STATE OF NEW JERSEY v. IBRAHIM S. DAO,

NOT FOR PUBLICATION WITHOUT THE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-3935-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

IBRAHIM S. DAO, a/k/a
ACE S. DAO,

     Defendant-Appellant.
_________________________

                    Submitted October 16, 2019 – Decided November 22, 2019

                    Before Judges Yannotti and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-06-1877.

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

                    Jill S. Mayer, Acting Camden County Prosecutor,
                    attorney for respondent (Natalie A. Schmid
                    Drummond, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Ibrahim Dao appeals from an order, entered by the Law

Division on August 23, 2017, denying his petition for post-conviction relief

(PCR) without an evidentiary hearing. We affirm.

                                      I

      We begin with a summary of the relevant facts established at defendant's

trial, as set forth in our opinion on direct appeal. State v. Dao, No. A-0166-14

(App. Div. Nov. 2, 2016). The Supreme Court denied defendant's petition for

certification. State v. Dao,  228 N.J. 491 (2017).

      On the evening of February 24, 2013, Gloucester Township

            police officers were dispatched to a residence for a
            domestic dispute. Although Corporal James Kaelin
            was not assigned to the call, he testified that he
            responded to the call since he was in the area and there
            was a 'flag file for that residence.' Kaelin was the first
            officer to arrive at the home. He described for the jury
            the altercation he and the other officers had with
            defendant, who resisted their efforts to subdue and
            arrest him, and the injuries that he and the other officers
            sustained during the skirmish.

            [Dao, slip op. at 2]

      In addition, the other three responding officers also testified, describing

the incident and the injuries they sustained. Defendant testified in his own

defense, and claimed the police officers assaulted him for no reason whatsoever.

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He claimed that on the evening in question, he decided to go to the hospital

because he "was having shoulder pain," stemming from a previous truck

accident. He "dialed 911 and asked for an ambulance to come to [his] address."

Defendant's trial counsel declined to call defendant's girlfriend at the time, K.H.,

who was present for the entire encounter. 1

        Following the incident, K.H. gave a statement to the officers still on scene.

She said defendant started "bugging" and accused her of "being sneaky." She

continued, defendant then "called the cops or whatever and the ambulance so they

could check me out for being sneaky. I'm not being myself." Regarding Corporal

Kaelin's initial contact with defendant, K.H. stated "they tried to um … arrest him[]

[b]ut he started tussling." She also recalled the officers were "trying to . . . put the

cuffs on him and stuff but he kept turning."

        In June 2013, a Camden County grand jury returned indictment No. 1877-

06-13, charging defendant with four counts of third-degree aggravated assault

on a police officer, contrary to  N.J.S.A. 2C:12-1b(5)(a) (counts one through

four), and third-degree resisting arrest, contrary to  N.J.S.A. 2C:29-2a(3) (count

five). On January 29, 2014, at the conclusion of a two-day trial, the jury returned

a verdict finding defendant guilty on all counts. The trial court sentenced


1
    We refer to K.H. by her initials to preserve her privacy.
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defendant to an aggregate prison term of five years, with a parole ineligibility

period of two and one-half years.

      On May 25, 2017, defendant filed the petition for PCR under review. In

his petition, defendant alleged his trial counsel provided ineffective assistance

when he chose not to call K.H. as a witness and failed to enter the 911 transcripts

into evidence.

      Following oral argument, Judge John T. Kelley denied defendant's petition

without an evidentiary hearing, after setting forth his reasons in a comprehensive

oral opinion. As to trial counsel's alleged deficiency in failing to call K.H., the judge

found defendant failed to establish a prima facie case of ineffective assistance. He

found that K.H.'s recorded statements contradicted defendant's trial testimony and,

therefore, trial counsel strategically chose not to call her as a witness. The judge

also found K.H.'s prior convictions presented credibility issues, which likely

factored into trial counsel's decision not to call her as a witness. Applying the

applicable law to his findings, the judge concluded defendant failed to establish a

prima facie case of ineffective assistance, as defendant's petition failed to

demonstrate that his trial counsel provided deficient performance or that an injustice

resulted.




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      This appeal followed with defendant presenting the following point of

argument:

      POINT I

            THE PCR COURT ERRED IN DENYING THE PCR
            PETITION    WITHOUT     HOLDING     AN
            EVIDENTIARY    HEARING   BECAUSE    ITS
            FACTUAL DETERMINATIONS THAT THE KEY
            DEFENSE WITNESS'S PRIOR STATEMENT
            WOULD HAVE BEEN INCONSISTENT WITH HER
            POTENTIAL TRIAL TESTIMONY WAS SIMPLY
            WRONG, AND IT INCORRECTLY DETERMINED,
            WITHOUT THE BENEFIT OF TESTIMONY, THAT
            THIS WITNESS WAS NOT CREDIBLE.

Defendant also filed a pro se supplemental "Reply Brief," in which he argues he

should have been granted an evidentiary hearing on his petition.

      Following our review of these arguments, in light of the record and applicable

law, we affirm.

                                     II

      "A petitioner must establish the right to [post-conviction] relief by a

preponderance of the credible evidence." State v. Preciose,  129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth specific facts that

"provide the court with an adequate basis on which to rest its decision." State

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



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      A defendant must prove two elements to establish a PCR claim that trial

counsel was constitutionally ineffective: first, that "counsel's performance was

deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment[;]" second, that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington,  466 U.S. 688, 694 (1984); accord State v.

Fritz,  105 N.J. 42, 58 (1987).      "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." State v. Harris,  181 N.J.
 391, 432 (2004) (quoting Strickland,  466 U.S. at 694).

      To prove the first element, a defendant must "overcome a strong

presumption that counsel exercised reasonable professional judgment and sound

trial strategy in fulfilling his responsibilities." State v. Nash,  212 N.J. 518, 542

(2013) (internal quotation marks omitted) (quoting State v. Hess,  207 N.J. 123,

147 (2011)). To prove the second element, a defendant must demonstra te "how

specific errors of counsel undermined the reliability of the finding of guilt."

United States v. Cronic,  466 U.S. 648, 659 n.26 (1984)

      The record supports Judge Kelley's determination that defendant failed to

present a prima facie case of ineffective assistance of counsel. Considering that


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K.H.'s recorded statements contradicted defendant's trial testimony and that her

prior convictions presented credibility issues, trial counsel's decision not to call

K.H. as a witness was a reasonable strategic decision. Moreover, defendant was

not prejudiced by counsel's decision. As the judge noted, K.H.'s testimony could

have hurt, rather than helped, the defense.

      Defendant further argues Judge Kelley abused his discretion by denying

an evidentiary hearing, asserting the existence of genuine issues of material fact.

PCR courts are not required to conduct evidentiary hearings unless the defendant

establishes a prima facie case and "there are material issues of disputed fact that

cannot be resolved by reference to the existing record." R. 3:22-10(b). "To

establish such a prima facie case, the defendant must demonstrate a reasonable

likelihood that his or her claim will ultimately succeed on the merits." State v.

Marshall,  148 N.J. 89, 158 (1997) (alteration in original). Speculative assertions

are insufficient to establish a prima facie case of ineffective assistance of

counsel. State v. Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999).

      The record amply supports Judge Kelley's findings and conclusions.

Defendant has not shown "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland,  466 U.S.  at 694. He did not demonstrate the required prejudice. Having


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failed to establish a prima facie case on both prongs of Strickland, defendant was

not entitled to an evidentiary hearing. Preciose,  129 N.J. at 462. Accordingly, we

discern no abuse of discretion in the denial of an evidentiary hearing.

      To the extent we have not addressed any arguments raised by defendant, we

have deemed such arguments lacking in sufficient merit to warrant comment in a

written opinion. R. 2:11-3(e)(2).

      Affirmed.




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