STATE OF NEW JERSEY v. ROMULO GREGORIO

NOT FOR PUBLICATION WITHOUT THE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-3690-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROMULO GREGORIO,

     Defendant-Appellant.
_______________________________

              Submitted February 28, 2018 – Decided March 19, 2018

              Before Judges Fuentes and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              10-02-0334.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Stephanie Davis
              Elson, Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant    Romulo    Gregorio    appeals    from    a   denial   of      his

petition for post-conviction relief (PCR) without an evidentiary

hearing.      We affirm.
     On September 1, 2009, Jersey City firefighters found the body

of Christine Mariano laid out on a bed in a room that had been

intentionally set on fire.         The victim was the twenty-two-year-

old daughter of Clarissa Mariano, who had been dating defendant

and had recently ended their relationship.            The police quickly

developed defendant as a suspect because of his numerous unwanted

text messages to and threats against Clarissa Mariano and his

presence at the scene of the fire.          He was arrested the same day.

     Defendant was tried before a jury and convicted of first-

degree murder, 
N.J.S.A. 2C:11-3(a)(1) and 
N.J.S.A. 2C:11-3(a)(2)

(count   one);    second-degree    aggravated     arson,    
N.J.S.A.    2C:17-

1(a)(2) (count two); fourth-degree stalking, 
N.J.S.A. 2C:12-10(b)

(count three); and third-degree terroristic threats, 
N.J.S.A.

2C:12-3(a) (count four).          At sentencing in April 2012, upon

weighing   the    aggravating     and   mitigating   factors,    the     court

determined that the aggravating factor outweighed the mitigating

factor in the circumstances of this case and sentenced defendant

as to count one to a fifty-year term of imprisonment with an

eighty-five percent period of parole ineligibility and five years

of parole supervision pursuant to the No Early Release Act,


N.J.S.A. 2C:43-.7.2 (NERA).          On the other three counts of the

conviction,      the   court    imposed     the   maximum     prison     terms

permissible, but all the sentences to run concurrently with the

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murder conviction.     All statutorily required terms of parole

supervision after release from prison and monetary penalties were

also imposed.

      Defendant filed a notice of appeal from his conviction by a

jury in June 2012.    In an unpublished opinion, State v. Gregorio,

No. A-5383-11 (App. Div. Apr. 2015), we affirmed the conviction.

The Supreme Court denied the petition for certification, State v.

Gregorio, 
223 N.J. 556 (2015).      In January 2016, through counsel,

defendant filed a petition for PCR.           Following argument that

addressed all of the issues raised by defendant and the PCR

counsel, the PCR judge issued a decision on March 9, 2017, denying

the   petition   without   an   evidentiary   hearing.1   This    appeal

followed.

      Defendant raises the following points on appeal:

            POINT I

            THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S   PETITION  FOR   [PCR]   WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY
            ADDRESS HIS CONTENTION THAT HE FAILED TO
            RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE
            TRIAL LEVEL.

                 A. THE PREVAILING LEGAL PRINCIPLES
                 REGARDING CLAIMS OF INEFFECTIVE
                 ASSISTANCE OF COUNSEL, EVIDENTIARY
                 HEARINGS AND PETITIONS FOR [PCR].


1
  Defendant's brief notes that he filed an amended petition for
PCR on October 20, 2016.

                                    3                            A-3690-16T4
                  B.   TRIAL COUNSEL DID NOT PROVIDE
                  ADEQUATE LEGAL REPRESENTATION TO
                  THE DEFENDANT AS A RESULT OF
                  COUNSEL'S FAILURE TO CALL SEVERAL
                  POTENTIAL   DEFENSE  WITNESSES  AT
                  TRIAL.

                  C. TRIAL COUNSEL DID NOT ADEQUATELY
                  REPRESENT THE DEFENDANT AS A RESULT
                  OF HIS FAILURE TO OBJECT TO HEARSAY
                  TESTIMONY ELICITED BY THE STATE FROM
                  CHRISTOPHER MARIANO, AND FURTHER
                  ERRED   BY   ELICITING    ADDITIONAL
                  PREJUDICIAL AND DAMAGING TESTIMONY
                  DURING CROSS-EXAMINATION.

                  D. TRIAL COUNSEL DID NOT ADEQUATELY
                  REPRESNET THE DEFENDANT AS A RESULT
                  OF HIS FAILURE TO UTILIZE THE PHONE
                  RECORDS OF THE VICTIM TO ATTACK THE
                  CREDIBILITY OF BRANDON BIGHAM.

      We   have   closely    examined         the    record     in   light    of   the

contentions posed in this appeal.               Our examination included the

considerable amount of evidence, unrelated to the grounds upon

which the PCR petition was based, that supported defendant's

conviction.       Upon   conclusion    of      that     examination,     we    affirm

substantially for the reasons set forth in the decision of the PCR

judge who was also the trial judge.                 We add only the following.

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

federal writ of habeas corpus."            State v. Preciose, 
129 N.J. 451,

459 (1992). 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

                                          4                                   A-3690-16T4
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.      State

v. Mitchell, 
126 N.J. 565, 579 (1992).

     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 v. Washington,


466 U.S. 668, 687 (1984), and United States v. Cronic, 
466 U.S. 648, 658-60 (1984). Preciose, 
129 N.J. at 463; see State v. Fritz,


105 N.J. 42, 49-50 (1987).

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

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

Strickland, 
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.



                                   5                         A-3690-16T4
     Defendant argues that his trial counsel was ineffective for

failing to interview and to call three citizen witnesses.         The

witnesses were interviewed and provided statements to the police.

Two witnesses stated that they observed individuals outside of the

residence on the date of the murder.    One witness stated that he

thought he observed the victim on the balcony of the residence

smoking a cigarette.   As the PCR judge held, as we agree, none of

these witnesses provided exculpatory information.

     Defendant also argues that his counsel was ineffective for

eliciting damaging testimony during cross-examination from the

victim's brother.   In his testimony, the brother expressed his

personal animus toward defendant.    Again, the PCR judge held, and

we agree, that the brother's isolated comments about his personal

feelings about defendant did not influence the outcome of the

trial.

     As well, defendant's argument that the failure to use the

victim's cell phone records to challenge the credibility of her

boyfriend and inculpate him in her death is unavailing.      As the

State commented in its brief, "there is not one scintilla of

evidence supporting" that claim.     From our review of the trial

record, we are in accord with the State's comment.

     Notwithstanding   our   determination   regarding   defendant's

failure to establish that counsel's performance was deficient, we

                                 6                           A-3690-16T4
briefly address the second Strickland prong.              Upon consideration

of the record, we conclude that defendant has also failed to

demonstrate how any alleged deficiency resulted in a prejudice

that, "but for counsel's unprofessional errors, the result of the

proceeding would have been different."             Strickland, 
466 U.S.  at
 694; Fritz, 
105 N.J. at 52 (citation omitted).

       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.

       We conclude our analysis by repeating those precepts that

guide reviewing courts in determining "ineffective assistance of

counsel" claims.       Effective representation is not synonymous with

errorless representation.          An attorney may make tactical decisions

that in the lens of hindsight were debatable or even erroneous.

For any error by counsel to be constitutionally significant, it

must    undermine     the   fundamental      fairness   of   the   proceeding.

                                         7                             A-3690-16T4
Strickland, 
466 U.S.  at 693.      The competency standard enunciated

by Strickland is both broad and flexible.       Ibid.      It is intended

to encompass varied factual scenarios and circumstances.                The

proper test is whether counsel's performance was within the range

of competence required of attorneys in criminal cases.               While

attorneys   are   expected   to   fulfill   their   duty    of   competent

representation, a conviction should not be overturned unless there

was a breach of that duty that mattered.       To the extent, if any,

trial counsel's performance was deficient, we hold that it did not

result in prejudice to the defense since there is not a reasonable

probability of a different result sufficient to undermine our

confidence in the outcome.    See State v. Arthur, 
184 N.J. 307, 319

(2005) (quoting Strickland, 
466 U.S. at 693).

     Affirmed.




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