STATE OF NEW JERSEY v. FRANK SMITH

NOT FOR PUBLICATION WITHOUT THE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-3403-16T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

     v.

FRANK SMITH,

          Defendant-Appellant.
__________________________________

           Submitted May 15, 2018 – Decided May 24, 2018

           Before Judges Fisher and Natali.

           On appeal from Superior Court of New Jersey,
           Law Division, Bergen County, Indictment No.
           06-04-0818.

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

           Dennis Calo, Acting Bergen County Prosecutor,
           attorney for respondent (Justin Blasi, Special
           Deputy   Attorney   General/Acting   Assistant
           Prosecutor, of counsel and on the brief).

PER CURIAM

     In 2006, defendant was charged with fifteen counts of criminal

offenses, the most serious being first-degree robbery. By motion,
the judge severed the robbery count and another from the remaining

thirteen counts, and a jury later convicted defendant of those two

severed counts. Defendant then entered into a negotiated plea

agreement which resulted in his guilty plea to fourth-degree

obstruction of justice, third-degree receiving stolen property,

and     fourth-degree       receiving    stolen   property.         Defendant    was

sentenced to a life term, subject to an eighty-five percent period

of parole ineligibility, on the first-degree robbery conviction,

and lesser concurrent terms on the other convictions; the remaining

charges were dismissed.

      Defendant appealed. We affirmed his convictions but remanded

for resentencing, State v. Smith, No. A-2955-07 (App. Div. Oct.

22, 2013), and the Supreme Court denied defendant's petition for

certification, 
217 N.J. 588 (2014). In complying with our mandate,

the trial judge resentenced defendant and again imposed a life

sentence    on   the    first-degree         robbery     conviction.      Defendant

appealed again, and we affirmed. State v. Smith, No. A-0320-14

(App. Div. Feb. 10, 2015).

      On October 19, 2015, defendant filed a post-conviction relief

(PCR)    petition;     in   an    additional    August    2,   2016    submission,

defendant    amplified       on    his   PCR   petition.       By   way   of    both

submissions, defendant asserted that: (a) his trial attorney was

ineffective because of a "lack of diligence and failure to properly

                                         2                                  A-3403-16T2
investigate, call witnesses and prepare for the hearing, . . .

caus[ing] irreparable damage to [his] suppression hearing"; (b)

his trial attorney's "failure to object to the severance . . . put

defendant in a situation that was . . . extremely prejudicial";

(c)   his   trial    attorney      "was    ineffective         for   not    challenging

testimony    that    was    previously      sworn       to    in   [the]    suppression

[h]earing and contradicted at trial"; (d) appellate counsel was

"ineffective for failing to raise multiple points that would have

assisted the defendant in having his conviction reversed"; (e) his

trial attorney was ineffective "in failing to object to the

prosecutor's summation [that] repeatedly referenced [his] prior

convictions and in failing to object to the . . . repeated[]

referenc[es] [to his ten] prior convictions during . . . cross-

examination";       (f)    the    trial    court    granted        severance      without

"consent"    or     without      "notifying    [his]         attorney";     (g)   he    was

prejudiced by severance because "the jury was unable to hear [his]

codefendant[s'] confessions [to] the robbery" and he was "not part

of    the   robbery"      but    "simply    used    a    credit      card    that      [his

codefendants] stole"; (h) the search of his vehicle was without a

warrant and unlawful; (i) his trial attorney was ineffective for

"fail[ing] to object when the State showed the gun used in the

robbery to the jury"; and (j) "[a]side from the severance issue,



                                           3                                      A-3403-16T2
[his] appellate attorney . . . failed to raise these issues on

appeal." The PCR petition was denied.

     Defendant appeals, arguing, in a single point:

           THIS   MATTER   MUST   BE  REMANDED  FOR   AN
           EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
           ESTABLISHED A PRIMA FACIE CASE OF TRIAL
           COUNSEL'S INEFFECTIVENESS FOR FAILING TO
           INVESTIGATE AND SPEAK TO WITNESSES; IN THE
           ALTERNATIVE, THIS MATTER MUST BE REMAMDED FOR
           FINDING OF FACT AND CONCLUSIONS OF LAW
           (Partially Raised But Not Addressed Below).

We find insufficient merit in this argument to warrant discussion

in a written opinion, R. 2:11-3(e)(2), and we affirm substantially

for the reasons set forth by Judge Edward A. Jerejian in his

thorough and well-reasoned December 19, 2016 oral opinion. We add

only a few brief comments.

     In   his   appellate   submissions,   defendant   has    presented   a

dissertation on the applicable legal principles but he has not

presented a fact-based argument or any specified reason that would

require an evidentiary hearing. Defendant claims only that PCR

trial   counsel   "asserted   that   defendant's   'trial    attorney   was

ineffective for failing to investigate his case and speak with

witnesses,'" and the judge failed to address this contention. We

disagree. Judge Jerejian accurately observed that defendant failed

to present a prima facie case of ineffectiveness that would require

development or resolution at an evidentiary hearing; instead, as


                                     4                            A-3403-16T2
the judge correctly recognized, defendant presented only "b[a]ld

assertions."    Even   now,   defendant   argues   only   that    his     trial

attorney was ineffective in failing to "investigate" or "speak

with witnesses"; he has not asserted or even suggested what such

an investigation would reveal, and he has not identified the

witnesses with whom his trial counsel should have spoken. Judge

Jerejian properly rejected defendant's claimed entitlement to an

evidentiary hearing because defendant failed to specify trial

counsel's alleged omissions. See State v. Cummings, 
321 N.J. Super.
 154, 170 (App. Div. 1999) (holding that a PCR petitioner claiming

inadequate     investigation    "must     assert   the    facts    that        an

investigation would have revealed" and "do more than make bald

assertions" of ineffectiveness); see also State v. Porter, 
216 N.J. 343, 355 (2013).

     Affirmed.




                                    5                                   A-3403-16T2