STATE OF NEW JERSEY v. ROBERT MCCALLUM

NOT FOR PUBLICATION WITHOUT THE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-0719-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBERT MCCALLUM,

     Defendant-Appellant.
_______________________________

              Submitted January 22, 2018 – Decided February 5, 2018

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              93-12-1844.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kisha M. Hebbon, Designated
              Counsel, on the brief).

              Denis Calo, Acting Bergen County Prosecutor,
              attorney for respondent (Michael R. Philips,
              Special   Deputy   Attorney   General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant Robert McCallum appeals from a September 7, 2016

order   denying   his   third   petition   for   post-conviction    relief

("PCR").   We affirm.

     The pertinent background has been set forth previously in

several prior opinions.     After a jury trial in 1995, defendant was

found guilty of murder, possession of a weapon for an unlawful

purpose, and possession of a handgun without a permit.             He was

acquitted of felony murder and first-degree robbery.        The State's

theory at trial was that defendant lured the homicide victim to a

parking lot of an apartment building, where the victim, an alleged

drug dealer, was killed.        Defendant steadfastly maintained his

innocence and contended that he was not the person who killed the

victim.

     Following the jury trial, the trial court imposed a life

sentence with a thirty-year parole disqualifier.            Defendant's

conviction was upheld on direct appeal in 1997 and the Supreme

Court denied certification.        State v. McCallum, No. A-6507-94

(App. Div. Sept. 25, 1997), certif. denied, 
153 N.J. 404 (1998).

     Defendant thereafter filed two successive PCR petitions, both

of which resulted in denials by the trial court that this court

affirmed on appeal.     State v. McCallum, No. A-5276-99 (App. Div.

Oct. 15, 2001), certif. denied, 
172 N.J. 180 (2002); State v.

McCallum, No. A-3196-07 (App. Div. Feb. 6, 2009).          In addition,

                                    2                              A-0719-16T4
defendant    unsuccessfully   pursued    habeas   corpus   relief    in   the

federal courts.    McCallum v. Moore, No. 03-2529 (D.N.J. Dec. 7,

2005).

     In his present third petition for PCR, defendant contended

that his trial counsel was ineffective in allegedly failing to

tell him about a supposed pretrial offer by the State to plead to

a lesser-included offense of aggravated manslaughter.             He claims

he learned about this supposed offer only after speaking with his

former trial counsel about the subject in 2013.

     Significantly, defendant did not provide to the PCR court a

certification from his former trial counsel substantiating the

alleged plea offer by the State.          In addition, a letter dated

March 14, 1995 from defendant's trial counsel to the assistant

prosecutor, sent after the State had won suppression motions,

"wonder[ed] if you had given any consideration to a possible plea

offer in this matter."     The record is bereft of evidence that the

State responded to this letter by making any plea offer.            In fact,

the issuance of such an offer was unlikely because defendant was

maintaining his innocence and the State was in a position of

strength after prevailing on the suppression motions.

     Judge    Edward   Jerejian,   the   judge    who   fielded   this    PCR

application, issued a written decision on September 7, 2016 denying

the petition without an evidentiary hearing.

                                    3                                A-0719-16T4
      Defendant now argues on appeal:

           POINT I

           THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
           PETITION FOR POST CONVICTION RELIEF WITHOUT
           AFFORDING HIM AN EVIDENTIARY HEARING TO
           DETERMINE THE MERITS OF HIS CONTENTION THAT
           HE WAS DENIED THE RIGHT TO THE EFFECTIVE
           ASSISTANCE OF COUNSEL.

                A.    The Prevailing Legal Principles
                regarding    Claims    of  Ineffective
                Assistance   Of   Counsel, Evidentiary
                Hearings   And   Petitions  for   Post
                Conviction Relief.

                B.   Trial Counsel Rendered Ineffective
                Legal Representation By Virtue Of His
                Failure To Inform Defendant Of The
                State's Plea Offer Prior To Trial.

                C. Defendant Is Entitled To A Remand To
                The Trial Court To Afford Him An
                Evidentiary Hearing To Determine The
                Merits Of His Contention That He Was
                Denied The Effective Assistance Of Trial
                Counsel.

      Substantially for the sound reasons cited by Judge Jerejian,

we affirm the denial of this latest PCR petition.        Defendant has

not   established    a   prima   facie   case    of   trial   counsel's

ineffectiveness warranting an evidentiary hearing under Strickland

v. Washington, 
466 U.S. 668, 687 (1984).        See State v. Preciose,


129 N.J. 451, 462-63 (1992). There is simply no competent evidence

in the record indicating that the State ever made a pretrial plea

offer to this defendant.


                                   4                            A-0719-16T4
     The 2013 hearsay assertion that defendant attributes to his

former trial counsel, who supposedly recalled nearly two decades

after the 1995 trial that the State had made such an offer, is

insufficient to require an evidentiary hearing.          As Judge Jerejian

correctly perceived, such "bald assertions" are inadequate to

warrant an evidentiary hearing on PCR.         See State v. Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999) (noting that PCR relief

requires more than "bald assertions" by a defendant); see also R.

3:22-10(b);   State   v.   Porter,       
216 N.J.   343,   356-57    (2013)

(reaffirming these principles in evaluating which of a defendant's

various PCR claims warranted an evidentiary hearing).

     Affirmed.




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