STATEOF NEW JERSEY v. LUCIOUS THOMAS, a/k/a POODA LUCIOUS THOMAS, LUCIAS THOMAS and LUCUS THOMAS

NOT FOR PUBLICATION WITHOUT THE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-2885-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LUCIOUS THOMAS, a/k/a POODA
LUCIOUS THOMAS, LUCIAS THOMAS
and LUCUS THOMAS,

     Defendant-Appellant.
___________________________________

              Submitted February 15, 2018 – Decided            March 1, 2018

              Before Judges Haas and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              12-09-1630.

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

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

              Appellant filed a pro se supplemental brief.

PER CURIAM
     Defendant Lucious Thomas appeals from the February 1, 2017

Law Division order denying his petition for post-conviction relief

(PCR) without an evidentiary hearing.          We affirm.

     Following a trial at which defendant represented himself, a

jury convicted him of all the counts contained in an eight-count

indictment.     We incorporate herein the procedural history and

facts set forth in our prior opinion on defendant's direct appeal

in which we affirmed his conviction and sentence on the underlying

offenses.     State v. Thomas, No. A-3960-13 (App. Div. Aug. 24,

2015) (slip op. at 1-6).

     Defendant filed a timely petition for PCR.             He argued that

his standby counsel was ineffective because he failed to review

discovery with him prior to the trial.            Defendant also alleged

that his appellate attorney was ineffective because she did not

argue on appeal that the trial judge incorrectly denied defendant's

motion to reveal the identity of a confidential informant.

     In   a   thorough    written   opinion,    Judge    Patrick    J.   Arre

considered    each   of   these   contentions    and    denied   defendant's

petition.     The judge concluded that defendant failed to satisfy

the two-prong test of Strickland v. Washington, 
466 U.S. 668, 687,

(1984), which requires a showing that counsel's performance was

deficient and that, but for the deficient performance, the result

would have been different.

                                     2                               A-2885-16T3
     Taking defendant's contentions in turn, Judge Arre first

found that although defendant argued that his "trial counsel was

ineffective in failing to advise him of discovery materials, [he]

has failed to allege what would have potentially been revealed

from such material, which defenses could have been raised on his

behalf, and how this would have altered the outcome of his trial."

Therefore, the judge concluded that defendant did not establish

either prong of the Strickland test.

     Judge   Arre   also   rejected   defendant's   assertion   that   his

appellate attorney was ineffective because she did not challenge

the trial judge's denial of his pre-trial motion to disclose the

identity of a confidential informant.          Judge Arre found that

defendant did not demonstrate that this argument, if raised, would

have been successful.

     As the judge noted, N.J.R.E. 516 provides that an informant's

identity should be protected unless that information "has already

been otherwise disclosed or [] disclosure of his [or her] identity

is essential to assure a fair determination of the issues."

Because defendant did not establish that either of these conditions

were met, Judge Arre concluded that defendant's appellate attorney

properly declined to assert this issue on appeal.           This appeal

followed.



                                      3                          A-2885-16T3
    On appeal, defendant raises the same contentions that he

unsuccessfully presented to the trial court.   He asserts:

         POINT I

         THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
         PETITION FOR [PCR] 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 [PCR].

         B.   Trial Counsel Rendered Ineffective Legal
              Representation By Virtue Of His Failure
              To Review Discovery With Defendant.

         C.   Appellate Counsel Rendered Ineffective
              Legal Representation By Virtue Of Her
              Failure To Raise The Issue That The Trial
              Court Erroneously Denied Defendant's
              Motion To Reveal The Identity Of The
              Confidential Informant.

         D.   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   And
              Appellate Counsel.

    In addition, defendant raises the following issues in his pro

se supplemental brief:

         POINT I

         [DEFENDANT] HAS ESTABLISHED A PRIMA FACIE
         SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.



                               4                             A-2885-16T3
            POINT [II]

            THE   DEFENDANT   WAS  DEPRIVED   [SIC]   HIS
            CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE AND
            WAS DENIED THE EFFECTIVE ASSISTANCE OF
            COUNSEL.

       The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.        State v. Cummings, 
321 N.J.

Super. 154, 170 (App. Div. 1999).          Rather, trial courts should

grant evidentiary hearings and make a determination on the merits

only   if   the   defendant   has   presented   a   prima   facie   claim   of

ineffective assistance, material issues of disputed facts lie

outside the record, and resolution of the issues necessitates a

hearing. R. 3:22-10(b); State v. Porter, 
216 N.J. 343, 355 (2013).

We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion.           State v. Preciose,


129 N.J. 451, 462 (1992).

       To establish a prima facie claim of ineffective assistance

of counsel, the defendant

            must satisfy two prongs.      First, he must
            demonstrate that counsel made errors "so
            serious that counsel was not functioning as
            the 'counsel' guaranteed the defendant by the
            Sixth    Amendment."         An     attorney's
            representation is deficient when it "[falls]
            below     an     objective     standard     of
            reasonableness."

                 Second, a defendant "must show that the
            deficient    performance    prejudiced    the
            defense." A defendant will be prejudiced when

                                      5                              A-2885-16T3
            counsel's errors are sufficiently serious to
            deny him a "fair trial."        The prejudice
            standard is met if there is "a reasonable
            probability    that,   but    for   counsel's
            unprofessional errors, the result of the
            proceeding would have been different."      A
            "reasonable probability" simply means a
            "probability    sufficient     to   undermine
            confidence in the outcome" of the proceeding.

            [State v. O'Neil, 
219 N.J. 598, 611 (2014)
            (quoting Strickland, 
466 U.S.  at 687-88,
            694).]

     "[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that he was denied the

effective assistance of counsel.         He must allege facts sufficient

to   demonstrate   counsel's    alleged       substandard   performance."

Cummings, 
321 N.J. Super. at 170.         The defendant must establish,

by a preponderance of the credible evidence, that he is entitled

to the required relief.    State v. Nash, 
212 N.J. 518, 541 (2013).

     In addition, an appellate attorney is not ineffective for

failing to raise    every issue imaginable.        State v. Gaither, 
396 N.J. Super. 508, 515 (App. Div. 2007).        Instead, appellate counsel

is afforded the discretion to construct and present what he or she

deems are the most effective arguments in support of their client's

position.    Id. at 516.

     We have considered defendant's contentions in light of the

record and applicable legal principles and conclude they are

without   sufficient   merit   to   warrant    discussion   in   a   written

                                     6                               A-2885-16T3
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

Judge Arre expressed in his thoughtful written opinion. We discern

no abuse of discretion in the denial of defendant's PCR petition

without an evidentiary hearing, as defendant failed to present a

prima facie claim of ineffective assistance of counsel warranting

an evidentiary hearing.

     Affirmed.




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