SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3841-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent, 

v. 

KELLY N. FOWLER, 

Defendant-Appellant. 

_________________________

Submitted September 25, 2019 - Decided

Before Judges Koblitz and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No.12-02-0576.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew R. Burroughs, Designated Counsel, 

on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Matthew E. 

Hanley, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 4, 2019
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Defendant Kelly Fowler appeals from a February 22, 2018 order denying her 

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

was convicted by a jury of second-degree arson, N.J.S.A. 2C:17-1(a)(1); thirddegree burglary, N.J.S.A. 2C:18-2(a)(1); and third-degree criminal mischief, 

N.J.S.A. 2C:17-3(a). She was acquitted of attempted first-degree murder, N.J.S.A. 

2C:5-1(a)(2) and N.J.S.A. 2C:11-3, and third-degree terroristic threats, N.J.S.A. 

2C:12-3(b). Defendant was sentenced to an aggregate term of eight years in prison, 

subject to an eighty-five percent period of parole ineligibility pursuant to the No 

Early Release Act, N.J.S.A. 2C:42-7.2. We affirmed. State v. Fowler, No. A-3860-

13 (App. Div. May 10, 2016). Our Supreme Court denied certification. State v. 

Fowler, 227 N.J. 365 (2016). 

Defendant raises the following issues on appeal:

POINT I: THE PCR COURT ERRED WHEN IT 

FOUND DEFENDANT HAD FAILED TO 

ESTABLISH A PRIMA FACIE CASE OF 

INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE WHEN 

HE FAILED TO REQUEST THE LESSER 

INCLUDED CHARGE OF THIRD-DEGREE ARSON.

B. TRIAL COUNSEL'S FAILURE TO REQUEST AN 

INSTRUCTION ON CAUSATION AND 

NEGLIGENCE PREJUDICED HIS CLIENT’S RIGHT 

TO A FAIR TRIAL.
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C. DEFENSE COUNSEL FAILED TO 

EFFECTIVELY PRESENT TIME DISCREPANCY 

EVIDENCE WHICH WOULD HAVE 

DEMONSTRATED IT WAS NOT FEASIBLE FOR 

DEFENDANT TO HAVE STARTED THE FIRE.

D. DEFENSE COUNSEL FAILED TO CHALLENGE 

[T.M.] ABOUT HER FALSE AND MISLEADING 

GRAND JURY TESTIMONY.

E. DEFENSE COUNSEL FAILED TO MOVE TO 

DISMISS THE INDICTMENT.

F. DEFENSE COUNSEL WAS INEFFECTIVE 

WHEN HE FAILED TO CHALLENGE THE 

VALIDITY OF THE ARREST WARRANT.

G. TRIAL COUNSEL FAILED TO OBJECT TO THE

ADMISSIBILITY OF CERTAIN VOICEMAIL

RECORDINGS.

H. APPELLATE COUNSEL WAS INEFFECTIVE 

BY FAILING TO ARGUE THE TRIAL JUDGE’S 

CONDUCT DENIED DEFENDANT A FAIR AND 

RELIABLE TRIAL.

POINT II: AS THERE WERE GENUINE ISSUES OF 

MATERIAL FACTS IN DISPUTE, AN 

EVIDENTIARY HEARING WAS REQUIRED.

Because defendant failed to demonstrate a prima facie case of ineffective 

assistance of counsel necessitating a plenary hearing, we affirm.
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I.

We review a judge's denial of PCR without an evidentiary hearing de novo. 

State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). A PCR petitioner must 

establish the grounds for relief by a "preponderance of the credible evidence." State 

v. Goodwin, 173 N.J. 583, 593 (2002). To sustain that burden, the "petitioner must

do more than make bald assertions that he [or she] was denied the effective 

assistance of counsel." State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). The petitioner must 

articulate specific facts that demonstrate counsel's constitutional deficiency. Ibid.

To succeed on a claim for ineffective assistance of counsel, a defendant must 

establish both prongs of the Strickland1test. State v. Parker, 212 N.J. 269, 279-80 

(2012). Under the first prong, counsel's representation must be objectively 

unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). Under the second prong, a 

"reasonable probability [must exist] that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different." Id. at 583 (quoting Strickland, 

466 U.S. at 694). 

In reviewing claims for ineffective assistance of counsel, courts apply a strong 

presumption that defense counsel "rendered adequate assistance and made all 

 

1 Strickland v. Washington, 466 U.S. 668, 687 (1984).
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significant decisions in the exercise of reasonable professional judgment." 

Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will 

not serve to ground a constitutional claim of inadequacy." Fritz, 105 N.J. at 54 

(1987) (quoting State v. Williams, 39 N.J. 471, 489 (1963)); see also State v. Nash, 

212 N.J. 518, 543 (2013) ("The test is not whether defense counsel could have done 

better, but whether he [or she] met the constitutional threshold for effectiveness.").

We incorporate our statement of facts from our decision on direct appeal. 

Fowler, slip op. at 2-5. Defendant was convicted of starting an early morning fire 

on the front porch of the home of her former girlfriend. 

II.

Defendant takes issue with trial counsel's strategy to argue only her noninvolvement and not her lack of intent to cause injury. Defendant argues that 

trial counsel's failure to seek a lesser guilty verdict on the basis of a lack of 

intent to cause harm constituted ineffective assistance of counsel. However, "an 

otherwise valid conviction will not be overturned merely because the defendant 

is dissatisfied with his or her counsel's exercise of judgment during trial." State 

v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 

314-15 (2006)). Our Supreme Court explained that a reviewing court should 

defer to counsel's strategically defensible and tactical decisions, "[e]ven if 
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counsel made strategy miscalculations or trial mistakes." State v. Buonadonna, 

122 N.J. 22, 42 (1991).

On direct appeal, we rejected defendant's arguments that the jury 

instructions were improper, discerning "no plain error in the trial court not sua 

sponte instructing the jury concerning recklessness, negligence, or accidental 

causes of the fire." Fowler, slip op. at 10. The PCR court described defense 

counsel's decision not to request instructions for third-degree arson, causation, 

and negligence as "an objectively reasonable strategy." The PCR court 

explained that under N.J.S.A. 2C:17-1 "[b]oth second- and third-degree [a]rson 

charges contain an element of an intentional setting of fire. The difference is 

whether the fire was set knowingly or intentionally to cause injury or it was set 

and could have recklessly caused injury." 

During trial, the court discussed the lesser charge with counsel, but 

defense counsel and the judge concluded that under the asserted defense, the 

charge was not appropriate. The PCR court found "the issue of the consequence 

of that fire being known as opposed to being recklessly disregarded [had] no 

bearing on the defense of non-involvement." The PCR court stated:

The fact that the trial counsel's strategy was ultimately 

unsuccessful is not dispositive and the Court's 

assessment of the trial counsel's performance will not 

be affected by the benefit of hindsight. Under the first 
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Strickland prong, it was objectively reasonable for the 

trial counsel to argue that Fowler was not involved in 

starting the fire. Indeed, in support of this strategy, the 

trial counsel called two alibi witnesses. Moreover, the 

alibi defense was inconsistent with Fowler's now 

proposed strategy. 

We agree with the PCR court that defense counsel's strategy was not 

constitutionally defective.

III.

Defendant argues she was prejudiced by defense counsel's failure to 

address the improbability that she started the fire when the fire was reported at 

about the same time defendant was stopped by the police. On October 9, 2011,

the morning of the fire, a defense witness testified that defendant was at a 

motorcycle race, which concluded at 4:30 a.m. Defendant's car was pulled over

by the police about two minutes away from the scene of the fire at 4:40 a.m. 

The fire was reported at 4:42 a.m. 

Defendant asserts that trial counsel should have argued more effectively 

that it was unlikely defendant started a fire at the victim's residence within the 

ten minutes of leaving the motorcycle race and before being stopped by the 

police. 

Defense counsel, however, did make that precise argument in his closing 

argument, stating:
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You remember [the investigator] stated this wasn't a 

smoldering fire, this wasn't a fire that smoldered. That 

was his determination. This fire was lit and caught up 

so you know it didn't smolder which would have given 

the time to say maybe the fire was smoldering, it gave 

her time. That's not what [the investigator] said. 

[The investigator] said the opposite. If he said, yeah, 

you know the fire smoldered for a while before it caught 

up, maybe that would be an issue but that's not what he 

testified to. He testified that the fire did not smolder, 

went right up. 

So how could they actually try and pin this case on Miss 

Fowler when the fire didn't smolder, went right up? 

The door bangs, [the victim] is calling at 4:42. Miss 

Fowler is stopped at 4:40 after being followed all that 

way . . . Couldn't have been her. 

Trial counsel thus discussed the time element. 

IV.

Defendant argues defense "counsel's failure to confront [the victim] with 

her false sworn testimony before the [g]rand [j]ury was inexplicable." When the 

victim was asked before the grand jury about when and what kind of voicemails 

defendant left her, the prosecutor elicited the following testimony:

Q: And in these messages, did she -- well, did she tell 

you a lot of things, including that she loves you and also 

that she was going to get you?

A: Yes. 
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Q: And did she threaten to kill you?

A: Yes. 

Q: And in those messages, -- and was this in the first 

week or so of -- let me get the dates right here. I don't 

want to get them wrong --between the 7th of October 

and the 9th of October of last year?

A: Yes.

Q: And when Ms. Fowler left messages threatening to 

kill you, did you believe her?

A: Yes. 

Although defense counsel did not directly confront the victim about her 

misleading testimony to the grand jury concerning the source of the October 7, 

2011 voicemail she received, defense counsel did clarify for the jury that the 

voicemail was not from defendant, but rather an unidentified male.

Q: I represent to you that the message on October 7th 

was a male. The message that you provided was from a 

male, that's not Miss Fowler, correct?

A: The male referring to Miss Fowler, yes.

Q: That's not Miss Fowler correct?

A: That message was not Miss Fowler. It was a male 

referring to her.

Q: On October 7th, 8th, or 9th, you have no telephone 

message from Miss Fowler, correct?
10 A-3841-17T1

A: Correct.

Thus, defense counsel did not fail to cross-examine the victim about who left 

the voicemail message on October 7. The fact that counsel failed to confront 

her with her misleading testimony before the grand jury was not significant.

V.

In a related argument, defendant claims trial counsel should have moved 

to dismiss the indictment pretrial because the State failed to present exculpatory 

evidence to the grand jury regarding the male voice on the threatening voicemail 

the victim received on October 7, 2011. Also, defendant argues the fire 

investigator's grand jury testimony that the fire smoldered coupled with his trial 

testimony that it did not smolder before at trial mislead the grand jury.

Pursuant to Rule 3:10-2(c), the State has the opportunity to cure any 

irregularity or defect in the grand jury process any time before trial. State v.

Simon, 421 N.J. Super. 547, 551 (App. Div. 2011). When an indictment is 

dismissed, the State has the right to bring a new indictment. Ibid. (citing State 

v. Womack, 145 N.J. 576, 590 (1996)). 

As correctly noted by the State, ample evidence existed to sustain an 

indictment. The victim testified to the following at trial:
11 A-3841-17T1

Q: Is it fair to say that you received messages from the 

defendant of all sorts like threatening messages I think 

you said?

A: Yes.

Q: Apologetic messages and messages that said what?

A: "I am going to get you." She expressed her anger. 

She would just make comment like "I am not going to 

stop until you pay. I am on everything, smoking." There 

is just a number -- I can't remember them all verbatim. 

Q: Did you save them all? 

A: I believe so -- no, I didn't save every single message.

Q: When did you start saving them?

A: In August. 

Q: And between August and what date did you save 

them until approximately?

A: October. 

The fact that the victim received a threatening voicemail from an 

unidentified male does not negate that defendant also left threatening 

voicemails. As to the investigator's testimony about the amount of time the fire 

burned, the length of time the fire smoldered would not negate probable cause. 

Even if defense counsel had successfully moved to dismiss the indictment, 
12 A-3841-17T1

sufficient probable cause existed for the State to re-present the matter to a new 

grand jury. 

VI.

Defendant argues defense counsel should have challenged her arrest 

warrant because it was "based on hearsay[] and deliberate falsehoods intrinsic 

to the facts of the alleged offense in question" and had defense counsel objected 

to its validity, "it was likely the court would have denied an arrest warrant for 

making terroristic threats." Our Supreme Court established that "for an arrest[] 

'there must be probable cause to believe that a crime has been committed and 

that the person sought to be arrested committed the offense.'" State v. Brown, 

205 N.J. 133, 144 (2011) (quoting State v. Chippero, 201 N.J. 14, 28 (2009)). 

"[T]he appropriate remedy for an improper arrest is suppression of any 

evidence that may have been seized in connection with that arrest." State v. 

Egles, 308 N.J. Super. 124, 131 (App. Div. 1998). Defendant fails to 

demonstrate how her purportedly unlawful arrest affected her conviction. See

Brown, 205 N.J. at 137 (discussing the validity of defendant's warrantless arrest

in light of her post-arrest statements). Trial counsel was not ineffective by

failing to challenge the warrant.
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VII.

Defendant argues defense counsel should have requested a pre-trial hearing 

to suppress the voicemails introduced by the State because they were edited and 

altered. Pursuant to State v. Driver, 38 N.J. 255, 287 (1962), sound recordings 

are admissible if the speaker is identified and "(1) the device was capable of 

taking the conversation or statement, (2) its operator was competent; (3) the 

recording is authentic and correct; (4) no changes, additions or deletions have 

been made, and (5) in instances of alleged confessions, that the statements were 

elicited voluntarily and without any inducement." 

The victim used a hand-held device to record the messages from her phone

and testified she did not alter the recordings in any way. She explained that 

some of the dates were inadvertently missing from the recordings. The Driver

standards were met and defense counsel had no basis to suppress the recordings.

VIII.

Defendant also argues appellate counsel was ineffective when he failed to 

argue that the trial judge denied defendant due process "by acting as a prosecutor 

[and] by inserting her own opinion in the case." The standard of review for 

assessing ineffective assistance of appellate counsel is the same Strickland twoprong test that applies to ineffective assistance of trial counsel claims. State v. 
14 A-3841-17T1

Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007). Appellate counsel is not 

required to bring all non-frivolous claims or claims that are "legally unworthy 

of pursuit." State v. Webster, 187 N.J. 254, 256 (2006); see also State v. O'Neil, 

219 N.J. 598, 613 (2014) (noting "appellate counsel does not have an obligation 

'to advocate ad infinitum'") (internal citation omitted). 

Defendant's argument regarding the bias of the trial judge is meritless. In 

defendant's first example regarding the date of the complaint, the trial judge 

explained on the record that she misread the document and defense counsel 

stated the correct date. In the second example, rather than questioning defense 

counsel's knowledge about the facts, the trial judge sought clarification of the 

timeline. In the third example, the colloquy occurred outside the presence of 

the jury. Appellate counsel had no obligation to bring this claim. 

VIX.

Finally, defendant argues that because "there was a genuine dispute of 

material facts, she was entitled to an evidentiary hearing on her various claims." A

PCR judge has the discretion to grant such a hearing. State v. Jones, 219 N.J. 298, 

311 (2014). We review this decision under the abuse of discretion standard. State 

v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). A defendant is entitled to 

an evidentiary hearing only when (1) he or she sets forth a prima facie case of 
15 A-3841-17T1

ineffective assistance of counsel; (2) the court determines "there are material issues 

of disputed fact that cannot be resolved by reference to the existing record"; and (3) 

the court determines "that an evidentiary hearing is necessary to resolve the claims 

for relief." R. 3:22-10(b). Because defendant failed to establish a prima facie case 

for ineffective assistance of counsel, an evidentiary hearing was not warranted. 

Affirmed.