STATE OF NEW JERSEY v. RAZEAR MULDROW

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5412-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAZEAR MULDROW,

     Defendant-Appellant.
___________________________

                    Submitted November 28, 2018 – Decided December 18, 2018

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 10-07-1361.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Janet A. Allegro, Designated Counsel, on the
                    briefs).

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Counsel, of counsel; Shiraz I. Deen,
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant appeals from a June 28, 2017 order denying his petition for

post-conviction relief (PCR). We affirm.

      Defendant was charged with first-degree conspiracy to commit murder,

 N.J.S.A. 2C:11-3(a) and  N.J.S.A. 2C:5-2; first-degree murder,  N.J.S.A. 2C:11-

3(a); first-degree attempted murder,  N.J.S.A. 2C:11-3(a) and  N.J.S.A. 2C:5-1;

second-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(1); second-degree

unlawful possession of a weapon,  N.J.S.A. 2C:39-5(b); second-degree

possession of a weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(a); first-

degree witness tampering,  N.J.S.A. 2C:28-5(a); first-degree attempted witness

tampering,  N.J.S.A. 2C:28-5(a); second-degree conspiracy to commit witness

tampering,  N.J.S.A. 2C:28-5(a) and 2C:5-2; and second-degree certain persons

not to have weapons,  N.J.S.A. 2C:39-7(b).

      The State moved pre-trial to admit evidence of defendant's gang affiliation

at trial.1 Defendant opposed the motion. The trial judge issued a comprehensive

written decision allowing evidence of defendant's gang membership to be

admitted at trial. Based on the trial judge's ruling, defendant pleaded guilty to




1
  We need not summarize the facts leading to defendant's conviction. The basis
for defendant's petition is PCR counsel's failure to advance all arguments on
defendant's behalf in the PCR brief and at the hearing.
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one count of first-degree conspiracy to commit murder. On the plea form,

defendant did not reserve the right to appeal the judge's gang evidence ruling

      Defendant was sentenced to seventeen years in prison subject to an 85%

period of parole ineligibility pursuant to the No Early Release Act (NERA),

 N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision upon release.

Defendant's sentence was affirmed at a Sentence Only Argument (SOA)

calendar.

      On April 8, 2016, defendant filed a pro se petition for PCR. Defendant's

assigned counsel filed a supplemental brief in support of defendant's petition,

asserting defendant's trial counsel improperly informed defendant that evidence

of his gang affiliation would be admissible at trial. The State submitted a brief

in opposition to defendant's PCR petition, which included a copy of the trial

court's twenty-six page decision, allowing evidence of defendant's gang

membership at trial.

      The PCR judge heard argument on June 28, 2017. Knowing evidence of

defendant's gang membership was deemed admissible by the trial judge and not

a misstatement of the law by trial counsel, PCR counsel told the judge he had

no additional arguments and relied on the argument advanced in his PCR brief.

The judge denied the PCR petition, concluding defendant's argument was


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procedurally barred in accordance with Rule 3:22-4(a) as the issue related to a

trial error that could have been raised on direct appeal. The judge also rejected

defendant's argument that he would not have pleaded guilty absent his trial

counsel improperly advising him that evidence of his gang affiliation would be

admissible at trial. The judge concluded defendant's trial counsel gave correct

legal advice supported by the trial judge's ruling on the admissibility of

defendant's gang membership. The judge found defendant failed to satisfy the

two-prong test for ineffective assistance of counsel established in Strickland v.

Washington,  466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz,  105 N.J. 42, 58 (1987).

      On appeal, defendant argues:

            SINCE THE DEFENDANT FAILED TO RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            POST-CONVICTION RELIEF COUNSEL, THE
            MATTER SHOULD BE REMANDED TO THE
            TRIAL COURT TO ASSIGN NEW POST-
            CONVICTION RELIEF COUNSEL TO REPRESENT
            HIM,   TO   PERMIT     THE      FILING OF
            SUPPLEMENTAL    SUBMISSIONS        ON  HIS
            BEHALF, AND TO CONDUCT A NEW HEARING
            RELATING THERETO (Not raised below).

      Defendant claims his PCR counsel was ineffective because counsel raised

only one argument in the PCR petition and was unaware the argument had been

rejected by the trial judge. Defendant also contends that once PCR counsel

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realized the trial court allowed evidence of defendant's gang affiliation, PCR

counsel failed to raise other arguments in support of the PCR application.

Defendant argues PCR counsel's representation was utterly lacking, constituting

no representation at all.

      This appeal requires our review of two separate standards. One standard

governs a claim of ineffective assistance as to trial counsel. The other standard

governs a claim of ineffective PCR counsel.

      To establish a prima facie claim of ineffective assistance of trial counsel, a

defendant must satisfy the two-part test enunciated in Strickland by demonstrating

that: (1) counsel's performance was deficient, and (2) the deficient performance

actually prejudiced the accused's defense. Strickland,  466 U.S.  at 687; see also Fritz,

 105 N.J. at 58.

      The performance of PCR counsel is examined under a different standard

than the standard applicable to review of trial counsel's performance. With

respect to a claim of ineffective PCR counsel, the Supreme Court has held:

             PCR counsel must communicate with the client,
             investigate the claims urged by the client, and
             determine whether there are additional claims that
             should be brought forward. Thereafter, counsel should
             advance all of the legitimate arguments that the record
             will support.     If after investigation counsel can
             formulate no fair legal argument in support of a


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            particular claim raised by defendant, no argument need
            be made on that point.

            [State v. Webster,  187 N.J. 254, 257 (2006).]

      The relief afforded to a defendant based on ineffective PCR counsel is a

new PCR hearing. See State v. Hicks,  411 N.J. Super. 370, 376 (App. Div.

2010). In Hicks, we noted, "relief is not predicated upon a finding of ineffective

assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d)

imposes an independent standard of professional conduct upon an attorney

representing a defendant in a PCR proceeding."         Ibid. (citations omitted).

Whether PCR counsel met the obligations under Rule 3:22-6(d) is distinct from

a claim of ineffective assistance of counsel under Strickland. Ibid.

      Here, PCR counsel filed a brief raising the argument insisted upon by

defendant in accordance with Rule 3:22-6(d). "[A]s in any case in which a brief

is filed, [PCR] counsel may choose to stand on it at the hearing, and is not

required to further engage in expository argument." Webster,  187 N.J. at 257.

As the Court noted in State v. Rue,  175 N.J. 1, 19 (2002), "[i]n some cases, the

record will give PCR counsel a wealth of grist for his or her mill, in some cases,

not." It is the obligation of PCR counsel to "advance all of the legitimate

arguments that the record will support." Webster,  187 N.J. at 257.



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      Defendant argues his PCR counsel failed to comply with his obligations

under Rule 3:22-6(d) by raising additional arguments in the PCR brief, entitling

defendant to new counsel and a new PCR hearing. Defendant provides no

evidence that PCR counsel failed to discharge his responsibilities under Rule

3:22-6(d). Defendant provided no certification describing his interactions with

PCR counsel, whether PCR counsel met with defendant to discuss the case, and

the information or suggestions defendant provided to his PCR counsel.

Although defendant argues his PCR counsel's performance was deficient, he

fails to identify a single meritorious claim supporting his PCR petition that PCR

counsel should have advanced to the PCR court.

      There is no proffer demonstrating PCR counsel could have fashioned more

effective arguments than the argument he presented in the PCR brief. Nor does

defendant identify any specific arguments he believes should have been made

or advanced by his PCR counsel.        On this record, PCR counsel was not

ineffective.

      Affirmed.




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