SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3676- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. DONALD HIGGS, a/k/a KYLE BEACHUM, DEVOAN EDWARDS, LEE HAROLD, DEVIN HIGGS, DEVON HIGGS, HAROLD LEE, AHMIR PIERCE, and FRBIN HIGGINS, Defendant-Appellant.

_______________________

Submitted February 27, 2024

– Decided May 2, 202 4 Before Judges Gooden Brown and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14

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- 2362. Jennifer N. Sellitti, Public Defender, attorney for appellant (Frank J. Pugliese, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3676

- 21 Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assista nt Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Donald Higgs appeals from the June 14, 20 22, Law Division order denying his petition for post-conviction reli ef (PCR) without an evidentiary hearing. We affirm. Defendant was charged in an Essex County indictment with first-degree carjacking, N.J.S.A. 2C:15-2(a)(1) (count one); fir st-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree unlawfu l possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degre e possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). The charges stemmed from allegations that defendant stole a Cadill ac from a church parking lot while armed with a gun. Following a 2016 jury trial, defendant was convicted of carjacking as charged in the indictmen t and second-degree robbery , a lesser included offense of count two. He was acq uitted of the remaining counts. After merger, defendant was sentenced on t he carjacking charge to fifteen years' imprisonment, subject to the eighty- five percent parole ineligibility provisions of the No Early Release Ac t (NERA), N.J.S.A. 2C:43-
7.2.3 A- 3676

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In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Higgs, No. A- 0660 -16 (App. Div. Feb. 7, 2018). In our opinion, we pointed out that "Faya Fontilus

— the only eyewitness to the carjacking

— couldn't make an in-court identification and instea d testified juror number nine 'kind of look[ed] like' the culprit." Id. at 2 (alteration in original). We recounted that during his testimony,

Fontilus described for the jury that he and his two brothers were working at a church in Irvington on t he evening of May 11, 2014. At some point he went to the church parking lot to charge a phone in his brother 's Cadillac, which was parked near the church's back d oor. While the phone was charging, Fontilus saw a man jump over a fence and enter his other brother's Hon da, which was twenty-seven feet from the Cadillac. Fontilus rolled down the Cadillac window and said, "what are you doing, do you want me to shoot you[?] " After additional words were exchanged, the man got out of the Honda and approached the Cadillac; according to Fontilus, the man drew a gun, which he kept at his side. Fontilus exited the Cadillac and entered the church to find his brothers; when they returned to the parkin g lot, they saw the Cadillac drive off. The brothers foll owed in the Honda and called police, who instructed them to return to the church and speak with a police office r there. They complied. Police used OnStar to locate the Cadillac, which was found parked in front of a bar on North Fifth Stre et in Newark. [Id. at 2-3 (alteration in original) (footnote omit ted) .]4 A- 3676

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We explained that despite Fontilus's inability to m ake an in-court identification of defendant at trial, when he was b rought by police to the bar

to identify the stolen vehicle[,] . . . . [w]hile s eated in a police vehicle, Fontilus watched as three or four individuals exited the bar. He identified defendant

— one of the departing bar patrons

— as "the guy," emphasizing he was "positive, that's the guy that carjacked me." Defendant was immediately detained and arrested. [Id. at 3-4 .] The State also presented evidence that a "fingerpri nt lifted from the stolen Cadillac's console matched defendant's fingerprints ." Id. at 5. Defendant filed a timely pro se PCR petition, whic h was later supplemented by assigned counsel. In his petition, among other claims, defendant asserted his trial attorney was ineffective by f ailing to: (1 ) "consult," "communicate ," and "review discovery" with defendant; (2) investi gate and call an alibi witness at trial; (3) "file a motion to dismiss count [ two ] of the indictment" charging first-degree robbery; and (4) "file a motion for a new trial" after the return of the verdict. In support, defendant asserted his trial counsel "m et with him three times outside of court during the course of the represent ation" and "each meeting . . . lasted for approximately thirty minutes." As to th e alibi witness, defendant5 A- 3676

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asserted that Alfonso Wilson, a security guard at t he bar on the date of the incident, would have "stated that [defendant] did n ot commit the offenses" because defendant "was outside" of the bar with Wil son "when another unidentified individual drove up to the bar in the [Cadillac] . . . . seeking to sell a speaker that was inside of the vehicle." However , defendant submitted no supporting affidavit or certification from Wilson. As to the motion to dismiss the indictment, defenda nt asserted he was "improperly charged" with "[two] distinct offenses based on the same conduct, " and "the State failed to put any evidence before th e Grand Jury that . . . [d]efendant intended to take anything other than a motor vehicle," which "conduct was addressed in the . . . carjacking char ge." Defendant's claim regarding the motion for a new trial was based on t he victim's failure "to identify [defendant] as the guilty party during the victim's trial testimony." Following oral argument, the PCR judge issued an or der and oral opinion on June 14, 2022, denying defendant's petition. In his decision, the judge reviewed the factual background and procedural hist ory of the case, applied the governing legal principles, and concluded defendant failed to establish a prima facie claim of ineffective assistance of counsel (I AC). The judge also6 A- 3676

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determined defendant was not entitled to an evident iary hearing. This appeal followed. On appeal, defendant makes the following arguments:
DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF [IAC]. DEFENDANT'S CLAIM IS SUPPORTED BY MATERIAL ISSUES OF DISPUTED FACTS LYING OUTSIDE THE RECORD. THE RESOLUTION OF THE DISPUTED FACTS NECESSITATED AN EVIDENTIARY HEARING. THE PCR COURT ERRED IN FAILING TO CONDUCT SUCH A HEARING. U.S. CONST. AMENDS. VI, XIV; N. J. CONST. ART. 1, PAR. 10; R. 3:22 -10B.
A. Trial Counsel Failed to Properly Investigate the Matter and to Produce a Relevant Alibi Witness for Trial.
B. Trial Counsel Lacked Diligence and Failed to Zealously Represent Defendant.
C. As a Direct Result of Trial Counsel's Failure to Move to Dismiss the Charge of Robbery Contained in the Indictment (Count Two), Defendant was the Recipient of [IAC].
D. Trial Counsel was Ineffective in Failing to Make a Motion for a new Trial Following the Jury[ 's ] Verdict.
E. Cumulative Errors denied Defendant His Right to a Fair Trial.7 A- 3676

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We begin by setting out some guideposts that inform our review. "We review the legal conclusions of a PCR judge de novo ." State v. Reevey, 417 N.J. Super. 134, 146 (App. Div. 2010). "[W]e revie w under the abuse of discretion standard the PCR court's determination t o proceed without an evidentiary hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding an evi dentiary hearing will not aid the court's analysis of whether the defendant is en titled to [PCR], . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). "[W]here . . . no evid entiary hearing was conducted," as here, "we may review the factual inferences the [trial] court has drawn from the documentary record de novo." State v. Blake, 4 44 N.J. Super. 285, 294 (App. Div. 2016) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). An evidentiary hearing is only required when (1) a defendant establishes "a prima facie case in support of [PCR]," (2) the c ourt determines that there are "material issues of disputed fact that cannot be re solved by reference to the existing record," and (3) the court determines that "an evidentiary hearing is necessary to resolve the claims" asserted. State v . Porter, 216 N.J. 343, 354 (2013) (alteration in original) (quoting R. 3:22 -10(b)) ; s ee R. 3:22 -10(e)(2) (providing "[a] court shall not grant an evidentiar y hearing . . . if the defendant's8 A- 3676

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allegations are too vague, conclusory or speculativ e"). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b). To establish a prima facie IAC claim, a defendant m ust demonstrate "by a preponderance of the credible evidence," State v. Echols, 199 N.J. 344, 357 (2009), that his or her attorney's performance fell below the objective standard of reasonableness set forth in Strickland v. Washin gton, 466 U.S. 668, 687 (1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58 (1987), and that the outcome would have been different without the purpo rted deficient performance. Stated differently, a defendant must show that: (1) counsel's performance was deficient; and (2) the deficient pe rformance prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N .J. at 58. To satisfy the first prong, a defendant must "show[ ] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and "that counsel 's representation fell below an objective standard of reasonableness." St rickland, 466 U.S. at 687- 88. "[I]n making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of re asonable professional9 A- 3676

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assistance . . . ." Id. at 689. As such, a defend ant "must overcome the presumption that, under the circumstances, the chal lenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). To satisfy the prejudice prong, "[t]he error commit ted must be so serious as to undermine the court's confidence in the jury' s verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Str ickland, 466 U.S. at 694). This prong generally requires that a defendant esta blish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Failure to meet either prong of the two-pronged Str ickland/Fritz test results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280 (2012) (citing Echols, 199 N.J. at 358). That said , "courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether co unsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citation omitted) (citing Strickland, 466 U.S. at 697). Applying these principles, we reject defendant's contentions reprised on appeal b ased solely on defendant's inability to establish the prejudice prong, and dis miss the claims "without10 A- 3676

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determining whether counsel's performance was const itutionally deficient" in any respect. Ibid. First, as to trial counsel's failure to file certai n motions, "[i]t is not ineffective assistance of counsel for defense couns el not to file a meritless motion, " State v. O'Neal, 190 N.J. 601, 619 (2007), and we a gree with the PCR judge that neither motion would have been successful. Regarding the motion to dismiss count two of the indictment, after reviewin g the grand jury transcript, the PCR judge noted that surveillance footage showe d defendant attempting to sell items from inside the Cadillac after he arrive d at the bar. Thus, contrary to defendant's arguments, the judge properly concluded "there was sufficient evidence before the grand jury to return a count fo r robbery apart from a carjacking" based on evidence that items from insid e the Cadillac "that was taken by way of force were being sold ." As to the motion for a new trial based on the victi m's in-court identification testimony, the judge determined "there was no factual basis . . . to support a motion for a new trial" because "there wa s sufficient evidence to support the identification" of defendant as the car jacker. The judge explained that "there was trial testimony . . . of the victim 's identification of [defendant as the perpetrator] at the scene . . . closer to the t ime of the actual incident ."11 A- 3676

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Moreover, according to the judge, defendant mischar acterized the victim's incourt identification testimony, a mischaracterizati on that defendant reiterates on appeal. As the judge pointed out, the victim did n ot identify "another party" at trial as the perpetrator but instead testified that "juror number nine [] look [ed] like or resemble[d] the carjacker." Turning to the failure to investigate and call Wils on as an alibi witness, "when a petitioner claims his trial attorney inadeq uately investigated his case, he must assert the facts that an investigation woul d have revealed, supported by affidavits or certifications based upon the persona l knowledge of the affiant or the person making the certification." State v. Cum mings, 321 N.J. Super. 154, 170 (App. Div. 1999). Without such evidence, defen dant's claim amounts to a "bald assertion[]," which "is insufficient to suppo rt a prima facie case of ineffectiveness." Id. at 170- 71. Here, we agree with the judge that without an affidavit or certification from Wilson to support d efendant's alibi, defendant's "bald assertion that . . . [Wilson] exists and woul d so testify is insufficient to support an evidentiary hearing or [a] prima facie c ase under Cummings ." For the same reason, defendant's claim that trial c ounsel failed to adequately consult and communicate with him about t he case fails. Defendant never suggested how more frequent consultation or communication would have12 A- 3676

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changed the defense or the outcome at trial. "[A] petitioner must do more than make bald assertions that he was denied the effecti ve assistance of counsel." Id.

at 170

. Finally, because we conclude defendant was not prej udiced by any of his attorney's purported deficiencies, his cumulati ve error argument also fails. To the extent we have not addressed a particular ar gument, it is because either our disposition makes it unnecessary, or the argument was without sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(2). Affirmed.