SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1713-22

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

TINA LUNNEY, 

 Defendant-Appellant. 

_______________________

Submitted April 15, 2024 – Decided September 5, 2024 

Before Judges Gilson and Bishop-Thompson. 

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 10-01-0190.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on

the brief). 

Theodore N. Stephens, II, Essex County Prosecutor, 

attorney for respondent (Braden Bendon Couch, 

Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1713-22

PER CURIAM 

Defendant Tina Lunney appeals from a January 2, 2023 order denying her

petition for post-conviction relief (PCR) following an evidentiary hearing. After 

reviewing the arguments, the record, and the applicable law, we affirm. 

I.

In January 2010, a grand jury indicted defendant on charges of first-degree 

murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); fourth-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and third-degree 

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count 

three). A jury convicted defendant on all counts. Defendant was subsequently 

sentenced to a forty-year prison term with an eighty-five percent parole 

disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the 

murder conviction. The other two convictions were merged with the murder 

conviction. 

The details of defendant's offenses are recounted thoroughly in our 

unpublished opinion affirming defendant's conviction and sentence on direct 

appeal, which need not be repeated here. State v. Lunney, No. A-0774-13 (App. 

Div. Apr. 21, 2016). Defendant appealed the denial of her motion to suppress a 

July 27, 2009 statement to the police. In the direct appeal, we concluded: (1) 
3 A-1713-22

the record made "clear that the motion judge considered the lack of recordation 

of the Miranda1 warnings and waiver as a factor in analyzing whether defendant 

understood and waived her rights knowingly, voluntarily, and intelligently"; (2) 

defendant was "neither cognitively nor incapable of abstract comprehension"; 

(3) the record amply supported the judge's findings that "defendant's statements 

were logical, relevant, and she thoughtfully and appropriately answered the 

questions asked"; and (4) defendant did not adduce "credible evidence of 

specific police conduct rendering her statement involuntary." Lunney, slip op. 

at 5, 11, 12. We also rejected defendant's argument that she neither 

acknowledged nor understood her Miranda warnings because she signed the 

Miranda waiver form after it was read to her in its entirety. Id. at 12. 

Defendant's petition for certification was denied. State v. Lunney, 227 N.J. 240 

(2016). The United States Supreme Court denied defendant's petition for 

certiorari on October 2, 2017. Lunney v. New Jersey, 138 S. Ct. 56 (2017). 

In October 2017, defendant filed a PCR petition, asserting claims of 

ineffective assistance of counsel. Following oral argument, the PCR court 

determined that defendant established ineffective assistance of counsel on two 

1

 Miranda v. Arizona, 384 U.S. 436 (1966). 
4 A-1713-22

claims and granted an evidentiary hearing to address the trial counsel's failure 

to present a diminished capacity or an insanity defense on the murder charge 

and whether counsel misled defendant about the strength of the State's case 

causing defendant to reject the plea. 

After conducting an evidentiary hearing on those two discrete issues, in a 

May 28, 2019 written opinion, the PCR court denied defendant's motion. The 

court found that "the record [was] bereft of any grounds to find that defense 

counsel's trial strategy of not invoking the insanity defense or a defense of 

diminished capacity. There was a reasonable basis for trial counsel's strategic 

decision not to invoke either defense." As to the second claim regarding 

counsel's advice and defendant's rejection of the plea, the court determined that 

defendant failed to meet her burden on the first prong under Strickland v. 

Washington, 466 U.S. 668, 686 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). 

We affirmed the denial of defendant's two claims but remanded the matter for 

the PCR court to address other arguments not considered in the court's written 

opinion. State v. Lunney, No. A-5524-18 (Jan. 18, 2022). Defendant's petition 

for certification was denied by our Supreme Court. State v. Lunney, 251 N.J. 

473 (2022). 
5 A-1713-22

In defendant's PCR counsel's brief, she asserted: 

I. WHEN TRIAL COUNSEL OPENED THE 

DOOR TO PSYCHIATRIST DR. PAUL'S REPORT, 

HE UNDERMINED HIS CLIENT'S DEFENSE. 

 

II. TRIAL COUNSEL FAILED TO PRESENT A 

DIMINISHED CAPACITY OR INSANITY DEFENSE 

TO THE HOMICIDE CHARGE. 

III. TRIAL COUNSEL WAS INEFFECTIVE BY 

DENYING HIS CLIENT THE OPPORTUNITY TO 

TESTIFY AT THE MIRANDA HEARING. 

IV. TRIAL COUNSEL FAILED TO ASK THE 

TRIAL COURT TO REOPEN THE MIRANDA 

HEARING AFTER DETECTIVE PRACHAR'S 

INCONSISTENT TESTIMONY AT TRIAL. 

V. TRIAL COUNSEL FAILED TO OBJECT TO 

THE STATE'S PREJUDICIAL REMARKS DURING 

CLOSING. 

VI. BECAUSE TRIAL COUNSEL MISLED 

PETITIONER AS TO THE STRENGTH OF THE 

STATE'S CASE, PETITIONER REJECTED THE 

STATE'S PLEA OFFER. 

VII. TRIAL COUNSEL WAS INEFFECTIVE WHEN 

HE ALLOWED THE TRIAL COURT TO 

IMPROPERLY EXCLUDE HIS CLIENT FROM 

CERTAIN PRETRIAL PROCEEDINGS. 

VIII. DEFENSE COUNSEL'S CUMULATIVE 

ERRORS DENIED DEFENDANT A FAIR AND 

RELIABLE TRIAL. 

In defendant's supplemental self-represented brief, she argued: 
6 A-1713-22

I. PETITIONER'S ASSIGNED COUNSEL 

PROVIDED CONSTITUTIONALLY INEFFECTIVE 

ASSISTANCE A[T] TRIAL BY FAILING TO 

EFFECTIVELY CROSS[-]EXAMINE THE 

PROSECUTION WITNESSES. 

II. EVIDENCE SEIZED BY POLICE WITHOUT A 

WARRANT FROM PETITIONER'S POCKETBOOK 

WAS USED AS EVIDENCE DURING HER 

INTERROGATION AND AT TRIAL, INSTEAD OF 

BEING SUPPRESSED, VIOLATING PETITIONER'S 

CONSTITUTIONAL PROTECTION AGAINST 

UNREASONABLE SEARCH AND SEIZURE. 

III. THE STATE'S FAILURE TO TURN OVER TO 

THE DEFENSE THE RESULTS OF THE 

HANDWRITING ANALYSIS ON THE ALLEGED 

SUICIDE NOTE WAS A VIOLATION OF BRADY V. 

MARYLAND.[2] 

In accordance with our opinion, on remand the PCR court heard oral 

argument in December 2022. Following the argument, the PCR court denied 

defendant's petition on January 2, 2023. In its opinion, the court found that 

based on the testimony of defense counsel and defendant at the evidentiary 

hearing, an evidentiary hearing was not warranted. The court further found that 

the dismissal of defendant's ineffective assistance of counsel claims based on 

the alleged inadequate advice in connection with the State's plea offer and the 

failure to present an insanity or diminished capacity defense at trial were 

2

 Brady v. Maryland, 373 U.S. 83 (1963). 
7 A-1713-22

rejected on direct appeal and, therefore, were procedurally barred pursuant to 

Rule 3:22-5.3 

II. 

On appeal, defendant raises the following argument in her counsel's brief: 

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CLAIM THAT TRIAL COUNSEL WAS 

INEFFECTIVE FOR ABRIDGING HER 

CONSTITUTIONAL RIGHT TO TESTIFY AT THE 

MIRANDA HEARING; IN THE ALTERNATIVE, 

THIS MATTER MUST BE REMANDED BECAUSE 

THE PCR COURT FAILED TO STATE 

SEPARATELY ITS FINDINGS OF FACT AND 

CONCLUSIONS OF LAW REGARDING THIS 

CLAIM. 

 In her self-represented brief, defendant argues: 

I. EVIDENCE SEIZED BY POLICE WITHOUT A 

WARRANT FROM DEFENDANT[']S 

POCKETBOOK WAS USED AS EVIDENCE 

DURING HER INTERROGATION AND AT 

TRIAL INSTEAD OF BEING SUPPRESSED 

VIOLATING DEFENDANT[']S 

CONSTITUTIONAL PROTECTION AGAINST 

UNREASONABLE SEARCH AND SEIZURE. 

II. THE STATE WITHHELD EXCULPATORY 

HANDWRITING ANALYSIS RESULTS. 

3

 The court's January 2, 2023 order contains a typographical error and 

incorrectly cites Rule 3:22-25; rather than Rule 3:22-5.
8 A-1713-22

III. TRIAL COUNSEL ASSIGNED PROVIDED 

CONSTITUTIONALLY INEFFECTIVE 

ASSISTANCE AT TRIAL BY FAILING TO 

EFFECTIVELY CROSS-EXAMINE THE 

PROSECUTION WITNESS. 

Our review of a PCR claim after a court has held an evidentiary hearing 

"is necessarily deferential to [the] court's factual findings based on its review of 

live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). Nonetheless, 

we review the legal conclusions of a PCR court de novo. State v. Harris, 181 

N.J. 391, 420 (2004). The de novo standard of review also applies to mixed 

questions of fact and law and when the PCR court does not conduct an 

evidentiary hearing. Ibid. (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d 

Cir. 1999)). 

"[A] prior adjudication on the merits ordinarily constitutes a procedural 

bar to the reassertion of the same ground as a basis for post-conviction review." 

State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-5). The application 

of these standards requires the "'[p]reclusion of consideration of an argument 

presented in [PCR] proceedings . . . if the issue raised is identical or substantially 

equivalent to that adjudicated previously on direct appeal.'" State v. Marshall, 

173 N.J. 343, 351 (2002) (quoting State v. Marshall, 148 N.J. 89, 150 (1997)). 
9 A-1713-22

A PCR claim is based upon the "same ground" as a claim already raised 

by direct appeal when "the issue is identical or substantially equivalent" to the 

issue previously adjudicated on the merits. State v. McQuaid, 147 N.J. 464, 484 

(1997) (internal quotation marks and citations omitted). "Ordinarily, PCR 

enables a defendant to challenge the legality of a sentence or final judgment of 

conviction by presenting contentions that could not have been raised on direct 

appeal." State v. Afandor, 151 N.J. 41, 49 (1997) (citing McQuaid, 147 N.J. at 

482-83).

Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any 

ground for relief is conclusive whether made in the proceedings resulting in the 

conviction or in any post-conviction proceeding . . . or in any appeal taken from 

such proceedings." Therefore, a PCR petition is not "an opportunity to relitigate 

a claim already decided on the merits." McQuaid, 147 N.J. at 483.

Applying these principles, the PCR court correctly determined that the 

remaining issues presented in defendant's PCR petition on remand were 

previously adjudicated on direct appeal. We agree. We considered and rejected 

defendant's arguments related to her state of mind and the waiver of Miranda 

rights. Defendant renewed those arguments in her PCR petition. We also hold
10 A-1713-22

defendant's argument that the State withheld exculpatory handwriting analysis 

was improper under Rule 3:22-4 because it was not raised on direct appeal. 

We are satisfied from our review of the record that defendant failed to 

make a prima facie showing of ineffectiveness of counsel on any of her asserted 

claims. Moreover, we are satisfied the PCR court appropriately concluded 

defendant's remaining PCR claims did not warrant a further evidentiary hearing. 

See Preciose, 129 at 462-63. 

Affirmed.