. Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986), nor does the filing of a federal habeas corpus petition. State v. Milne, 178 N.J. 486, 494 (2004).

We have consistently held that the five-year time bar is not extended even when pending appellate proceedings result in a remand. In State v. Dugan, 289 N.J. Super. 15, 17-18 (App. Div.), certif. denied, 145 N.J. 373 (1996), we affirmed the defendant's convictions on direct appeal but vacated the sentences imposed and remanded for re-sentencing. We affirmed the subsequent JOCs entered after re-sentencing. Id. at 18. The defendant filed a PCR petition six-and one-half years after the initial JOCs, but less than two years after our judgment. Ibid.

The defendant argued that the five-year period for filing a PCR petition did not commence until he was re-sentenced. Id. at 19. Interpreting Rule 3:22-12 as it then existed, Judge Skillman wrote that a defendant must file his petition "within five years of whatever judicial action he is attacking." Id. at 20. Because the defendant was not attacking his sentence, but rather his convictions, the petition was time-barred. Ibid. In words particularly applicable given changes in the Rule since, Judge Skillman wrote

[I]f Rule 3:22-12 were construed to re-trigger the five-year period for filing a petition for post-conviction relief any time the court entered an amended judgment of conviction memorializing a resentencing, a defendant would be able to pursue a petition for post-conviction relief many years after his trial, when witnesses and counsel may have died or disappeared and memories of both the crime and the trial proceedings inevitably will have dimmed.

[Id. at 20-21.]

In addition, we rejected defendant's argument that any delay was excusable because he relied upon a misunderstanding that Rule 3:22-12 extended the time for filing his petition to five years from the entry of the amended JOCs. Id. at 22.

In State v. Cummings, 321 N.J. Super. 154, 160 (App. Div.), certif. denied, 162 N.J. 199 (1999), the defendant was convicted in 1986 following trial. On appeal, we conditionally affirmed his conviction but remanded for an evidentiary hearing based upon challenged statements admitted at trial. Id. at 160-61. The remand did not take place until 1990, and the judge re-affirmed the rulings he had previously made. Id. at 161. We again affirmed on appeal in 1992, and the defendant filed a PCR petition in 1996. Ibid. The PCR judge denied the petition as untimely. Id. at 162.

Among other things, defendant argued before us that his delay was excusable, particularly given the pendency of the appeals and remand hearing, and he did not realize until 1995 that he could file a petition. Id. at 162-63. Citing Dugan, we noted that "the time limitation for filing a petition for post-conviction relief is not tolled during the pendency of appellate proceedings even though R. 3:22-3 bars the filing of a petition while appellate review is available." Id. at 166-67. Thus, the defendant had failed to establish excusable neglect. Id. at 167. Furthermore, although our remand was to resolve "a critical evidential issue rather than merely resentencing," we concluded that the defendant failed to establish exceptional circumstances warranting the then-available relaxation of Rule 3:22-12. Id. at 169.

Finally, in another decision that bears striking similarity to this case, we affirmed the defendant's conviction for felony murder but reversed and remanded his conviction for purposeful or knowing murder based on trial error. State v. Cann, 342 N.J. Super. 93, 98 (App. Div.), certif. denied, 170 N.J. 208 (2001). On remand, the State decided not to retry the defendant, he was resentenced, and we again affirmed on appeal. Ibid. Defendant filed a PCR petition which the judge denied. Ibid. We affirmed, concluding that even though the petition was filed only sixty days late, it was time-barred and lacked potential merit. Id. at 102.

In each of these cases, however, we proceeded to assess the merits of the defendants' petitions and ultimately found defendant was not entitled to relief. See Cann, supra, 342 N.J. Super. at 102; Cummings, supra, 321 N.J. Super. at 170-71; Dugan, supra, 289 N.J. Super. at 21-22. Additionally, all of these cases pre-date changes to the PCR Rules adopted by the Court in 2009.

Effective September 1, 2009, shortly after defendant was re-sentenced in this case, the Court adopted Rule 3:22-6A and again revised Rule 3:22-12(a). Although a PCR petition still needs to be brought within five years of the judgment under attack, and although Rule 3:22-3 still ostensibly prohibits the filing of a petition while appellate review is pending, Rule 3:22-6A(2) and Rule 3:22-12(a)(3) now permit the court to dismiss without prejudice any PCR petition filed while an appeal is pending, and allow it to be refiled within ninety days of the appellate judgment or within five years of the judgment or sentence, whichever is later. Additionally, Rule 3:21-4(h) was adopted, requiring the trial judge to advise defendants that a PCR petition must be filed within five years of the date of conviction. See also Administrative Directive #03-10 (issued March 9, 2010) available at http://www.judiciary.state.nj.us/directive/2010/Dir_03_10.pdf (promulgating specific forms to be executed by defendants at sentencing advising of the time limit contained in Rule 3:22-12(a)).

Defendant contends his petition was not time-barred because trial and appellate counsel never advised him that it needed to be filed within five years of his 2005 conviction.7 Actually, defendant was provided with advice that was, at best, ambiguous. When he first asserted IAC claims, immediately after trial and before sentencing, defendant was affirmatively told that he could not seek PCR relief "until after the appeal process." Although that advice accurately reflected Rule 3:22-3, it failed to convey the critical, additional advice that defendant needed to file a PCR petition within five years of his August 2005 JOC.

We have said that, "[i]f excusable neglect for late filing of a petition is equated with incorrect or incomplete advice, long-convicted defendants might routinely claim they did not learn about the deficiencies in counsel's advice on a variety of topics until after the five-year limitation period had run." Brewster, supra, 429 N.J. Super. at 400. However, in this case, defendant ostensibly followed the advice he received when he first raised his IAC claims, i.e., that he could not file a PCR petition until appellate proceedings were completed. He filed this petition only six months after we decided his appeal from his re-sentencing. Under the circumstances, we conclude his delay was excusable.

However, defendant must also demonstrate it is reasonably probable "that if [his] factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1). With respect to some of defendant's IAC claims, we conclude he established that strict application of the time bar is fundamentally unjust.

As to the pre-trial affidavits, the PCR judge concluded, based upon his "fair interpretation" of the trial transcripts, that defendant did not provide them to defense counsel until the day of trial. Certainly, trial counsel could not have performed deficiently if that was true. However, the factual finding made by the PCR judge is not supported by the actual colloquy at trial. Moreover, in his post-verdict letter to trial counsel and the Office of the Public Defender, defendant specifically claimed that he gave the material to counsel many months before.

Additionally, with regard to both the pre- and post-trial affidavits, the PCR judge concluded that defendant failed to meet the second Strickland/Fritz prong, because they contained only impeachment material, not exculpatory evidence, and trial counsel had effectively cross-examined the witnesses without using them. We agree that S.W.'s affidavit provided no impeachment material, and, although he chose not to do so, counsel was able to use S.W.'s letter at trial because the prosecutor did not object. The letter expressed S.W.'s concern about her upcoming testimony and the prosecutor's jailhouse visit to confirm her continued cooperation. However, S.W. freely admitted during trial that she had undergone trial preparation.

Lyons' affidavit supplied nothing new, since he testified to having used embalming fluid for twelve hours before he provided the statement to police that implicated defendant, and he frequently stated during his testimony that he did not remember most of the details of an alleged conversation with defendant.

Regarding the affidavit from Teasley, it is hearsay and would not have been admissible at trial in any event. N.J.R.E. 803. However, there is no explanation in the record why Teasley was not produced as a witness.8 At trial, Vitelli testified that defendant, his childhood friend, admitted killing the victim while trying to steal his car. Teasley claimed that Vitelli said he was going to concoct a fictitious story about the Rite Aid murder in order to gain his freedom. Had Teasley testified in accordance with his affidavit, the impeachment value of his testimony is obvious.

Contrary to the PCR judge's conclusions, and regardless of whether the decision not to call Teasley was strategic or otherwise, the resolution of defendant's IAC claim on this point required an evidentiary hearing. See, e.g., State v. Jones, 219 N.J. 298, 313-14 (2014) (reversing for an evidentiary hearing as to the failure to call "apparent alibi and corroborative witness[es]" even in the absence of trial counsel's certification); State v. Russo, 333 N.J. Super. 119, 141 (App. Div. 2000) (requiring an evidentiary hearing based upon certifications creating doubt as to credibility of the State's witnesses).

We also disagree with the PCR judge's conclusion that the post-trial affidavits were insufficient to warrant a hearing regarding a new trial. The standards governing a motion for a new trial based upon newly-discovered evidence are well-known.

Evidence is newly discovered and sufficient to warrant the grant of a new trial when it is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted."

[Nash, supra, 212 N.J. at 549 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

"Material evidence is any evidence that would 'have some bearing on the claims being advanced.'" State v. Ways, 180 N.J. 171, 188 (2004) (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). In considering the first and third prongs, "[t]he power of the newly discovered evidence to alter the verdict is the central issue, not the label to be placed on that evidence." Id. at 191-92 (citing Henries, supra, 306 N.J. Super. at 529-30). Moreover, as to prong two, "evidence clearly capable of altering the outcome of a verdict that could have been discovered by reasonable diligence at the time of trial would almost certainly point to ineffective assistance of counsel . . . ." Id. at 192.

Here, the four post-trial affidavits, if true, impeached the testimony of key State's witnesses. Defendant asserts that trial counsel provided ineffective assistance by not filing a new trial motion, however, he fails to demonstrate that trial counsel was even aware that some of the affidavits which were dated after defendant's sentencing even existed, or that appellate counsel was provided with them. Moreover, we are unaware of any published opinion that clearly holds trial counsel is personally responsible to file such a motion, or that appellate counsel must request a remand to the trial court in order to make such a motion.

In any event, the issue framed before the PCR judge was whether this evidence, discovered after trial, was sufficient to warrant an evidentiary hearing. For reasons already expressed, we conclude it was.

Defendant asserts that trial counsel was ineffective because he failed to properly investigate and call the alibi witnesses or the other subpoenaed defense witnesses. However, there is nothing in the record demonstrating the alibi witnesses would have actually supported the defense, because there is not a certification from either nor any investigative report indicating what their testimony might have been.

In his brief, without reference to the record, defendant states what would have been the anticipated testimony from two of the other four subpoenaed witnesses. However, none of the four witnesses supplied certifications in support of the petition. As noted above, the likely testimony from one of them was essentially conveyed to the jury through Smentkowski's cross-examination. Trial counsel's decision not to call that witness is clearly understood as a strategic decision. It appears a second subpoenaed witness actually testified as a State's witness at trial under her married name.

If defendant's IAC claim was limited to assertions regarding these witnesses, we would conclude he failed to demonstrate a prima facie case warranting an evidentiary hearing. However, because we are reversing and remanding for an evidentiary hearing on his other claims, defendant is free to present any evidence to support his IAC claim in this regard.

We hasten to add that we reach no conclusion about the merits of defendant's petition. Whether any of these affiants testify in a manner consistent with their statements is an open question, and certainly the State will have the opportunity to subject any witness actually produced to the crucible of cross-examination. The PCR judge will be in the best position to judge the credibility of any witness. Additionally, the State will be able to introduce evidence supporting its position at the hearing.

Finally, defendant's claims regarding the ineffective assistance of appellate and PCR counsel, and other claims raised in defendant's pro se submission, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Reversed and remanded. We do not retain jurisdiction.

1 The affidavit from Joseph provided no relevant evidence and described the "mass confusion" caused by neighborhood "gossip" about defendant's involvement in the murder.

2 Contrary to the State's assertion in its brief, S.W.'s letter in the appellate record is different from that which was moved into evidence at trial and which defense counsel used during cross-examination.

3 The motion is not in the record.

4 These two affidavits, although dated prior to sentencing, were apparently not furnished in support of the new trial motion. At the PCR hearing, the prosecutor contended all the post-trial affidavits were furnished as part of the motion for a new trial, but, given their dates, some of them clearly did not exist at the time the new trial motion was heard and denied.

5 Defendant remained in federal custody and appeared telephonically.

6 The Rule was amended in 2010. As a result, among other modifications, prior subsections (a), (b) and (c) were re-designated as subsections (a)(1), (a)(2) and (a)(3).

7 In his brief, defendant asserts appellate counsel "failed to abide by [his] request to file a PCR petition." There is no proof in the record to support this assertion.

8 Perhaps the prosecutor would have objected on the grounds that the witness was not named in an untimely fashion, but the issue never surfaced because Teasley was not produced.