STATE OF NEW JERSEY v. FELIX A. MERCADO

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                        NOT FOR PUBLICATION WITHOUT THE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-0219-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FELIX A. MERCADO,

     Defendant-Appellant.
________________________________

              Submitted December 19, 2017 – Decided April 19, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              09-06-0956.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Andrew P. Slowinski, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Nancy A. Hulett,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        A jury convicted defendant Felix A. Mercado on three counts

of first-degree aggravated sexual assault; three counts of second-
degree sexual assault; one count of third-degree endangering the

welfare of a child; and one count of third-degree aggravated

criminal sexual contact.           In his direct appeal, we affirmed the

convictions, but remanded and directed the judge to determine the

applicable parole ineligibility period pertaining to one of the

aggravated sexual assault convictions and to amend the judgment

of conviction (JOC) if warranted.           State v. Mercado, No. A-3394-

11 (App. Div. Jan. 22, 2015).               Defendant then filed a post-

conviction    relief   (PCR)   petition     alleging   that   trial   counsel

provided ineffective assistance of counsel by: meeting with him

for a limited time; not hiring an investigator to assist in trial

preparation; not objecting at trial, which allowed testimony to

go   unchallenged;     and   not    objecting   to   the   State's    expert's

testimony.

      Judge Collen M. Flynn denied PCR without an evidentiary

hearing, issuing an order and written opinion dismissing the

petition.     Applying the well-known PCR standard articulated in

Strickland v. Washington, 
466 U.S. 668, 687, 694 (1984) and State

v. Fritz, 
105 N.J. 42, 58 (1987), the judge found that defendant

failed to set forth a prima facie case of ineffective assistance

of counsel.

      As to defendant's claim that counsel met with him a limited

number of times, Judge Flynn determined that such a claim can

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serve as a basis for counsel's ineffectiveness, State v. Savage,


120 N.J. 594, 617 (1990), but defendant neither explained what he

meant by claiming to have "limited time" with counsel nor indicated

how more time with counsel would have changed the outcome of the

trial.   Moreover, the judge found that since the defense presented

two witnesses who attacked the credibility of defendant's accusers

by substantiating his testimony that the allegations against him

were fabricated, counsel developed a reasonable defense.   With the

same reasoning, the judge rejected the claim that counsel failed

to hire an investigator because it was a vague allegation without

any indication to what an investigator could have done to alter

his conviction, and the witnesses he presented supported his

defense, which the jury apparently determined was not credible.

     Judge Flynn found no merit to defendant's remaining arguments

that counsel failed to object to the testimony of the State's

witnesses. As to the lay witnesses, the judge maintained defendant

made broad assertions without citing any specific testimony that

was inadmissible and how it prejudiced his trial.      Besides, the

judge pointed to several times in the record where counsel made

objections to witnesses' testimony that were denied.   With respect

to the State's expert witness, Dr. Jamila Irons-Johnson, who

testified about the child sexual abuse accommodation syndrome

(CSAAS), the behaviors in sexually abused children, the judge

                                 3                          A-0219-16T4
determined   there   was   no   reasonable   basis   to   object   to   her

testimony; she was properly qualified and her testimony was within

the bounds set forth in State v. W.B., 
205 N.J. 588, 611 (2011)

(recognizing that a CSAAS expert cannot opine that a child victim

was abused).

      On appeal, defendant argues:

          POINT I

          THE PCR COURT'S DECISION SHOULD BE REVERSED
          AND THIS MATTER REMANDED TO THE LAW DIVISION
          AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE
          OF COUNSEL IN PRESENTING HIS PETITION FOR PCR
          IN THE LAW DIVISION. (NOT RAISED BELOW)

          POINT II

          THE PCR COURT'S DECISION SHOULD BE REVERSED
          AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE
          OF COUNSEL AT TRIAL IN VIOLATION OF HIS RIGHTS
          UNDER THE SIXTH AMENDMENT TO THE UNITED STATES
          CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF
          THE NEW JERSEY CONSTITUTION.

          [A.] TRIAL COUNSEL PROVIDED INEFFECTIVE
          ASSISTANCE BY FAILING TO MEET WITH DEFENDANT
          SUFFICIENTLY BEFORE TRIAL.

          [B.] TRIAL COUNSEL PROVIDED INEFFECTIVE
          ASSISTANCE BY FAILING TO OBJECT TO THE STATE'S
          INTRODUCTION OF EXPERT TESTIMONY ON CHILD
          SEXUAL ABUSE ACCOMMODATION SYNDROME.

          [C.] TRIAL COUNSEL PROVIDED INEFFECTIVE
          ASSISTANCE   BY   FAILING   TO    RETAIN   AN
          INVESTIGATOR TO ASSIST IN TRIAL PREPARATION.




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Having considered these arguments in light of the record and

applicable legal standards, defendant's arguments lack sufficient

merit to warrant discussion in a written opinion, R. 2:11-3(e)(2),

and we affirm substantially for the reasons set forth by Judge

Flynn in her cogent decision.        We add only the following.

     A    court   reviewing   a    PCR       petition   based   on   claims    of

ineffective assistance has the discretion to grant an evidentiary

hearing if a defendant establishes a prima facie showing in support

of the requested relief.          State v. Preciose, 
129 N.J. 451, 462

(1992).    The mere raising of a claim for PCR does not entitle a

defendant to an evidentiary hearing.             State v. Cummings, 
321 N.J.

Super. 154, 170 (App. Div. 1999).             The court should only conduct

a hearing if there are disputed issues as to material facts

regarding entitlement to PCR that cannot be resolved based on the

existing record.      State v. Porter, 
216 N.J. 343, 354 (2013).

Because here there are no such disputed facts and defendant failed

to set forth a prima facie case of ineffective assistance of

counsel, an evidentiary hearing was not warranted.

     Affirmed.




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