STATE OF NEW JERSEY v. NORMAN REID

NOT FOR PUBLICATION WITHOUT THE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-2909-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

NORMAN REID,

     Defendant-Appellant.
_________________________________

              Submitted October 11, 2017 – Decided December 19, 2017

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 96-
              11-1122.

              Norman Reid, appellant pro se.

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel Marzarella,
              Chief Appellate Attorney, of counsel; Roberta
              DiBiase, Senior Assistant Prosecutor, on the
              brief).


PER CURIAM

        On January 16, 1997, a jury convicted defendant of first-

degree      aggravated     manslaughter      and   related     offenses,     which

resulted in a life sentence with twenty-five years of parole
ineligibility.   He subsequently filed several appeals and post-

conviction relief (PCR) petitions that we need not discuss as they

are set forth in detail in our unpublished decision, State v.

Norman Reid, No. A-0106-13 (App. Div. June 15, 2015), denying his

third PCR petition.

     Defendant now alleges in his fourth PCR petition that he was

entitled to a new trial because the State violated Brady v.

Maryland, 
373 U.S. 83, 87 (1963), by failing to provide evidence

of a key State witness's prior conviction that would have allowed

him to impeach the witness's credibility. The Office of the Public

Defender declined defendant's request for assignment of counsel

unless the PCR court determined that the petition had "good cause."

R. 3:22-6(b).

     On January 7, 2016, Judge James M. Blaney denied the PCR

petition without an evidentiary hearing, issuing an order and

letter opinion dismissing the petition for lack of good cause.

Citing State v. Cummings, 
321 N.J. Super. 154, 170 (App. Div.

1999), the judge reasoned that defendant made bald assertions of

his trial counsel's ineffective performance without any facts

"supported by affidavits and certifications by witnesses who would

possesses personal knowledge of that performance."       The judge

found defendant's claim that the State deprived him of the ability

to impeach a witness's credibility based upon a prior conviction

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was a collateral issue, which does not support PCR.               Since the

petition lacked good cause, the judge determined defendant was not

entitled to assignment of counsel.

      Following     the     dismissal,      defendant      submitted        two

certifications to Judge Blaney: his own stating it was not until

November 2014, that he learned the witness had a prior conviction;

and trial counsel's stating that he could not recall whether the

State's discovery included the witness's criminal history, but if

it did, he would have used the conviction for impeachment purposes.

In   response,    Judge   Blaney   issued   a   February   5,   2016    letter

reiterating that defendant's PCR petition was dismissed for the

same reasons set forth in his January 7 letter opinion.1

      In this appeal, defendant raises a single-point:

           THE PCR COURT ERRED WHEN IT DISMISSED THE
           DEFENDANT'S PETITION WITHOUT AN EVIDENTIARY
           HEARING   AFTER   BEING  SUPPLIED   WITH   A
           CERTIFICATION OF HIS TRIAL ATTORNEY AND A
           CERTIFICATION OF THE DEFENDANT IN SUPPORT OF
           PCR.

                  (a) THIS PETITION IS NOT TIME
                  BARRED AND GOOD CAUSE EXISTS FOR THE
                  ASSIGNMENT OF COUNSEL ON THIS
                  SUBSEQUENT PETITION.

                  (b) THE PETITIONER WAS ENTITLED TO
                  AN EVIDENTIARY HEARING.


1
  Although defendant's Notice of Appeal indicates that an order
was entered on February 5, 2016, no order is included in the
record.

                                     3                                 A-2909-15T4
Defendant's arguments lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2). We add only the following.

     To demonstrate ineffective assistance of counsel, a defendant

must satisfy the two-part Strickland test by demonstrating that

"counsel's performance was deficient," that is, "that counsel made

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

guaranteed the defendant by the Sixth Amendment," and "there is a

reasonable probability that, but for counsel's unprofessional

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

Strickland v. Washington, 
466 U.S. 668, 687, 694 (1984); accord

State v. Fritz, 
105 N.J. 42, 58 (1987).

     A    court   reviewing   a   PCR       petition   based   on   claims    of

ineffective assistance has the discretion to grant an evidentiary

hearing only 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.            Cummings, 
321 N.J. Super.

at 170.   When determining whether to grant an evidentiary hearing,

the PCR court must consider the facts in the light most favorable

to the defendant to determine if a defendant has established a

prima facie claim. Preciose, 
129 N.J. at 462-63. The court should

only conduct a hearing if there are disputed issues as to material



                                        4                              A-2909-15T4
facts regarding entitlement to PCR that cannot be resolved based

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

      Here, there is no evidence that trial counsel was aware of

the witness's prior conviction and failed to use the information

to   impeach   the   witness's   credibility.   We   therefore    affirm

substantially for the reasons expressed by Judge Blaney in his

written decisions.

      Affirmed.




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