SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3768-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS F. CLARY,

a/k/a THOMAS MACKEN, 

THOMAS PITCHER, THOMAS

CLARY, THOMAS JOHNSON, 

THOMAS LEWIS, and THOMAS

MAKEN, 

Defendant-Appellant.

_______________________

Submitted April 26, 2021 – Decided May 11, 2021

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 17-03-0722.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the brief).

Jill S. Mayer, Acting Camden County Prosecutor, 

attorney for respondent (Kevin J. Hein, Special Deputy 

NOT FOR PUBLICATION WITHOUT THE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.
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Attorney General/Acting Assistant Prosecutor, of 

counsel and on the brief).

PER CURIAM 

Defendant appeals from a December 20, 2019 order1 denying his petition 

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

argues his plea counsel rendered ineffective assistance of counsel by allowing 

him to plead guilty under pressure, not raising mitigating factors at sentencing, 

failing to negotiate a more favorable plea deal, and failing to make a Miranda

motion. Judge Francisco Dominguez entered the order and rendered an oral 

opinion. 

On appeal, defendant raises the following arguments:

POINT I

THE PCR [JUDGE] ERRED IN DENYING

[DEFENDANT'S] PETITION FOR [PCR] WITHOUT 

AN EVIDENTIARY HEARING AS TESTIMONY IS 

NEEDED FROM PRIOR COUNSEL TO EXPLAIN 

WHY HE ALLOWED [] [DEFENDANT] TO 

PROCEED WITH THE PLEA HEARING WHEN HE 

KNEW [DEFENDANT] WAS BEING PRESSURED 

BY HIS FAMILY TO ACCEPT THE PLEA OFFER. 

POINT II

1 His Amended Notice of Appeal refers to the December 23, 2019 filing date of 

the order.
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THE PCR [JUDGE] ERRED IN DENYING 

DEFENDANT'S PETITION FOR [PCR] AS 

TESTIMONY IS NEEDED FROM PRIOR COUNSEL 

TO EXPLAIN WHY HE FAILED TO RAISE ANY 

MITIGATING FACTORS ON BEHALF OF 

[DEFENDANT] AT SENTENCING.

POINT III

THE PCR [JUDGE] ERRED IN DENYING 

DEFENDANT'S PETITION FOR [PCR] AS 

TESTIMONY IS NEEDED FROM PRIOR COUNSEL 

TO EXPLAIN WHY HE FAILED TO NEGOTIATE A 

LESSER-TERM OF IMPRISONMENT FOR

[DEFENDANT] IN LIGHT OF THE LACK OF 

EVIDENCE CONNECTING HIM TO THE 

SHOOTING.

POINT IV

THE PCR [JUDGE] ERRED IN DENYING 

DEFENDANT'S PETITION FOR [PCR] AS 

TESTIMONY IS NEEDED FROM PRIOR COUNSEL 

TO EXPLAIN WHY HE FAILED TO FILE A 

MOTION TO SUPPRESS [DEFENDANT'S]

STATEMENT TO POLICE AS [DEFENDANT] WAS 

INTOXICATED. 

We are unpersuaded by defendant's contentions and affirm substantially for the 

reasons expressed by Judge Dominguez. We add these remarks.

When a PCR judge does not hold an evidentiary hearing—like here—this 

court's standard of review is de novo as to both the factual inferences drawn by 
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the PCR judge from the record and the judge's legal conclusions. State v. Blake, 

444 N.J. Super. 285, 294 (App. Div. 2016).

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

defendant must satisfy the two-pronged test enumerated in Strickland v. 

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

State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong, 

a defendant must establish that his counsel "made errors so serious that counsel 

was not functioning as the 'counsel' guaranteed the defendant by the Sixth 

Amendment." 466 U.S. at 687. A defendant must rebut the "strong presumption 

that counsel's conduct [fell] within the wide range of reasonable professional 

assistance[.]" Id. at 689. Thus, this court must consider whether counsel's 

performance fell below an objective standard of reasonableness. Id. at 688.

To satisfy the second Strickland/Fritz prong, a defendant must show "that 

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial 

whose result is reliable." Id. at 687. A defendant must establish "a reasonable 

probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's 

performance has been so deficient as to create a reasonable probability that these 
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deficiencies materially contributed to defendant's conviction, the constitutional 

right will have been violated." Fritz, 105 N.J. at 58. Both the United States 

Supreme Court and the New Jersey Supreme Court have extended the 

Strickland/Fritz test to challenges of guilty pleas based on ineffective assistance 

of counsel. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 

566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). A 

defendant must demonstrate with "reasonable probability" that the result would 

have been different had he received proper advice from his attorney. Lafler, 566 

U.S. at 163 (quoting Strickland, 466 U.S. at 694). 

A defendant is only entitled to an evidentiary hearing when he "'has 

presented a prima facie [claim] in support of [PCR],'" meaning that a defendant 

must demonstrate "a reasonable likelihood that his . . . claim will ultimately 

succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting 

State v. Preciose, 129 N.J. 451, 463 (1992)). A defendant must "do more than 

make bald assertions that he was denied the effective assistance of counsel" to 

establish a prima facie claim entitling him to an evidentiary hearing. State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the 

burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350 

(2012). We "view the facts in the light most favorable to a defendant to 
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determine whether a defendant has established a prima facie claim." Preciose, 

129 N.J. at 462-63. 

Here, defendant pled guilty to amended second-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(1). In accordance with the plea agreement, defendant 

received nine years in prison subject to the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2. Despite defendant's extensive criminal history involving 

indictable state convictions, juvenile adjudications, and a federal conviction, his 

plea counsel successfully negotiated a dismissal of fifteen of the sixteen counts 

in the indictment. Defendant appealed the imposition of this sentence, which 

we affirmed on our excessive sentence calendar. Thus, defendant's argument 

that his plea counsel failed to negotiate a more favorable agreement is without 

merit, especially given the prison exposure he faced. 

Even though at the plea hearing defendant understood he waived his rights 

to file and present pre-trial motions, on the merits, we reject his argument that 

plea counsel was ineffective for failing to make a Miranda motion. There is 

nothing in the record demonstrating that defendant was—as he now argues for 

the first time—under the influence during the police interrogation. But even if 

his voluntary statements were suppressed, which in our view would not have 

happened, there is overwhelming evidence of guilt. A witness called the police, 
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described the clothing defendant had been wearing, and based on that 

information, police apprehended defendant as he was fleeing on a bus with two 

handguns under his bus seat. 

Nevertheless, on this record, defendant knowingly, intelligently, and 

voluntarily waived his Miranda rights. There is no evidence that anyone 

pressured defendant to plead guilty. Although he argues otherwise, the plea 

judge questioned defendant at the plea hearing and established defendant pled 

guilty voluntarily, knowingly, and without any coercion. 

To the extent we have not addressed defendant's remaining arguments, we 

conclude that they are without sufficient merit to warrant discussion in a written

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

Affirmed.