SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1757-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

BRIAN M. MERTZ, a/k/a 

BRIAN MICHAEL MERTZ, 

 Defendant-Appellant. 

_________________________ 

Submitted March 6, 2024 – Decided May 3, 2024 

Before Judges Accurso and Walcott-Henderson. 

On appeal from the Superior Court of New Jersey, 

Law Division, Gloucester County, Indictment No. 

09-06-0488.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Frank M. Gennaro, Designated Counsel, on

the brief). 

Christine A. Hoffman, Acting Gloucester County 

Prosecutor, attorney for respondent (Michael C. 

Mellon, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE 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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PER CURIAM 

Defendant Brian Mertz appeals from the October 21, 2022 order 

dismissing his second petition for post-conviction relief (PCR). Defendant 

claims the trial court erred in denying him an evidentiary hearing on the claim 

his PCR counsel provided him ineffective assistance by failing to argue 

defendant's trial counsel was ineffective for not objecting to inadmissible 

testimony and seeking a curative instruction. The trial court dismissed the 

claim as time-barred and without merit as we'd already deemed trial counsel's 

error harmless on defendant's prior appeal. We agree and affirm. 

Defendant was convicted in 2012 of first-degree murder of a woman in 

2002, following the discovery of DNA evidence in 2007 linking him to the 

crime. State v. Mertz, No. A-3704-12 (App. Div. Dec. 29, 2015) (slip op. at 

2). We affirmed his conviction, id. at 1, 23, and the Supreme Court denied his 

petition for certification, State v. Mertz, 224 N.J. 529 (2016). 

Defendant filed a timely petition for PCR in February 2017, arguing 

among several other things that his trial and appellate counsel had been 

ineffective by failing to object to the testimony of a police lieutenant "that the 

July 16, 2007, interview of defendant ended when defendant 'asked for a 

lawyer.'" State v. Mertz, No. A-0705-18 (App. Div. July 2, 2020) (slip op. at 
3 A-1757-22

6). The PCR court denied defendant's petition, finding the trial court did not 

err in admitting the testimony, and plaintiff was not prejudiced in any event. 

Id. at 10-11. 

We affirmed the denial of defendant's PCR petition for different reasons 

than those expressed by the PCR court. See State v. Maples, 346 N.J. Super. 

408, 417 (App. Div. 2002) (noting "we affirm or reverse judgments and orders, 

not reasons"). We found "nothing in the record that would have supported the 

proper admission of the lieutenant's testimony about defendant's invocation of 

his right to counsel." Mertz, No. A-0705-18 (slip op. at 14). We accordingly 

concluded that trial counsel erred in failing to object to the testimony or seek a 

curative instruction, and thus that defendant had established the first prong of 

the Strickland1 standard. Id. at 15. We agreed with the trial court, however, 

that the error did not prejudice defendant as "the challenged testimony was 

fleeting, the court generally instructed the jury on defendant's right to remain 

silent, and the prosecutor made no mention of defendant's request for an 

attorney during summations or at any other time during the trial." Id. at 16. 

Because defendant failed to establish he suffered any prejudice under 

1

 Strickland v. Washington, 466 U.S. 668, 693-94 (1984). 
4 A-1757-22

Strickland's second prong, we affirmed the denial of his petition.2 See 

Strickland, 466 U.S. at 687 (explaining a petitioner must establish both prongs 

of the Strickland standard in order to obtain a reversal of a conviction). 

On January 28, 2021, defendant filed a second petition for PCR, 

alleging, with the assistance of appointed counsel, that his PCR counsel was 

ineffective because he "failed to argue that a curative instruction was required 

when testimony was elicited that questioning ceased due to the defendant 

requesting counsel." As already noted, the PCR court denied the petition on 

the grounds it was untimely, Rule 3:22-12(a)(2)(C), and we had already 

decided the failure of trial counsel to seek a curative instruction did not 

prejudice defendant, see R. 3:22-5. Defendant appeals, reprising the 

arguments he made to the trial court. 

Pursuant to Rule 3:22-12(a)(2), no second or subsequent petition for 

PCR, "[n]otwithstanding any other provision in [Rule 3:22-12], . . . shall be 

filed more than one year after the latest of:" A) the United States Supreme 

Court's or the Supreme Court of New Jersey's recognition of a new 

constitutional right on which the defendant relies, which the Court has made 

2

 The Supreme Court subsequently denied defendant's petition for 

certification. State v. Mertz, 244 N.J. 396 (2020). 
5 A-1757-22

retroactive to cases on collateral review; B) a newly discovered factual 

predicate, which could not have been earlier discovered through reasonable 

diligence; or C) "the date of the denial of the first . . . application for postconviction relief" where the defendant alleges ineffective assistance of counsel 

representing him on that petition. R. 3:22-12(a)(2)(A) to (C). A 2009 

amendment to the Rule makes clear beyond question that the one-year 

limitation for second or subsequent petitions is non-relaxable. R. 3:22-12(b); 

State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018); see also R. 1:3-

4(c). Rule 3:22-4(b)(1) requires dismissal of a second petition if untimely 

under Rule 3:22-12(a)(2). 

Application of those Rules here makes plain the trial court was correct in 

dismissing defendant's second PCR petition as untimely. Defendant filed his 

second PCR petition on January 28, 2021, more than one year beyond the 

denial of his first petition on August 10, 2018. Not only was the petition filed 

beyond the one-year non-relaxable limitation of Rule 3:22-12(a)(2)(A)-(C), 

thus requiring its dismissal under Rule 3:22-4(b), but defendant raised, and we 

rejected, the claim that he was prejudiced by his trial counsel's failure to object 

to the police lieutenant's testimony about his request for counsel or counsel's 

failure to seek a curative instruction following its admission in his appeal from 
6 A-1757-22

the denial of his first petition. Mertz, No. A-0705-18 (slip op. at 14-17). 

Dismissal of the petition was thus appropriate under Rule 3:22-5 as well. 

Finally, there was no need for the trial court to have held an evidentiary 

hearing on a time-barred PCR petition in which the sole issue raised had 

already been decided on a prior appeal. See State v. Preciose, 129 N.J. 451, 

462-63 (1992). 

Affirmed.