RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3153-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.J.A.-B.,

Defendant-Appellant.

__________________________ 

Submitted May 18, 2020 – Decided June 8, 2020

Before Judges Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Indictment No. 12-06-0716.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Kristofher Ray Dayawoh Beralo, Designated 

Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney 

for respondent (Tiffany M. Russo, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant M.J.A.-B.1appeals from a January 9, 2019 Law Division order 

denying his petition for post-conviction relief (PCR) without an evidentiary 

hearing. We affirm.

I.

In June 2012, a Morris County Grand Jury returned an indictment charging 

defendant with twenty counts of first-degree aggravated sexual assault; seven 

counts of first-degree sexual assault; three counts of second-degree sexual 

assault; and five counts of second-degree endangering the welfare of a child. 

The charges alleged defendant repeatedly sexually assaulted his two adolescent 

daughters over the course of nine years. 

In April 2013, defendant pleaded guilty to one count of first-degree 

aggravated sexual assault and one count of second-degree sexual assault in 

exchange for a sentencing recommendation of an aggregate consecutive prison 

term of fifteen to twenty years and dismissal of the remaining charges. 

At the plea hearing, defendant provided a detailed factual basis for his 

plea. He admitted that on several occasions between August 4, 1999 and August 

 

1

 We refer to the defendant and the victims by initials to protect the victims' 

privacy. R. 1:38-3(c)(9).
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2, 2002, he sexually assaulted his daughter, K.A.,2 who was then less than 

thirteen years old. Defendant also admitted that on several occasions between 

November 15, 2004 and November 14, 2008, he sexually penetrated his other 

daughter, J.A., who was then between the ages of thirteen and sixteen. 

The plea judge asked defendant, "[d]id you commit the offenses to which 

you are pleading guilty," to which he responded, "[y]es." When asked if he 

understood "what the charges mean," defendant responded, "[y]es." Defendant 

also acknowledged that he was waiving his "right to have a jury trial," "remain 

silent," and "confront witnesses against" him. Finally, defendant affirmed that 

he had sufficient time preparing with his attorney; she answered all of his 

questions to his satisfaction; and he was "[v]ery satisfied" with her services. 

The plea judge found defendant entered the pleas freely and voluntarily 

without threats, outside promises or inducements. He further found defendant 

provided a factual basis for the pleas and understood "the nature of the charges

[and] the consequence of the plea." 

On August 22, 2013, defendant was sentenced in accordance with the plea 

agreement to a thirteen-year prison term for the first-degree sexual assault, 

 

2

 We refer to the defendant and the victims by initials to protect the victims' 

privacy. R. 1:38-3(c)(9).
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subject to the parole ineligibility and mandatory parole supervision requirements 

of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole supervision 

for life, N.J.S.A. 2C:43-6.4, and compliance with Megan's Law, N.J.S.A. 2C:7-

2. Defendant was sentenced to a consecutive seven-year NERA term for the 

second-degree sexual assault, subject to community supervision for life,3

N.J.S.A. 2C:43-6.4, and Megan's Law. Defendant was also ordered to pay 

appropriate fines and assessments. 

In reaching this decision, the sentencing judge found aggravating factors

three (risk of re-offense) and nine (need for deterrence). N.J.S.A. 2C:44-1(a)(3), 

(9). He also found mitigating factor seven (no history of prior delinquency or 

criminal activity or has led a law-abiding life for a substantial period) but "put 

little weight on it." N.J.S.A. 2C:44-1(b)(7). The judge determined the 

aggravating factors "substantially preponderate over the mitigating factor." 

Regarding consecutive sentencing, the judge concluded this "is certainly 

not a case where it would be appropriate to run [defendant's sentences]

concurrent." He noted "there were two separate victims" and each "suffered 

 

3 Defendant was sentenced to community supervision for life for his crimes 

against K.A. because they occurred prior to the effective date of a 2003 

amendment to N.J.S.A. 2C:43-6.4 that replaced community supervision for life 

with parole supervision for life. State v. Perez, 220 N.J. 423, 429, 437 (2015)

(citing L. 2003, c. 267, §§ 1, 2 (eff. Jan. 14, 2004)).
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significant injuries at the hand of the defendant. Moreover, as admitted by 

[defendant], this was not one act of abuse, but rather an abuse that took place 

over a number of years, and on repeated occasions." 

Defendant appealed his sentence before an Excessive Sentence Oral 

Argument calendar (ESOA) pursuant to Rule 2:9-11. Appellate counsel argued 

that the sentencing court should have considered mitigating factor four, claiming 

there were substantial grounds tending to excuse defendant's conduct. He also 

contended defendant's crimes were the product of a sexual compulsion that he

was unable to control and asserted that the sentencing judge erred by giving 

mitigating factor seven minimal weight even though defendant had no prior 

record. Appellate counsel advocated that the aggregate sentence should have 

been fifteen years if the mitigating factors were properly considered and 

weighted. 

Appellate counsel further argued that the sentences should have run 

concurrently rather than consecutively because sexual compulsion drove 

defendant to commit the offenses; the crimes were committed during the same 

approximate time period; and each crime had the same objective. We affirmed 

the sentence, finding it was "not manifestly excessive," "unduly punitive," nor 

"an abuse of discretion." 
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On June 6, 2018, defendant filed a pro se petition for PCR and later 

supplemented it with a certification, all of which were incorporated into his 

appointed PCR counsel's brief. Defendant claimed trial counsel was ineffective 

because she: (1) failed to effectively argue against the illegal aspects of his 

sentence; (2) did not provide him with full discovery; (3) visited with him only 

four times; (4) did not properly investigate his case; and (5) advised him that he 

would "likely get a [fifteen-year] term or a concurrent sentence." Defendant 

claimed appellate counsel was ineffective because he "did not address the 

ineffective claims and violations of [defendant's] rights at the trial level" and 

"failed to effectively argue against the illegal aspects of [defendant's] sentence." 

Judge Thomas J. Critchley, Jr. presided over the PCR proceeding. 

Following oral argument, he issued an oral decision and order denying PCR 

without an evidentiary hearing. The judge carefully reviewed the plea 

agreement, plea hearing, and defendant's certification. He found no evidence 

that trial or appellate counsel's "performance was deficient in any objective 

way." The judge rejected defendant's claims that counsel failed to properly 

investigate the case or review discovery. The judge concluded the evidence 

against defendant was substantial and that additional investigation would not 

have changed the outcome of the case. 
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The judge found defendant's testimony during the plea hearing—that he 

was satisfied with trial counsel's efforts—to be credible and noted "defendant 

actually complimented her for her performance." The judge also noted that even 

if it were assumed that counsel's performance was in some way ineffective, there 

was no evidence in the record that, but for counsel's errors, the result of the 

proceeding would have been different. 

Regarding defendant's consecutive sentences, Judge Critchley found that 

the sentencing court "fashioned a sentence within the allowable range of the Plea 

Agreement." He noted that defendant's crimes against separate victims 

supported imposition of consecutive sentencing, as did the number of incidents, 

which occurred over a period of years. The judge concluded that there was no 

factual or legal support for the argument that defendant's sentence was 

"internally inconsistent." 

This appeal followed. Defendant raises the following points for our 

consideration:

POINT ONE

THE DEFENDANT'S CLAIMS ARE NOT BARRED 

BY THE PROVISIONS OF [RULE] 3:22 AS THEY 

ASSERT CONSTITUTIONAL ISSUES ARISING 

UNDER THE STATE AND FEDERAL 

CONSTITUTION.
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POINT TWO

THE COURT ERRED IN NOT ALLOWING THE 

DEFENDANT AN EVIDENTIARY HEARING OR 

GRANTING HIS APPLICATION FOR POSTCONVICTION RELIEF.

POINT THREE

THE COURT'S RULING DENYING POSTCONVICTION RELIEF SHOULD BE REVERSED 

BECAUSE THE DEFENDANT DID NOT RECEIVE 

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Was Ineffective Due to Her 

Failure to Investigate.

B. Trial Counsel Failed to Consult with the 

Defendant in a Meaningful Manner.

POINT FOUR

THE COURT'S RULING DENYING POSTCONVICTION RELIEF VIOLATED THE 

DEFENDANT'S RIGHT TO EFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL 

GUARANTEED BY THE SIXTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND 

ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY 

CONSTITUTION.

II.

We review de novo the PCR court's factual findings made without an 

evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no 

deference to the trial court's conclusions of law. Ibid. Applying this standard 
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of review, we find no merit in defendant's arguments and affirm substantially 

for the cogent reasons expressed by Judge Critchley in his comprehensive 

January 9, 2019 oral decision. We add the following comments.

We apply the familiar two-pronged Strickland standard to determine 

whether defendant has shown that (1) his counsel's performance was so deficient 

that it "fell below an objective standard of reasonableness," and (2) there was "a 

reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Strickland v. Washington, 466 U.S. 

668, 688, 694 (1984); accord State v. Fritz, 105 N.J. 42, 49-50 (1987) (adopting 

the Strickland standard in evaluating ineffective assistance of counsel claims). 

When a guilty plea is involved, a defendant must satisfy two criteria to set 

it aside due to ineffective assistance of counsel. State v. Nuñez-Valdéz, 200 

N.J. 129, 139 (2009). The defendant must demonstrate that "(i) counsel's 

assistance was not 'within the range of competence demanded of attorneys in 

criminal cases'; and (ii) 'that there is a reasonable probability that, but for 

counsel's errors, [the defendant] would not have pled guilty and would have 

insisted on going to trial.'" Ibid. (alteration in original) (quoting State v. 

DiFrisco, 137 N.J. 434, 457 (1994)); accord Hill v. Lockhart, 474 U.S. 52, 59 
10 A-3153-18T3

(1985). "A reasonable probability is a probability sufficient to undermine the 

confidence in the outcome." Strickland, 466 U.S. at 694. 

Defendant bears the burden to establish a prima facie case for PCR. State 

v. Gaitan, 209 N.J. 339, 350 (2012). We consider defendant's "contentions 

indulgently and view the facts asserted . . . in the light most favorable to him." 

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). However, we 

require a petitioner to state "with specificity the facts upon which the claim for 

relief is based." R. 3:22-8. "[A] petitioner must do more than make bald 

assertions that he was denied the effective assistance of counsel. He must allege 

facts sufficient to demonstrate counsel's alleged substandard performance." 

Cummings, 321 N.J. Super. at 170. 

Judge Critchley's findings are fully supported by the record and his

conclusions are consistent with applicable legal principles. Trial counsel 

informed defendant that she was not promising him that he would receive less 

than a twenty-year prison term. Defendant was then informed at the plea hearing 

that his guilty plea would result in consecutive sentences and up to twenty years 

imprisonment subject to parole ineligibility under NERA. The plea judge made 

clear that "there is no guarantee that you will get less" than a twenty-year 

sentence. Despite that knowledge, defendant stated under oath that he 
11 A-3153-18T3

understood, wanted to proceed, and was sentenced in accordance with the plea 

agreement. 

We are unpersuaded by defendant's remaining ineffective assistance of 

trial counsel claims. Defendant was facing thirty-five counts charging numerous 

first and second-degree crimes. The evidence against him was substantial. The 

record amply supports Judge Critchley's conclusion that even if trial counsel's 

performance was somehow deficient, defendant failed to satisfy the second 

prong of Strickland. 

Defendant's claim of ineffective assistance of appellate counsel is also 

without merit. Defendant's sentence on each count fell within the ranges 

permitted under the Criminal Code and were not illegal. Only an illegal sentence 

that exceeds the maximum penalty allowed by the Code or that is not in 

accordance with law is cognizable on PCR. Pressler & Verniero, Current N.J. 

Court Rules, cmt. 3 on R. 3:22-2 (2020) (citing State v. Acevedo, 205 N.J. 40, 

45, 47 (2011)); see also State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 

1988) (claim of excessive sentencing not cognizable in PCR proceeding). 

Moreover, as we have noted, appellate counsel raised several sentencing issues 

on direct appeal, which we considered but still affirmed. See R. 3:22-5 ("A prior 

adjudication upon the merits of any ground for relief is conclusive . . . ."). 
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As to defendant's argument that appellate counsel should have raised trial 

counsel's alleged ineffectiveness, those claims "are more appropriately raised in 

collateral, post-conviction relief proceedings" rather than on direct appeal, 

"'because such claims involve allegations and evidence that lie outside the trial 

record.'" State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003) (quoting 

State v. Preciose, 129 N.J. 451, 460 (1992)). Such was the case here, making it 

an improvident argument for appellate counsel to raise on direct appeal. 

Defendant claims the PCR judge erred by denying his petition without an 

evidentiary hearing. We disagree. A defendant is entitled to an evidentiary 

hearing only upon establishing a prima facie case in support of PCR. R. 3:22-

10(b). "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." Ibid.; 

see also Preciose, 129 N.J. at 463. This requires satisfying both prongs of the 

Strickland test. 

Judge Critchley properly concluded that defendant did not establish a 

prima facie case for PCR because he could not satisfy the second prong of the 

Strickland test. Accordingly, he correctly determined that an evidentiary 

hearing was not required. 
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Defendant's remaining arguments are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed.