RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5691-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN E. KILLION,

Defendant-Appellant.

_______________________

Submitted January 19, 2021 – Decided February 17, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 13-03-0720.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Mark Zavotsky, Designated Counsel, on the 

brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (William P. Cooper-Daub, Deputy Attorney 

General, of counsel and on the brief; Sara M. Quigley, 

Deputy Attorney General, 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NOT FOR PUBLICATION WITHOUT THE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.
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A-5691-18

PER CURIAM

Defendant Brian E. Killion appeals from the denial of his petition for postconviction relief (PCR) without an evidentiary hearing. For the reasons that 

follow, we affirm.

A jury convicted defendant of thirty-four counts of a thirty-nine-count 

indictment that charged him with various degrees of sexual assault, endangering 

the welfare of numerous children, and related offenses. On March 27, 2014, the 

trial judge sentenced defendant to an aggregate eighty-five-year prison term, 

subject to an eighty-five percent parole disqualifier under the No Early Release 

Act (NERA), N.J.S.A. 2C:43-7.2. 

Defendant appealed, and in an unpublished opinion we affirmed in part

and reversed in part, dismissing two counts, reversing "the sentencing under 

NERA on three counts, and remand[ing] for resentencing and a further hearing"

regarding two other counts. State v. Killion, No. A-5025-13 (App. Div. April 

26, 2017) (slip op. at 2). Defendant filed a petition for certification, which the 

New Jersey Supreme Court denied on October 10, 2017. State v. Killion, 231 

N.J. 220 (2017). 

After our remand and defendant's resentencing on October 26, 2017, to an

eighty-year aggregate term with forty-five years subject to NERA, defendant 
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appealed again but this time limited it to his sentence. An Excessive Sentence 

Panel of this court affirmed. State v. Killion, No. A-2747-17 (App. Div. June 

4, 2018). 

The facts underlying defendant's convictions are set forth in our opinion 

on direct appeal and need not be repeated here. See Killion, slip op. at 2-11.

For our purposes, we only note that on direct appeal, appellate counsel raised 

eight issues in his merits brief, four additional arguments in the reply brief, and 

his submissions were supplemented by defendant's pro se brief that addressed 

five additional issues. Among the issues raised by appellate counsel were an 

argument that the trial judge did not adequately cure comments by the prosecutor

that "portrayed the defendant and his trial attorney as liars" and a challenge to 

the sufficiency of the evidence that supported defendant's conviction under the 

indictment's fourth count. Among the issues raised by defendant in his appellate 

pro se supplemental brief was a challenge to the jury charge that defendant 

claimed was "erroneous," "not legally accurate," or "factually . . . supported by 

the evidence."

Defendant filed a PCR petition on August 1, 2018, in which he argued he 

received ineffective assistance of counsel (IAC) at trial and on appeal. He also 
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raised arguments about his search and seizure rights being denied and the trial 

judge's failure to "recuse himself." 

As to appellate counsel, he contended that his attorney failed to raise 

issues about comments made by the prosecutor during closings about defendant 

not testifying and about "Brady and discovery violations." He also argued that 

appellate counsel "did not adequately communicate with" defendant, failed to 

spend any time with him or accept his telephone calls, or "address any of 

[d]efendant's concerns" or even "learn [d]efendant's name." In addition, he 

stated that appellate counsel failed to pursue defendant's request to adjourn a 

June 4, 2018 "hearing" so that he could discuss "strategy" with counsel. As to 

trial counsel, while defendant raised numerous issues, they were unrelated to his 

claims against appellate counsel or those he raises before us on appeal from the 

denial of PCR. 

In an amended petition and brief filed on defendant's behalf, defendant

added that his appellate counsel "failed to argue that the trial judge erred by 

denying [defendant's] motion for a mistrial following the prosecutor's closing 

argument" based upon "the prosecutor wholly undermin[ing] the presumption of 

innocence and the right to post-arrest silence." For that reason and those stated
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by defendant in his earlier submission, PCR counsel argued that defendant was 

entitled to a new trial. 

Judge Benjamin Podolnick entered an order filed on June 18, 2019, 

denying defendant's petition without an evidentiary hearing. The judge 

explained his reasons in a comprehensive eighteen-page letter opinion that 

accompanied his order. This appeal followed 

On appeal, defendant raises the following arguments:

POINT I

DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF APPELLATE COUNSEL WHEN 

COUNSEL FAILED TO APPEAL PROSECUTORIAL 

MISCONDUCT ON THE COMMENTS REGARDING 

DEFENDANT'S PRESUMPTION OF INNOCENCE 

AND DEFENDANT'S CONSITUTIONAL RIGHT TO 

REMAIN SILENT.

A. APPLICABLE LAW.

B. APPELLATE COUNSEL WAS 

INEFFECTIVE FOR FAILING TO APPEAL 

DEFENDANT'S MOTION FOR A MISTRIAL 

BASED UPON COMMENTS MADE BY THE 

PROSECUTOR REGARDING HIS PRESUMPTION 

OF INNOCENCE.

C. APPELLATE COUNSEL WAS 

INEFFECTIVE FOR FAILING TO APPEAL 

DEFENDANT'S MOTION FOR A MISTRIAL 

BASED UPON COMMENTS MADE BY THE 
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PROSECUTOR REGARDING HIS 

CONSTITUTIONAL RIGHT TO REMAIN SILENT.

In a supplemental brief defendant filed directly, he adds the following 

points:

POINT I

INEFFECTIVE ASSISTANCE OF COUNSEL 

DENIED DEFENDANT HIS CONSITUTIONAL 

RIGHTS TO A FAIR TRIAL AND EFFECTIVE 

COUNSEL.

INEFFECTIVE ASSISTANCE OF COUNSEL DUE 

TO FAILURE TO ARGUE A CONFUSING, 

INCONSISTENT AND CONTRADICTORY JURY 

CHARGE THAT VIOLATED DEFENDANT'S 

RIGHTS REQUIRING A NEW TRIAL. (NOT 

RAISED BELOW).

APPELLATE ATTORNEY WAS INEFFECTIVE 

DUE TO FAILURE TO RECOGNIZE AND ARGUE 

THE STATE'S FAILURE TO MEET ITS BURDEN OF 

PROOF OF GUILT BEYOND REASONABLE 

DOUBT. (NOT RAISED BELOW).

POINT II

NEWLY DISCOVERED EVIDENCE REQUIRES A 

NEW TRIAL.

POINT III

PCR COUNSEL FAILED TO MEET THE 

STANDARD SET BY R. 3:22-6(d).
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We are not persuaded by any of defendant's contentions about appellate 

counsel; as to the balance of these arguments, we conclude that they are not 

properly before us as they were not raised before the PCR judge or are not 

cognizable in a first petition for PCR, or they are without any merit. 

We review de novo an appeal from the denial of PCR without an 

evidentiary hearing. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 

2014). As a reviewing court, we "can conduct a de novo review of both the 

factual findings and legal conclusions of the PCR court . . . [because] [a]ssessing 

IAC claims involves matters of fact, but the ultimate determination is one of 

law." State v. Harris, 181 N.J. 391, 419 (2004). 

"The standard for an ineffective assistance of counsel claim is . . . the 

same under both the United States and New Jersey Constitutions." State v. 

Gideon, __ N.J. __, __ (2021) (slip op. at 14-15). To establish a violation of the 

right to the effective assistance of counsel, a defendant must meet the two-part 

test articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted 

in State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that 

counsel's performance was deficient. . . . Second, the defendant must show that 

the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
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To meet the first prong, a defendant must show "that counsel made errors 

so serious that counsel was not functioning as the 'counsel' guaranteed . . . by 

the Sixth Amendment." Ibid. Reviewing courts indulge in a "strong 

presumption that counsel's conduct falls within the wide range of reasonable 

professional assistance." Id. at 689. The second prong of the Strickland/Fritz

test requires the defendant to show that counsel's errors created a "reasonable 

probability" that the outcome of the proceedings would have been different if 

counsel had not made the errors. Strickland, 466 U.S. at 694.

The Strickland/Fritz two-pronged standard also applies to claims of 

ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super.

508, 513 (App. Div. 2007). The hallmark of effective appellate advocacy is the 

ability to "winnow[] out weaker arguments on appeal and focus[] on one central 

issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 

751-52 (1983). A brief that raises every colorable issue runs the risk of burying 

good arguments in a "verbal mound made up of strong and weak contentions."

Id. at 753. Importantly for purposes of this appeal, it is well-settled that failure 

to pursue a meritless claim does not constitute ineffective assistance. State v. 

Webster, 187 N.J. 254, 256 (2006). Appellate counsel has no obligation to raise 

spurious issues on appeal. Ibid.
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With these guiding principles in mind, we turn to defendant's contention 

about appellate counsel's IAC for his failure to appeal from the denial of trial 

counsel's motion for a mistrial that was based on two comments made by the 

prosecutor during summation. One comment allegedly regarded his 

presumption of innocence and the other his right to remain silent. Defendant 

argues that had the issue been raised on direct appeal then a further review could 

have been conducted under the plain error standard, which he maintains he 

would have met. We disagree. 

At trial, following closing arguments, defense counsel moved for a 

mistrial based on the two allegedly improper statements made by the prosecutor. 

The trial judge denied the motion and agreed to give curative instructions. 

In the first statement, the prosecutor did not expressly mention defendant 

not testifying but addressed the numerous years over which defendant 

committed his crimes. In doing so, she stated that defendant "thinks he's smart 

because he's gotten away with this for [sixteen] years, but he's not that smart 

because he's sitting right there." The trial judge denied the motion for a mistrial 

but issued a curative instruction that stated the following:

You may have heard a reference made during closings,

something about the defendant can't be considered 

smart because he's sitting here, and I'm telling you that's 

an improper comment and you shouldn't consider that, 
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the defendant has no burden to present anything to you 

whatsoever. He need not answer the charge in any way. 

The fact that he's here in court is as a result of the 

indictment, and I told you about the indictment, it's a 

charging document requiring him to answer the charges 

made by the State. So you're not to conclude in any 

way that he must therefore be guilty because he's here 

in court, or he somehow did something wrong just 

because he's been charged. It's for you to determine 

whether or not he's guilty of the offenses charged based 

only upon the evidence. 

On PCR, Judge Podolnick reviewed the comment, agreed it was improper,

and considered the law applicable to prosecutorial misconduct, but found in light 

of the trial judge's curative instruction that "no prejudice existed to [defendant] 

once this curative instruction was delivered." 

The second challenged comment made by the prosecutor during 

summation related to an intercepted telephone call between the mother of one 

of the victims and defendant. The prosecutor stated "sure [the mother] told him 

off that night, and what did she tell us, and she was the only one who talked 

about the phone call and she told us [defendant] said whatever [the victim] said 

I did, I did." The trial judge denied the motion for a mistrial but gave the 

following curative instruction: 

[Y]ou may have heard a comment made during closing 

arguments regarding the only evidence or testimony 

you heard about the consensual [call] from [the victim's 

mother] and no one else, and perhaps you might then 
11 A-5691-18

conclude why didn't we hear from the other person on 

the consensual [call] which allegedly is the defendant. 

Again, the defendant has no obligation to say or do 

anything here today, and that was an improper comment 

and I'm going to ask you to disregard it in its entirety, 

and I'm going to give you instructions about how you 

may not use the defendant's decision not to testify 

against him in any way, and pay close attention to that 

instruction when I'm giving it to you in just a few 

moments in the charge. 

The trial judge's final charge to the jury also included the Model Jury 

Charge as to defendant's election to not testify at trial.

1

On PCR, Judge Podolnick noted that "it is clear from the transcript that 

once the objection was made by defense counsel, the trial judge did not believe 

that the prosecutor was attempting to comment on the defendant's right to 

silence." Rather, the trial judge believed the statement was a direct response to 

defense counsel's argument that the victim's mother had misrepresented the 

nature of the call with defendant. The PCR judge observed that "it [was] quite 

possible that the prosecutor was merely stating a fact and not intending to 

comment on the defendant's right to silence." Judge Podolnick concluded that 

insofar as the prosecutor's remarks on summation had any potential to prejudice 

defendant, the trial judge's curative instructions eradicated that potential. 

1

 Model Jury Charges (Criminal), "Defendant's Election Not to Testify" (rev. 

May 4, 2009).
12 A-5691-18

Judge Podolnick also concluded that the outcome of the proceedings 

would not have been different but for appellate counsel's decision to forgo the 

issues on direct appeal. He concluded that even if appellate counsel raised the 

issue, we "would have had no basis to overturn [defendant's] conviction on

appeal." According to the PCR judge, defendant had "not shown that the 

outcome of the proceedings would have been different but for appellate 

counsel's decision not to raise this issue on direct appeal. The [c]ourt thus finds 

that appellate counsel was not ineffective for failing to raise this issue on direct 

appeal." 

Based on this record, we conclude from our de novo review that defendant 

failed to make a prima facie showing of ineffectiveness of counsel within the 

Strickland/Fritz test, substantially for the reasons expressed by Judge Podolnick 

in his thorough decision. Accordingly, the judge also correctly concluded that 

an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 

462-63 (1992).

Turning to defendant's argument that appellate counsel did not raise an 

issue on appeal about his conviction under the indictment's fourth count, we 

conclude his contention is belied by the record, as that issue was in fact raised 

and we rejected it in our earlier opinion. See Killion, slip op. at 14, 17-20. 
13 A-5691-18

Moreover, as to defendant's arguments relating to jury instructions and newly 

discovered evidence, we conclude they are not subject to our review as 

defendant failed to raise them before the PCR judge. See State v. Robinson, 200 

N.J. 1, 20 (2009). And, as to his contention about PCR counsel's alleged IAC,

such claims are better addressed in a second petition under Rule 3:22-6(d). State 

v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 

N.J. 1, 4 (2002)).

To the extent we have not otherwise specifically addressed any of 

defendant's remaining arguments, we conclude they are without sufficient merit

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

Affirmed.