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, 2024 

Before Judges Gooden Brown and Puglisi. 

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 14-09-2362.

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
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Theodore N. Stephens, II, Essex County Prosecutor, 

attorney for respondent (Matthew E. Hanley, Assistant 

Prosecutor, of counsel and on the brief). 

PER CURIAM 

Defendant Donald Higgs appeals from the June 14, 2022, Law Division 

order denying his petition for post-conviction relief (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); first-degree armed robbery, 

N.J.S.A. 2C:15-1 (count two); second-degree unlawful possession of a handgun, 

N.J.S.A. 2C:39-5(b) (count three); and second-degree 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 Cadillac from a church parking 

lot while armed with a gun. Following a 2016 jury trial, defendant was 

convicted of carjacking as charged in the indictment and second-degree robbery, 

a lesser included offense of count two. He was acquitted of the remaining 

counts. After merger, defendant was sentenced on the carjacking charge to 

fifteen years' imprisonment, subject to the eighty-five percent parole 

ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. 
3 A-3676-21

In an unpublished opinion, we affirmed defendant's conviction and 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 instead 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 the 

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 door. 

While the phone was charging, Fontilus saw a man 

jump over a fence and enter his other brother's Honda, 

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 parking lot, 

they saw the Cadillac drive off. The brothers followed 

in the Honda and called police, who instructed them to 

return to the church and speak with a police officer 

there. They complied. 

Police used OnStar to locate the Cadillac, which 

was found parked in front of a bar on North Fifth Street 

in Newark. 

 

[Id. at 2-3 (alteration in original) (footnote omitted).]
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We explained that despite Fontilus's inability to make an in-court 

identification of defendant at trial, when he was brought by police to the bar 

to identify the stolen vehicle[,] . . . . [w]hile seated 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 "fingerprint lifted from the stolen 

Cadillac's console matched defendant's fingerprints." Id. at 5. 

 Defendant filed a timely pro se PCR petition, which was later 

supplemented by assigned counsel. In his petition, among other claims, 

defendant asserted his trial attorney was ineffective by failing to: (1) "consult," 

"communicate," and "review discovery" with defendant; (2) investigate 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 "met with him three times 

outside of court during the course of the representation" and "each meeting . . . 

lasted for approximately thirty minutes." As to the alibi witness, defendant 
5 A-3676-21

asserted that Alfonso Wilson, a security guard at the bar on the date of the 

incident, would have "stated that [defendant] did not commit the offenses" 

because defendant "was outside" of the bar with Wilson "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, defendant asserted he was 

"improperly charged" with "[two] distinct offenses based on the same conduct," 

and "the State failed to put any evidence before the Grand Jury that . . . 

[d]efendant intended to take anything other than a motor vehicle," which 

"conduct was addressed in the . . . carjacking charge." Defendant's claim 

regarding the motion for a new trial was based on the victim's failure "to identify 

[defendant] as the guilty party during the victim's trial testimony." 

Following oral argument, the PCR judge issued an order and oral opinion 

on June 14, 2022, denying defendant's petition. In his decision, the judge 

reviewed the factual background and procedural history of the case, applied the 

governing legal principles, and concluded defendant failed to establish a prima 

facie claim of ineffective assistance of counsel (IAC). The judge also 
6 A-3676-21

determined defendant was not entitled to an evidentiary 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-3676-21

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 review under the abuse of 

discretion standard the PCR court's determination to proceed without an 

evidentiary hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 

2013). "If the court perceives that holding an evidentiary hearing will not aid 

the court's analysis of whether the defendant is entitled to [PCR], . . . then an 

evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 

(1997) (citations omitted). "[W]here . . . no evidentiary 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, 444 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 court determines that 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" asserted. State v. Porter, 216 N.J. 343, 354 

(2013) (alteration in original) (quoting R. 3:22-10(b)); see R. 3:22-10(e)(2) 

(providing "[a] court shall not grant an evidentiary hearing . . . if the defendant's 
8 A-3676-21

allegations are too vague, conclusory or speculative"). "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 must 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. Washington, 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 purported deficient 

performance. Stated differently, a defendant must show that: (1) counsel's 

performance was deficient; and (2) the deficient performance 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." Strickland, 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 reasonable professional 
9 A-3676-21

assistance . . . ." Id. at 689. As such, a defendant "must overcome the 

presumption that, under the circumstances, the challenged 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 committed 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 Strickland, 466 U.S. at 694). 

This prong generally requires that a defendant establish 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 Strickland/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 counsel'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 based solely on defendant's 

inability to establish the prejudice prong, and dismiss the claims "without 
10 A-3676-21

determining whether counsel's performance was constitutionally deficient" in 

any respect. Ibid. 

First, as to trial counsel's failure to file certain motions, "[i]t is not 

ineffective assistance of counsel for defense counsel not to file a meritless 

motion," State v. O'Neal, 190 N.J. 601, 619 (2007), and we agree with the PCR 

judge that neither motion would have been successful. Regarding the motion to 

dismiss count two of the indictment, after reviewing the grand jury transcript, 

the PCR judge noted that surveillance footage showed defendant attempting to 

sell items from inside the Cadillac after he arrived 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 for robbery apart from a 

carjacking" based on evidence that items from inside the Cadillac "that was 

taken by way of force were being sold."

As to the motion for a new trial based on the victim's in-court 

identification testimony, the judge determined "there was no factual basis . . . to 

support a motion for a new trial" because "there was sufficient evidence to 

support the identification" of defendant as the carjacker. The judge explained 

that "there was trial testimony . . . of the victim's identification of [defendant as 

the perpetrator] at the scene . . . closer to the time of the actual incident." 
11 A-3676-21

Moreover, according to the judge, defendant mischaracterized the victim's incourt identification testimony, a mischaracterization that defendant reiterates on 

appeal. As the judge pointed out, the victim did not 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 Wilson as an alibi witness, 

"when a petitioner claims his trial attorney inadequately investigated his case, 

he must assert the facts that an investigation would have revealed, supported by 

affidavits or certifications based upon the personal knowledge of the affiant or 

the person making the certification." State v. Cummings, 321 N.J. Super. 154, 

170 (App. Div. 1999). Without such evidence, defendant's claim amounts to a 

"bald assertion[]," which "is insufficient to support 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 defendant's alibi, defendant's 

"bald assertion that . . . [Wilson] exists and would so testify is insufficient to 

support an evidentiary hearing or [a] prima facie case under Cummings." 

For the same reason, defendant's claim that trial counsel failed to 

adequately consult and communicate with him about the case fails. Defendant 

never suggested how more frequent consultation or communication would have 
12 A-3676-21

changed the defense or the outcome at trial. "[A] petitioner must do more than 

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

at 170. Finally, because we conclude defendant was not prejudiced by any of 

his attorney's purported deficiencies, his cumulative error argument also fails. 

To the extent we have not addressed a particular argument, 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.