STATE OF NEW JERSEY v. CHARLES CARTER, JR

NOT FOR PUBLICATION WITHOUT THE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-2379-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHARLES CARTER, JR.,

     Defendant-Appellant.
________________________________

              Submitted May 23, 2018 – Decided June 14, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No.
              10-01-0004.

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

              Ann M. Luvera, Acting Union County Prosecutor,
              attorney for respondent (Alexandra L. Pecora,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Charles Carter, Jr., appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary
hearing based on a claim of ineffective assistance of appellate

counsel.      We affirm.

      On   January      5,   2010,    a   Union    County    grand     jury   charged

defendant     with:     first-degree      armed     robbery,     
N.J.S.A.     2C:15-1

(count one); third-degree aggravated assault, 
N.J.S.A. 2C:12-

1(b)(2) (count two); third-degree aggravated assault, 
N.J.S.A.

2C:12-1(b)(7) (count three); fourth-degree unlawful possession of

a weapon, 
N.J.S.A. 2C:39-5(d) (counts four and six); third-degree

unlawful possession of a weapon, 
N.J.S.A. 2C:39-4(d) (count five);

fourth-degree obstruction of law or other governmental function,


N.J.S.A.      2C:29-1    (count      eight);      and,    third-degree    resisting

arrest, 
N.J.S.A. 2C:29-2(a) (count nine).

      The court conducted a Wade1 hearing, beginning on June 15,

2011,   and    continuing      on    October      14,    2011.    At   the    October

continuation, the court denied defendant's motion to suppress out-

of-court identifications by the liquor store owners, Hemlata and

Arvind Patel.     On January 4, 2012, defendant moved to re-open the

Wade issue based on newly received discovery that Hemlata saw

defendant as he was being loaded into the ambulance before being

shown the photo array.          The court heard additional testimony and




1
    United States v. Wade, 
388 U.S. 218 (1967).

                                           2                                  A-2379-16T2
argument on January 10, 2012, and again ruled the out-of-court

identifications admissible.

       Defendant was tried before a jury on January 4, 5, 10, 11,

12, and 13, 2012.       The court dismissed count seven on January 11,

2012.      Two days later, the jury found defendant guilty of all

remaining charges.       At his sentencing hearing on April 13, 2012,

the court found three aggravating factors and no mitigating factors

applicable to the sentence.        The court merged counts two through

five with count one, and sentenced defendant to sixteen years in

prison, subject to the No Early Release Act (NERA) 
N.J.S.A. 2C:43-

7.2.    On counts six, eight and nine, the court sentenced defendant

to   two   terms   of   twelve   months   and   one   term   of   four    years,

respectively, to be served concurrently with one another, but

consecutively to count one.          The aggregate sentence was twenty

years in prison, sixteen of which were subject to the eighty-five

percent parole disqualifier of NERA.              Defendant appealed his

conviction, and we affirmed.       State v. Carter, No. A-5147-11 (App.

Div. July 15, 2014) (slip op. at 2-8), certif. denied, 
220 N.J.
 208 (2014).

       We derive the salient facts from our prior opinion:

                  On July 23, 2009, a man came into Aarti's
             World Discount Liquors on Highway 22 in Union,
             displayed a knife, and demanded money.     One
             of the owners of the liquor store, Hemlata
             Patel, testified that about fifteen minutes

                                      3                                  A-2379-16T2
before the robbery, the same man entered the
store and remained for about five to seven
minutes. She recalled that she had seen the
same man earlier that morning in the parking
lot of the motel across the highway. The man
approached the counter, stood two or three
feet away, and asked for lottery tickets.
After a conversation of a few minutes, the man
started walking toward the back of the store.
Hemlata asked the man to pay for the tickets,
but he gestured, indicating that he forgot his
wallet and was going to get it.

     Fifteen minutes later, the man returned.
Upon entering the store, he jumped on the
counter and said "give me the money." He was
holding a knife and a white towel. Hemlata
attempted to separate herself from him by
putting a small table between them, but the
man knocked her over.         She identified
defendant as the man who had come into the
store, demanded money, and threatened her with
a knife.

     The other owner of the store, Arvind
Patel, had been sitting behind a shelving
unit. He pushed the panic button to summon
the police and came to his wife's aid.      He
struggled with defendant. Defendant jumped
back on the counter, slashed Arvind's arm with
the knife, and ran out of the store.

     Police Officers Juan Vargas and Scott
Heath arrived and found Arvind in the doorway
with a towel wrapped around his forearm. The
officers saw the store was in disarray and
there was blood in the entryway, on the
counter, and on the sides of the counter.
Officer Vargas examined Arvind's wound, and
later described it as a couple of inches deep
and six to eight inches long.

     Detective Donald Cook of the Union County
Police Identification Bureau arrived at the
scene and took the white towel and placed it

                      4                          A-2379-16T2
           in a bag for DNA analysis. He took a number
           of photographs of the scene. He also dusted
           the counter for fingerprints, but did not
           obtain usable prints.

                Five days later, on July 28, 2009,
           Detective Christopher Baird saw defendant in
           the parking lot of the liquor store. Baird
           recognized defendant as a man he had seen
           walking on the bridge over Route 22 towards
           the liquor store on the date of the robbery.
           Defendant was carrying a red utility knife
           when Detective Baird saw him on July 28. Baird
           and his partner ordered defendant to stop, but
           defendant ran.     The officers chased him
           through the parking lot, across Route 22, and
           to the Garden State Motor Lodge.

                When the officers cornered defendant, he
           had his feet tangled in a fence. Defendant
           sliced his own throat three times with the
           utility knife. The officers, and other police
           who had arrived, ordered defendant to give the
           knife to one of the officers.        Defendant
           eventually complied, and the officers attended
           to his wounds and took him to a hospital.

                At the hospital, Officer Heath read
           defendant Miranda[2] warnings.   Defendant was
           lying on a gurney and seemed lucid and not
           under   the  influence    of   any   drugs  or
           medication.   The officer did not question
           defendant at that time. One or two minutes
           later, defendant initiated a conversation and
           asked Officer Vargas to do him a favor. He
           asked the officer to apologize to several of
           his family members and to tell the owners of
           the liquor store that he was sorry, that he
           did not mean to hurt them, and that he just
           wanted the money.       Vargas inquired what
           robbery defendant was referring to and whether
           he had a weapon. Defendant answered that he
           was referring to the liquor store across the

2
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                 5                          A-2379-16T2
highway from the motel and that he had used
the same knife he was holding when arrested.

     On the day of defendant's arrest, Hemlata
Patel saw him from across the highway as he
was being placed in an ambulance. She knew
he was the robber. Two days later, Hemlata
and Arvind Patel were shown photo arrays
separately, and both identified defendant as
the robber.      The arrays were shown by
Detective George Moutis, who was not involved
in the investigation and did not know which
photograph was the suspect in the robbery.
Hemlata and Arvind also identified defendant
as the robber while they testified at the
trial.

     In addition to the victims and police
witnesses, the State presented testimony at
trial   from  Margaret   Cuthbert,  who   was
qualified as an expert in forensic DNA
analysis. Cuthbert tested two stains from the
white towel that was recovered from the scene
of the robbery. She concluded that Arvind was
likely the source of a red-brown blood stain,
and that defendant was likely the source of a
yellow stain.

     Defendant presented testimony of his
father Charles Carter, Sr., regarding a police
detective conveying an apology from defendant;
his sister Theresa Counts regarding his
physical appearance at the time in comparison
to the victims' descriptions of the robber;
Detective Cook regarding a shoeprint at the
scene of the robbery; and his own testimony
denying involvement in the robbery. Defendant
testified he had never been to the store. He
also denied running from the police on July
28, 2009. Defendant said he was sitting next
to the fenced area where he was arrested when
the police found him. According to defendant,
he had just purchased a box cutter and was
going to use it to take his own life, but not
because he committed the robbery. He also

                      6                          A-2379-16T2
          denied making any statement or confession to
          the police at the hospital.

          [Id. at 2-8.]

     Defendant filed his petition for PCR on December 14, 2015.

After hearing arguments, Judge John M. Deitch denied defendant's

petition without an evidentiary hearing on October 27, 2016.   This

appeal followed.

     On appeal, defendant raises the following points:

                             POINT I

          THE   PCR  COURT   SHOULD   HAVE  HELD  THAT
          DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF
          COUNSEL WAS VIOLATED BY APPELLATE COUNSEL'S
          FAILURE TO ARGUE THE VICTIM'S IDENTIFICATION
          OF DEFENDANT WAS IRREVOCABLY TAINTED BY A
          SUGGESTIVE PHOTO ARRAY. (U.S. CONST. AMEND.
          VI; N.J. CONST. ART. I, ¶ 10).

                            POINT II

          APPELLATE   COUNSEL    PROVIDED    INEFFECTIVE
          ASSISTANCE BY FAILING TO ARGUE THAT THE STATE
          WAS IMPROPERLY PERMITTED TO INTRODUCE FALSE
          IDENTIFICATION TESTIMONY BY THE VICTIM'S
          DAUGHTER, EVEN THOUGH SHE HAD NOT BEEN PRESENT
          DURING THE ROBBERY.

                            POINT III

          APPELLATE   COUNSEL    PROVIDED  INEFFECTIVE
          ASSISTANCE   BY   FAILING   TO  ARGUE   THAT
          DEFENDANT'S RIGHT TO A FAIR TRIAL WAS
          PREJUDICED BY THE STATE'S FAILURE TO NOTIFY
          DEFENDANT OF THE VICTIM'S HEARING IMPAIRMENT
          BEFORE HIS TESTIMONY.




                                7                          A-2379-16T2
                             POINT IV

          DEFENDANT'S   PETITION  FOR   PCR  IS   NOT
          PROCEDURALLY BARRED [RULE] 3:22-4 OR [RULE]
          3:22-5.

     We have considered these arguments in light of the record and

controlling law.    We affirm substantially for the reasons set

forth in the comprehensive, well-reasoned written opinion of Judge

Deitch.   We add only the following.

     We review the denial of a PCR petition without an evidentiary

hearing for abuse of discretion.   State v. Peoples, 
446 N.J. Super.
 245, 255 (App. Div. 2016) (citing State v. Preciose, 
129 N.J. 451,

462 (1992)).   Our review contains consideration of mixed questions

of law and fact.    State v. Harris, 
181 N.J. 391, 415-16 (2004).

We defer to a PCR court's factual findings and will uphold those

findings that are "supported by sufficient credible evidence in

the record."   State v. Nash, 
212 N.J. 518, 540 (2013).    However,

a PCR court's interpretations of law are provided no deference and

are reviewed de novo.   Id. at 540-41.

     The judge held that defendant's claims were barred per Rule

3:22-4 or Rule 3:22-5 as substantially similar to the issues

previously raised on appeal in State v. Carter, No. A-5147-11

(App. Div. July 15, 2014).   "[A] prior adjudication on the merits

ordinarily constitutes a procedural bar to the reassertion of the

same ground as a basis for post-conviction review."   Preciose, 129

                                   8                         A-2379-16T
2 N.J. at 476 (citing R. 3:22-12).             Additionally, a defendant is

precluded from raising an issue on PCR that could have been raised

on direct appeal.      State v. McQuaid, 
147 N.J. 464, 483 (1997).               As

explained by the Court in McQuaid:

                A defendant ordinarily must pursue relief
           by direct appeal, see R. 3:22-3, and may not
           use post-conviction relief to assert a new
           claim that could have been raised on direct
           appeal.    See R. 3:22-4.     Additionally, a
           defendant may not use a petition for post-
           conviction relief as an opportunity to
           relitigate a claim already decided on the
           merits. See R. 3:22-5.

           [Ibid.]

      The application of these standards requires the "[p]reclusion

of   consideration     of   an    argument   presented    in    post-conviction

relief proceedings . . . if the issue raised is identical or

substantially equivalent to that adjudicated previously on direct

appeal."     State v. Marshall, 
173 N.J. 343, 351 (2002) (quoting

State v. Marshall, 
148 N.J. 89, 150 (1997)).             A PCR claim is based

upon the "same ground" as a claim already raised by direct appeal

when "'the issue is identical or substantially equivalent' to

[the] issue previously adjudicated on its merits."                   McQuaid, 
147 N.J. at 484 (quoting Picard v. Connor, 
404 U.S. 270, 276-77

(1971)).     However, a procedural rule otherwise barring post-

conviction    relief    may      be   overlooked   to   avoid    a    fundamental

injustice where the deficient representation of counsel affected

                                         9                                A-2379-16T2
"a determination of guilt or otherwise wrought a miscarriage of

justice."   Nash, 
212 N.J. at 546 (quoting State v. Mitchell, 
126 N.J. 565, 587 (1992)).

      As the judge noted, defendant raised issues in his PCR

regarding   the   photo    array    and    defendant's   movements   in   the

courtroom that we addressed on direct appeal.             Carter, slip op.

at 13-14, 19-21.      As such, those claims are barred from our

consideration.    R. 3:22-5; McQuaid, 
147 N.J. at 484; Preciose, 
129 N.J. at 476.

     Although we discern no error in the judge's determination

that defendant's petition was procedurally barred, we briefly

discuss defendant's claims of ineffective assistance of appellate

counsel.

     Defendant    argues    he     received   ineffective   assistance      of

appellate counsel based on the failure of counsel to raise the

issues that: the witnesses' identification processes were unduly

suggestive, a witness's false identification violated his right

to a fair trial, and he should have been notified of a witness's

hearing problem.    In reaching his determination, the judge held

defendant failed to provide any facts in support of his argument

that appellate counsel's actions fell below an objective standard

of reasonable conduct.      Further, the judge held defendant failed

to provide any evidence of prejudice.            As such, the judge held

                                      10                             A-2379-16T2
defendant did not meet his burden to establish the first and second

prongs of Strickland/Fritz.3          We agree.

       "Post-conviction    relief      is    New   Jersey's   analogue       to   the

federal writ of habeas corpus."             Preciose, 
129 N.J. at 459.         Under

Rule    3:22-2(a),   a    criminal     defendant      is    entitled    to     post-

conviction relief if there was a "[s]ubstantial denial in the

conviction     proceedings       of     defendant's        rights      under      the

Constitution of the United States or the Constitution or laws of

the State of New Jersey[.]"            "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, 
129 N.J. at 459 (citations omitted).                "To sustain that

burden, specific facts" that "provide the court with an adequate

basis   on   which   to   rest   its    decision"      must    be   articulated.

Mitchell, 
126 N.J. at 579.

       Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.                See R. 3:22-4(a)(2);

Preciose, 
129 N.J. at 460.        In determining whether a defendant is

entitled to relief on the basis of ineffective assistance of

counsel, New Jersey courts apply the two-prong test articulated

by the United States Supreme Court in Strickland, 
466 U.S.  at 687,




3
   Strickland v. Washington, 
466 U.S. 668, 687 (1984); State v.
Fritz, 
105 N.J. 42 (1987).

                                       11                                    A-2379-16T2
and   United   States   v.   Cronic,    
466 U.S. 648,   658-60   (1984).

Preciose, 
129 N.J. at 463; see Fritz, 
105 N.J. at 49-50.

      Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."


466 U.S.  at 687.        Under the second prong, a defendant must

demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."    Id. at 694.

      Although defendant is entitled to the effective assistance

of    appellate   counsel,   "appellate       counsel   does   not   have    a

constitutional duty to raise every non[-]frivolous issue requested

by the defendant."      State v. Morrison, 
215 N.J. Super. 540, 549

(App. Div. 1987) (citing Jones v. Barnes, 
463 U.S. 745, 754

(1983)); see also State v. Gaither, 
396 N.J. Super. 508, 516 (App.

Div. 2007) (holding that appellate counsel is not "required to

advance every claim insisted upon by a client on appeal.").

      Upon consideration of the record, we conclude that defendant

has failed to demonstrate that appellate counsel's representation

"fell below an objective standard of reasonableness," Strickland,


466 U.S.  at 687-88, and that but for appellate counsel's failure

to raise that argument on direct appeal the outcome of his appeal

of his conviction would have been different.            State v. Allegro,


193 N.J. 352, 367 (2008).       Because defendant failed to establish

                                   12                                A-2379-16T2
both prongs of the Strickland standard, the PCR court properly

rejected     defendant's     claim      that   his   appellate    counsel    was

constitutionally ineffective.           See Strickland, 
466 U.S.  at 700.

      Finally, we reject defendant's argument that the court erred

in denying his petition without an evidentiary hearing.                       An

evidentiary hearing is required where the defendant has shown a

prima facie case and the facts on which he relies are not already

of record.      Pressler & Verniero, Current N.J. Court Rules, cmt. 2

on R. 3:22-10 (2018).        The mere raising of a claim for PCR does

not   entitle    defendant    to   an    evidentiary   hearing.      State    v.

Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999).              As defendant

failed to establish a prima facie case of ineffective assistance

of counsel, no evidentiary hearing was required.

      Affirmed.




                                        13                             A-2379-16T2