STATE OF NEW JERSEY v. TERENCE OUSLEY

NOT FOR PUBLICATION WITHOUT THE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-3622-19
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TERENCE OUSLEY,

     Defendant-Appellant.
_______________________

                   Submitted November 9, 2021 – Decided November 19, 2021

                   Before Judges Haas and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 17-02-0208.

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

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

PER CURIAM
      Defendant Terence Ousley appeals from the Law Division's December 6,

2019 order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      An Ocean County grand jury indicted defendant for first-degree armed

robbery, second-degree burglary, and second-degree aggravated assault.

Defendant subsequently pled guilty to an amended charge of second-degree

conspiracy to commit armed robbery, and the trial court sentenced him to ten

years in prison, subject to the No Early Release Act,  N.J.S.A. 2C:43-7.2, and a

three-year term of parole supervision upon release.

      On direct appeal, defendant challenged the sentence, and we considered

the matter on our Excessive Sentence Oral Argument calendar pursuant to Rule

2:9-11. In an April 11, 2018 order, we affirmed defendant's sentence, and the

Supreme Court denied certification. State v. Ousley,  235 N.J. 186 (2018).

      Shortly thereafter, defendant filed a timely PCR petition arguing that his

trial counsel provided ineffective assistance. Defendant's assigned PCR counsel

submitted a brief on defendant's behalf and argued that the trial attorney: (1)

failed to argue at sentencing that the trial court was incorrectly "double

counting" the aggravating factors; and (2) neglected "to file several motions




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prior to [defendant's] plea challenging the identification made by one of the

witnesses."

       In further support of the petition, defendant filed a one-page

"supplemental brief" in which he argued that his trial attorney should have

requested a Wade1 hearing. In his submission, defendant asserted he had seen a

DVD of the victim's interview with the police and believed it cast doubt on her

credibility. Defendant further alleged that a police officer gave inaccurate

information about the victim's statement to the grand jury.

       Following oral argument, 2 the PCR judge rendered a written decision 3

denying defendant's PCR petition. The judge found that defendant's arguments

about his sentence were raised and rejected on direct appeal, and were

procedurally barred by Rule 3:22-4. The judge further ruled that defendant was

not entitled to a Wade hearing because he failed to "specify any potentially

meritorious challenges to the identification he could have raised."

       For the first time on appeal, defendant argues:


1
    United States v. Wade,  388 U.S. 218 (1967).
2
   In addition to hearing from defendant's attorney, the trial court permitted
defendant to participate on his own behalf at oral argument.
3
   In its decision, the court stated it had considered defendant's supplemental
brief.
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            THIS MATTER MUST BE REMANDED FOR THE
            APPOINTMENT OF NEW PCR COUNSEL AS
            SUPPORT WAS NOT PROVIDED FOR ANY OF
            THE ARGUMENTS RAISED BY [DEFENDANT] IN
            HIS SUPPLEMENTAL BRIEF REGARDING THE
            IDENTIFICATIONS MADE BY [THE VICTIM], OR
            THE CONTRADICTORY TESTIMONY OF A
            POLICE OFFICER AT THE GRAND JURY,
            LEAVING THE PCR COURT UNABLE TO
            PROPERLY    ADDRESS    TRIAL  COUNSEL'S
            FAILURE TO FILE A WADE MOTION. (Not Raised
            Below).

      Defendant has not supported his newly-minted allegations against his PCR

attorney with a sworn statement "alleg[ing] facts sufficient to demonstrate

counsel's alleged substandard performance." See, e.g., State v. Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999).          Nor has defendant specifically

challenged the PCR judge's findings, and his sole argument on appeal does not

even implicate trial counsel's performance.

      Instead, defendant seeks a remand for a new PCR proceeding "so that

[defendant] has a first opportunity to raise his arguments, provide supporting

evidence, and provide the court with [the victim's] DVD statement and the

transcript of the grand jury." For the following reasons, we decline to order such

a remand.

      Rule 3:22-6(d) requires PCR counsel to "advance all of the legitimate

arguments requested by the defendant that the record will support," and "[i]f

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[the] defendant insists upon the assertion of any grounds for relief that counsel

deems to be without merit," then PCR counsel must "list such claims in the

petition . . . or incorporate them by reference." The Rule requires PCR counsel

to "communicate with his client," "investigate the claims," and "then . . . 'fashion

the most effective arguments possible.'" State v. Hicks,  411 N.J. Super. 370,

375 (App. Div. 2010) (quoting State v. Rue,  175 N.J. 1, 18 (2002)). If PCR

counsel fails to meet Rule 3:22-6(d)'s requirements, the remedy is a new PCR

proceeding. Id. at 376. Such a new proceeding is predicated solely on the Rule,

not on ineffective assistance of counsel. Ibid.

      However, we cannot conclude on this record that PCR counsel violated

Rule 3:22-6(d).     Defendant has not provided a certification detailing his

interactions with PCR counsel or stating whether they ever met to discuss

defendant's case, and further failed to provide any competent evidence that PCR

counsel did not otherwise communicate with defendant, investigate claims, and

proffer the most effective arguments. See Hicks,  411 N.J. Super. at 375. While

defendant continues to argue that the DVD he viewed of the victim's statement

to the police and the grand jury transcript are critical to his current contentions,

these two items are not part of the appellate record. We therefore cannot find

that a new PCR proceeding is necessary based on a violation of the Rule.


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      In sum, defendant's claim that his PCR counsel violated Rule 3:22-6(d) is

founded on facts that exist outside the record on appeal. We express no opinion

on those claims because they must be first raised in an appropriate application

to the trial court. See R. 3:22-4(b)(2)(C) (providing a timely second PCR

petition will not be dismissed if it "alleges a prima facie case of ineffective

assistance of counsel that represented the defendant on the first or subsequent

application for [PCR].").

      Affirmed.




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