STATE OF NEW JERSEY v. JOHN WHITE

NOT FOR PUBLICATION WITHOUT THE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-0188-19T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN WHITE,

     Defendant-Appellant.
_______________________

                   Submitted January 4, 2021 – Decided January 20, 2021

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 12-12-
                   1811.

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

                   Yolanda Ciccone, Middlesex County Prosecutor,
                   attorney for respondent (Nancy A. Hulett, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant John White appeals from a July 22, 2019 order denying his

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

affirm.

      We incorporate the facts from our opinion in State v. White, No. A-5421-

15 (App. Div. March 22, 2018) (White I). In White I, defendant appealed his

convictions for weapons and drug charges, raising the following arguments for

the first time on appeal: "the prosecutor posed a hypothetical question designed

to elicit an opinion that defendant possessed drugs with the intent to distribute";

the State's expert improperly testified on the ultimate issue thereby invading the

jury's factfinding role; the State's fact evidence was improperly bolstered by its

expert witness; "the prosecutor committed misconduct in vouching for the

credibility of a witness"; the State failed to provide a proper foundation for the

text message from defendant to a co-defendant; the trial court erred in admitting

co-defendant's testimony regarding the text message; the trial court failed to

provide a limiting instruction to the jury related to the text message; and the trial




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court erred in failing to instruct the jury using the model jury charge concerning

statements of defendant.  1 White I at 5-6.

      Because each of defendant's contentions in White I were raised for the

first time on appeal, we reviewed his arguments for plain error in accordance

with Rule 2:10-2. Id. at 6. In White I, we affirmed the convictions, finding

defendant failed to show plain error as to any of the substantive issues raised on

appeal. Id. at 14. The New Jersey Supreme Court denied defendant's petition

for certification and motion for summary disposition. State v. White,  233 N.J.
 608 (2018).

      In September 2018, defendant filed a pro se PCR petition. After being

assigned counsel, defendant filed an amended petition,2 asserting his trial

attorney "failed to object to the prosecutor's summation, failed to request a

hearing to determine the admissibility of various alleged statements and failed

to request a jury charge" regarding defendant's alleged statements. In addition,




1
   Defendant also appealed the five-year sentence imposed for possession of
narcotics with intent to distribute within 1000 feet of school property. We
remanded the matter for the judge to apply the correct sentence of three years
for that offense. White I at 14.
2
  Defendant's amended PCR petition incorporated the arguments set forth in his
pro se petition.
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he argued trial counsel "should have been more prepared at trial and failed to

recognize the importance of these objections during trial."

       The PCR judge heard argument on July 22, 2019. The judge rendered an

oral decision, concluding defendant's PCR issues were raised and adjudicated

on the merits in his direct appeal. Based on White I, the PCR judge determined

any inappropriate comments regarding the credibility of a testifying co -

defendant made by the prosecution during summation "were not so egregious

that it deprived defendant of a fair trial" and found "[t]here was sufficient

evidence in the record for the jury to ultimately decide the defendant owned a

gun." In rejecting defendant's argument related to the failure to provide a

Hampton3 charge, relying on White I, the PCR judge found the jury instructions

"were sufficient because they still captured the same information that a Hampton

charge would have conveyed." Having determined the issues in defendant's PCR

petition were "clearly addressed by the Appellate Division under [Rule] 3:22-

5," the judge held defendant's PCR "application [was] procedurally barred from

adjudication or resolution at a hearing."

       On appeal from denial of his PCR petition, defendant raises the following

arguments:


3
    State v. Hampton,  61 N.J. 250 (1972).
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                                        4
      POINT I

            DEFENDANT'S    PETITION    FOR    POST
            CONVICTION RELIEF SHOULD NOT BE BARRED
            BECAUSE DEFENDANT'S CLAIMS WERE NOT
            EXPRESSLY ADJUDICATED BY THE APPELLATE
            DIVISION.

      POINT II

            DEFENDANT    WAS     DENIED  EFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL FOR
            COUNSEL'S FAILURE TO OBJECT TO THE
            PROSECUTOR'S PREJUDICIAL STATEMENTS
            DURING    CLOSING     WHICH  UNFAIRLY
            BOLSTERED THE TESTIMONY OF A STATE'S
            WITNESS AND FOR FAILURE TO REQUEST A
            HAMPTON CHARGE RELATED TO HIS ALLEGED
            ADMISSIONS TO A THIRD PARTY.

            (a) APPLICABLE LAW.

            (b) COUNSEL WAS INEFFECTIVE FOR FAILING
            TO OBJECT TO THE PROSECUTOR'S REMARKS
            DURING CLOSING WHICH PREJUDICED THE
            DEFENDANT BY UNFAIRLY BOLSTERING THE
            CREDIBILITY OF A WITNESS AGAINST HIM.

            (c) COUNSEL WAS INEFFECTIVE FOR FAILING
            TO REQUEST A JURY CHARGE ON THE
            WEIGHING OF CREDIBILITY OF A WITNESS'S
            TESTIMONY REGARDING ADMISSION MADE BY
            DEFENDANT.

      On this record, we are satisfied the PCR judge properly determined

defendant's arguments were procedurally barred. In addition, even if defendant's

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PCR arguments were not procedurally barred, defendant failed to make a prima

facie showing in support of his ineffective assistance of counsel claim.

        If an issue has previously been raised and decided, the "prior adjudication

upon the merits . . . is conclusive whether made in the proceedings resulting in

the conviction . . . or in any appeal taken from such proceedings." R. 3:22-5.

In determining whether this procedural bar applies, the challenged claim should

be compared with the prior claim to determine if the two "are either identical or

substantially equivalent." State v. Marshall,  173 N.J. 343, 351 (2002). "If the

claims are substantially the same, the petition is procedurally barred; if not, the

claim of error should be adjudicated when there is no other reason to bar it."

Ibid.

        An issue decided on direct appeal may not be considered in a PCR

proceeding. State v. Preciose,  129 N.J. 451, 476 (1992). Defendant argues his

direct appeal did not address the same claims as his PCR petition. The issues

asserted in defendant's petition for PCR, however, implicate the same

substantive claims of error that defendant raised, and we rejected, in White I.

        Although defendant reframes his argument in terms of ineffective

assistance of counsel, the PCR arguments substantively concerns the same issues

raised in White I.      Specifically, defendant rehashes the same arguments


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regarding the prosecutor's comments during summation, text messages sent by

defendant, and the absence of a Hampton charge. PCR is not "an opportunity to

relitigate matters already decided on the merits . . . ." State v. Afanador,  151 N.J. 41, 50 (1997) (citing Preciose,  129 N.J. at 459).

      Even if defendant's claims were not procedurally barred, he failed to

establish a prima facie case of ineffective assistance of counsel under the

Strickland/Fritz analysis.4 To establish an ineffective assistance of counsel

claim, a defendant must demonstrate: (1) counsel's performance was deficient,

and (2) the deficient performance prejudiced the defense. Strickland,  466 U.S. 
at 687; see also Fritz,  105 N.J. at 58 (adopting the Strickland two-part test in

New Jersey).

      Here, based on our decision in White I, defendant is unable to demonstrate

defense counsel's performance was so deficient as to constitute ineffective

assistance of counsel. In addition, as a result of our affirmance of defendant's

conviction in White I, defendant is unable to establish defense counsel's alleged

deficiencies deprived him of a fair trial or that the outcome of the trial would

have differed if counsel raised certain arguments.



4
  Strickland v. Washington,  466 U.S. 668, 687 (1984) and State v. Fritz,  105 N.J. 42, 58 (1987).
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      The remainder of defendant's arguments lack sufficient merit to warrant

further discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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