Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. JASON PETTIS

NOT FOR PUBLICATION WITHOUT THE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-1137-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JASON PETTIS,

        Defendant-Appellant.


              Submitted October 31, 2017 – Decided November 13, 2017

              Before Judges Yannotti and Carroll.

              On appeal from the Superior Court of New
              Jersey, Law Division, Middlesex County,
              Indictment Nos. 09-08-1370 and 09-08-1383.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (William Welaj, Designated
              Counsel, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Arielle E. Katz,
              Deputy Attorney General, of counsel and on the
              brief).

PER CURIAM
     Defendant Jason Pettis appeals from the denial of his petition

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

For the reasons that follow, we affirm.

     In October 2011, a jury convicted defendant of second-degree

aggravated assault, 
N.J.S.A. 2C:12-1b(1), as a lesser-included

offense of first-degree attempted murder, 
N.J.S.A. 2C:5-1 and


N.J.S.A. 2C:11-3a(1) or (2) (count one); second-degree unlawful

possession of a weapon, 
N.J.S.A. 2C:39-5b (count two); and second-

degree possession of a weapon for an unlawful purpose, 
N.J.S.A.

2C:39-4(a) (count three).      In a second trial, the same jury

convicted defendant of second-degree possession of a weapon by a

prohibited person, 
N.J.S.A. 2C:39-7b.

     On December 22, 2011, defendant was sentenced to an extended

term of fifteen years imprisonment on the aggravated assault

charge, with an eighty-five percent period of parole ineligibility

under the No Early Release Act, 
N.J.S.A. 2C:43-7.2.          The court

merged count two with count three, and imposed a concurrent seven-

year prison term.   A consecutive five-year sentence with no parole

eligibility was imposed on the certain persons not to have weapons

offense, resulting in an aggregate twenty-year prison term with

seventeen years and nine months of parole ineligibility.

     Defendant   appealed   and,   in   an   unpublished   opinion,    we

affirmed his convictions and sentence, but remanded to correct an

                                   2                            A-1137-16T3
error in the judgment of conviction.1      State v. Pettis, No. A-

3508-11 (App. Div. Dec. 27, 2013).        The Supreme Court denied

defendant's petition for certification.   State v. Pettis, 
218 N.J.
 531 (2014).

     The facts underlying defendant's convictions are set forth

in our earlier opinion and need not be repeated in the same level

of detail here.    Pettis, supra, slip op. at 3-7 (App. Div. Dec.

27, 2013).    Briefly summarizing, the State alleged defendant shot

the victim, Jarred Campfield, multiple times at close range.     The

two men had allegedly been involved in a physical altercation

within the previous week.    On the day in question, Campfield told

police "it was Jason" who shot him, and "he was wearing a white

t-shirt, blue jeans, and he had dreadlocks."      Soon thereafter,

however, Campfield became uncooperative.       At trial, Campfield

testified he did not know who shot him, and denied he provided

police with the name of the shooter.

     Robert VanAnglen, a mutual acquaintance of defendant and

Campfield, testified he witnessed the shooting, and identified

defendant as the shooter.   VanAnglen stated he heard defendant say

"what's up, home boy" to Campfield before shooting him five to


1
  We directed that defendant's conviction for unlawful possession
of a weapon merge with the aggravated assault conviction rather
than the conviction for possession of a weapon for an unlawful
purpose.

                                  3                         A-1137-16T3
seven times.       The State also presented evidence that defendant

left New Jersey after the shooting and was ultimately located in

Illinois nearly a year later.

     In August 2014, defendant filed a PCR petition alleging

ineffective assistance of trial and appellate counsel. PCR counsel

was appointed and submitted a brief contending trial counsel failed

to: (1) conduct an adequate investigation, specifically by failing

to locate and interview Campfield prior to trial; (2) effectively

cross-examine witnesses; (3) effectively counter testimony that

defendant left the State while on probation; and (4) present

effective    opening      and   closing    statements.   Defendant      also

requested an evidentiary hearing on his petition.

     Judge Joseph Paone, who was also the trial judge, denied

defendant's petition by order filed on October 13, 2016.             Judge

Paone determined defendant failed to establish a prima facie case

in support of his petition after carefully analyzing each of

defendant's contentions.

     In his comprehensive oral opinion, Judge Paone found that

trial counsel's pre-trial investigation and failure to interview

Campfield    did    not     fall   below    an   objective   standard    of

reasonableness.      The judge added:

            [I]t's clear here that [defendant] is unable
            to articulate what benefit the interview of
            [Campfield] would have accomplished here.

                                      4                           A-1137-16T3
          [Defendant] knew exactly what the victim was
          going to testify to prior to trial, and, in
          fact, the victim testified, essentially, in
          conformance with the information that had been
          provided by the [S]tate to the defense before
          the commencement of trial, and [defendant] has
          failed to demonstrate how this decision not
          to interview the victim has prejudiced him in
          any way.

     The judge further reasoned that Campfield's reluctance to

testify for the prosecution was irrelevant to the State's pre-

trial plea offer and would not affect the jury's determinations

because Campfield's on-the-scene identification of defendant as

the shooter was admissible as an excited utterance, N.J.R.E.

803(c)(2), and as a prior identification, N.J.R.E. 803(a)(3);2 and

because an independent eyewitness, VanAnglen, made a confirmatory

identification of defendant as the shooter.

     With respect to defendant's other ineffective assistance of

counsel claims, Judge Paone found trial counsel's opening and

closing remarks sufficient.      In his opening statement, counsel

"introduced   the   issue   of   identification[,]   discussed   the

prosecutor's role [and] urged the jury to pay [ ] careful attention


2
  The judge also found Campfield's prior identification of
defendant was non-testimonial under Crawford v. Washington, 
541 U.S. 36, 53-54, 
124 S. Ct. 1354, 1365-66, 
158 L. Ed. 2d 177, 194
(2004) (holding that the Confrontation Clause only forbids the
hearsay use of "testimonial" out-of-court declarants). See also
Davis v. Washington, 
547 U.S. 813, 832, 
126 S. Ct. 2266, 2279, 
165 L. Ed. 2d 224, 243 (2006) (creating an exception for otherwise
testimonial statements under the "public safety exception").

                                  5                         A-1137-16T3
to the evidence[.]"            Similarly, during closing remarks, trial

counsel discussed "the inconsistencies of the case, the witness'

credibility, [and] the fact [] defendant was not the shooter[.]"

The judge also found defendant was not prejudiced by counsel's

opening and closing statements.

      Judge    Paone       rejected    defendant's        contention     that     trial

counsel failed to effectively cross-examine the State's witnesses.

He found that, while cross-examining Campfield, defense counsel

"established identification issues, specifically, that Campfield

had   lied    at    some     point    about      identifying    defendant       as   the

shooter[.]"        Similarly, while cross-examining VanAnglen, defense

counsel "highlighted the integral issue of identification in this

case by eliciting the [eyewitness's] description of the shooter

did not match [ ] Campfield's description based on what [counsel]

elicited through his adversarial testing of the prosecution's

witness."

      Judge Paone found unpersuasive defendant's argument that

trial counsel was ineffective in exploring why defendant violated

his probationary program and fled to Illinois after the shooting.

Rather, to combat the State's theory that this showed consciousness

of guilt, defense counsel offered "an alternative motive for

defendant's        flight,     that    his       mother   and   family    lived        in

Illinois[.]"

                                             6                                  A-1137-16T3
     Judge Paone concluded defendant did not establish a prima

facie showing of ineffective assistance of counsel and therefore

no evidentiary hearing was required.       This appeal followed, in

which defendant presents a single point for our consideration:

          THE TRIAL COURT ERRED IN DENYING THE
          DEFENDANT'S PETITION FOR POST CONVICTION
          RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
          HEARING TO FULLY ADDRESS HIS CONTENTION THAT
          HE   FAILED   TO   RECEIVE   ADEQUATE  LEGAL
          REPRESENTATION FROM TRIAL COUNSEL.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668, l
04 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.

Fritz, l
05 N.J. 42 (l987).      In order to prevail on a claim of

ineffective   assistance   of   counsel,   defendant   must   meet   the

following two-prong test: (l) counsel's performance was deficient

and he or she made errors so egregious counsel was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, supra, 
466 U.S.  at 694, l
04 S. Ct.  at 2068, 
80 L. Ed. 2d   at 698.


                                   7                            A-1137-16T3
     Here, defendant focuses his appeal on his contention that

trial counsel was ineffective for failing to conduct an adequate

pretrial investigation with respect to the victim, Campfield.

Defendant asserts, without any record support, that Campfield

could    have   potentially     provided          testimony     that    would     have

exonerated him.       Defendant further argues that an evidentiary

hearing should have been ordered so that trial counsel could have

been questioned about his alleged improper investigation.

     When   a   defendant     asserts       his    attorney     has    inadequately

investigated    his   matter,    "he    must       assert     the   facts   that    an

investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant

or the person making the certification."                    State v. Porter, 
216 N.J. 343, 353 (2013) (citing State v. Cummings, 
321 N.J. Super.
 154, 170 (App. Div.), certif. denied, 
162 N.J. 199 (1999)).                     Thus,

a defendant "must do more than make bald assertions that he was

denied the effective assistance of counsel."                 Cummings, supra, 
321 N.J. Super. at 170.

     Here, defendant fails to meet this standard.                   He proffers no

competent evidence of what counsel would have discovered had he

interviewed Campfield, or how Campfield's testimony or the result

at trial would have differed had counsel interviewed him.                           In

short,    defendant's    claim    that       trial     counsel        conducted     an

                                        8                                    A-1137-16T3
inadequate investigation is merely a bald assertion devoid of any

substance.

     The     record   also   supports   Judge   Paone's   findings    on

defendant's other claims.     Accordingly, we are satisfied from our

review of the record that defendant failed to make a prima facie

showing of ineffectiveness of trial counsel under the Strickland-

Fritz test.    The judge correctly concluded an evidentiary hearing

was not warranted.     See State v. Preciose, 
129 N.J. 452, 462-63

(1992).    Moreover, in view of the evidence presented, it appears

defense counsel was quite effective in securing a jury verdict of

aggravated assault as a lesser-included offense of the charged

crime of attempted murder.

     Affirmed.




                                   9                           A-1137-16T3