STATE OF NEW JERSEY v. ANTHONY O. ROSE

NOT FOR PUBLICATION WITHOUT THE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-0710-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANTHONY O. ROSE, a/k/a
MU MU,

     Defendant-Appellant.
______________________________

              Submitted February 7, 2018 – Decided March 16, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              10-04-0642.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Roseanne Sessa,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Anthony Rose appeals from the denial of his post-

conviction relief (PCR) petition without an evidentiary hearing.
Defendant contends counsel was ineffective in advising him to

reject all plea recommendations, and failing to object to certain

issues during trial.         Because we find that the trial issues should

have been raised in the direct appeal, and that defendant failed

to demonstrate a prima facie case of ineffective assistance of

counsel, we affirm.

     Defendant was charged in an indictment with: first-degree

purposeful/knowing murder, in violation of 
N.J.S.A. 2C:11-3(a)(1)

and (2) (count one); second-degree possession of a firearm for an

unlawful purpose, in violation of 
N.J.S.A. 2C:39-4(a) (count two);

second-degree unlawful possession of a handgun, in violation of


N.J.S.A.    2C:39-5(b)       (count    three);       fourth-degree     terroristic

threats, in violation of 
N.J.S.A. 2C:12-3(b) (count four); second-

degree   possession     of    a    firearm     for   an   unlawful    purpose,    in

violation    of    N.J.S.A.       2C:39-4(a)    (count    five);     second-degree

unlawful possession of a handgun, in violation of 
N.J.S.A. 2C:39-

5(b) (count six); and second-degree possession of a weapon by a

convicted felon, in violation of 
N.J.S.A. 2C:39-7(b) (count ten).

     After a jury trial, defendant was convicted of the lesser-

included offense of aggravated manslaughter, count one, but found

not guilty of counts two and three.                  The remaining counts were

dismissed.        The judge imposed a sentence of twenty-five years

subject to an eighty-five percent parole disqualification period

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pursuant to the No Early Release Act, 
N.J.S.A. 2C:43-7.3.          We

affirmed defendant's direct appeal of his conviction and sentence.

State v. Rose, No. A-2696-12 (App. Div. Oct. 20, 2014).          The

Supreme Court denied the subsequent petition for certification.

State v. Rose, 
221 N.J. 286 (2015).

     Defendant filed a petition for PCR in July 2015, which was

supplemented by assigned counsel.     Defendant argued that trial

counsel had erred in advising him to reject all plea offers and

proceed to trial.     He asserted further that counsel failed to

object to certain leading questions posed by the prosecutor to

several witnesses, failed to object to prejudicial comments made

by the State during summation, and failed to object to the jury

charge.   In a comprehensive written decision, Judge John A. Young,

Jr. denied defendant's request for an evidentiary hearing and his

PCR petition.   The judge found defendant's argument concerning the

jury charge was adjudicated in the direct appeal, and the remainder

of his arguments did not demonstrate prima facie evidence of

ineffective assistance of 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 (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,

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defendant must meet the two-prong test, establishing both that:

(l) counsel's performance was deficient and he or she made errors

that were so egregious that 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, 
466 U.S.  at 687, 694.

      Defendant contends that trial counsel was ineffective in his

advice to proceed to trial rather than accept a plea offer.

Defendant claims that he was tendered a plea offer of five years

with a five-year parole disqualifier, an offer far more favorable

than the twenty-five-year sentence with an eighty-five percent

parole    disqualification     period       that    was   imposed   after     his

conviction at trial.      He contends that trial counsel advised him

to reject the offer.      However, his assertions regarding the terms

of the plea offer do not come by way of an affidavit and are

unsupported by the record.

      The State denies ever tendering a five-year plea deal, instead

contending that the plea cutoff recommendation was an eighteen-

year term with an eighty-five percent parole disqualification

period.   The State also notes that defendant claims the five-year

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offer was made at a point during the pretrial proceedings when the

State had been successful on several pre-trial motions.   It argues

that it is illogical to conclude that defendant was offered a very

favorable plea deal after the State had prevailed on pre-trial

issues.

     In addressing this contention, Judge Young stated:

          [Defendant's]    assertion   of   ineffective
          assistance as it pertains to trial counsel's
          recommendation that he proceed to trial is
          unsupported.   [Defendant] has not supplied
          anything to support this allegation nor has
          he submitted an affidavit stating that he
          wanted to resolve the matter or was offered a
          five-year sentence.      In fact, the record
          indicates that . . . [t]he State's offer at
          plea cut-off was for an eighteen-year state
          prison sentence.    [I]t is not reasonable to
          believe the State made a subsequent offer to
          [defendant] for a five-year state prison
          sentence after it prevailed on three pretrial
          motions following plea cutoff.

     In presenting a PCR petition, "[a] defendant must allege

specific facts and evidence supporting his allegations[,]" State

v. Porter, 
216 N.J. 343, 355 (2013), and "do more than make bald

assertions that he was denied the effective assistance of counsel."

State v. Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999).    PCR

petitions must be "accompanied by an affidavit or certification

by defendant, or by others, setting forth with particularity the

facts that he wished to present."    State v. Jones, 
219 N.J. 298,

312 (2014).   Here, defendant has failed to provide any supporting

                                 5                          A-0710-16T2
evidence other than his own assertion and, therefore, he has not

presented prima facie evidence of ineffective assistance.

    We conclude that the remainder of defendant's arguments lack

sufficient merit to warrant discussion in a written opinion, R.

2:11-3(e)(2), and affirm substantially for the cogent reasons

expressed by Judge Young.   Defendant's contentions pertaining to

the prosecutor's leading questions and comments during summation

were issues for the direct appeal.      Furthermore, Judge Young

analyzed the objectionable remarks and found them lacking in

prejudice.   He also concluded that trial counsel's failure to

object to the comments was not objectively unreasonable.

    We are satisfied that defendant did not establish a prima

facie case of ineffective counsel and thus is not entitled to an

evidentiary hearing.

    Affirmed.




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