STATE OF NEW JERSEY v. MARCELLUS BARNES

NOT FOR PUBLICATION WITHOUT THE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-0837-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARCELLUS BARNES,

     Defendant-Appellant.
_______________________

                   Submitted September 28, 2021 – Decided October 22, 2021

                   Before Judges Fisher and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 12-12-
                   2067.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Lori Linskey, Acting Monmouth County Prosecutor,
                   attorney for respondent (Carey J. Huff, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Marcellus Barnes appeals from an August 30, 2019 order

denying his petition for post-conviction relief (PCR). We affirm.

      Defendant was convicted by a jury of third-degree possession of a

controlled dangerous substance,  N.J.S.A. 2C:35-10(a)(1) and fourth-degree

hindering,  N.J.S.A. 2C:29-3(b). In addition, the judge found defendant guilty

of a disorderly persons charge of possession of marijuana. The court sentenced

defendant to an extended aggregate six-year term of imprisonment.

      We affirmed defendant's conviction on direct appeal. State v. Barnes, No.

A-4790-13 (App. Div. Feb. 23, 2016) (slip op. at 13). Defendant then filed a

PCR petition asserting multiple claims, including contentions that his trial

attorney coerced him into waiving his right to testify and failed to adequately

investigate and call favorable witnesses. He also asserted appellate counsel

failed to raise any ineffective assistance of trial counsel claims on direct appeal.

      In an oral opinion issued on August 30, 2019, the PCR judge rejected all

of defendant's PCR arguments. He noted that defendant elected not to testify at

trial. The judge stated: "Counsel confirmed defendant made this decision after

consulting with him and defendant confirmed this on the record." Therefore,

the record contradicted defendant's assertion that he was coerced into not

testifying.


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      In considering defendant's additional contentions, the PCR judge stated:

            [D]efendant does not assert how counsel could have
            better investigated the case and in fact, the record
            shows defendant did have an investigator working on
            the case. Additionally, defendant does not indicate
            which person should have been called to favorably
            testify for him or what they would have testified to.
            Defendant has not shown, therefore that trial counsel
            was deficient in this regard.

      The PCR judge also found appellate counsel was not ineffective because

"post conviction relief is the proper method to address ineffective assistance of

counsel claims."

      On appeal, defendant raises the following arguments:

            I. WHETHER THE PCR COURT SHOULD HAVE
            GRANTED DEFENDANT AN EVIDENTIARY
            HEARING FOR HIS PETITION FOR PCR BASED
            ON

            A. Counsel's failure to conduct firsthand investigation
            of the 1311 Washington Avenue apartment

            B. Counsel's failure to find other potential witnesses to
            testify during trial for the defense

            II. WHETHER DEFENDANT PRESENTED THE
            NECESSARY EVIDENCE OF TRIAL COUNSEL'S
            COERCION OF DEFENDANT NOT TO TESTIFY TO
            WARRANT AN EVIDENTIARY HEARING

            III. WHETHER           DEFENDANT          PRESENTED
            EVIDENCE  OF            APPELLATE          COUNSEL'S


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                                       3
              INEFFECTIVE ASSISTANCE OF COUNSEL TO
              WARRANT AN EVIDENTIARY HEARING

      We affirm for the reasons stated in the PCR judge's opinion, adding only

the following comments.       To establish a prima facie case of ineffective

assistance of counsel, a defendant must present legally competent evidence

rather than "bald assertions." See State v. Cummings,  321 N.J. Super. 154, 170

(App. Div. 1999). Defendant did not meet that standard here. He did not provide

certifications from any witnesses whom he claimed his attorney should have

interviewed. Nor did he describe how any other testimony from other witnesses

besides the two individuals who testified at trial, could have aided his defense.

      Similarly, defendant does not explain how an in-person visit by trial

counsel to the apartment where the drugs were found would have uncovered any

information that might have changed the outcome of the case.

      As the PCR judge found, the record reflects that defendant voluntarily

chose not to testify on his own behalf. Not only did defendant confirm to the

court that he did not intend to testify, but his counsel requested a break to speak

with defendant before confirming to the court that defendant would not be

testifying.

      In summary, defendant did not present a prima facie case of ineffective

assistance and was not entitled to an evidentiary hearing. See State v. Preciose,

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                                        4
 129 N.J. 451, 462 (1992) (holding that a court should grant an evidentiary

hearing "if a defendant has presented a prima facie claim in support of post -

conviction relief."). Any additional arguments not specifically addressed lack

sufficient merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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