SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3264- 21 STATE OF NEW JERS EY, Plaintiff-Respondent,

v. TODD STATHUM, a/k/a TODD PAESON, Defendant-Appellant.

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Submitted November 13, 2023

– Decided December 1, 2023 Before Judges Gilson and Berdote Byrne. On appeal from the Superior Court of New Jersey, La w Division, Monmouth County, Indictment No. 14

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- 1235. Joseph E. Krakora, Public Defender, attorney for ap pellant (Steven M. Gilson, Designated Counsel, on the brief ). Matthew J. Platkin, Attorney General of New Jersey, attorney for respondent (Lila Bagwell Leonard, Deputy Attorn ey General, of counsel and on the brief). Appellant filed a pro se supplemental 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3264

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Defendant, Todd Stathum, appeals from an October 21 , 2021 order denying his petition for post-conviction relief (PC R), arguing the trial court erred in failing to provide him with an evidentiary hearing. We affirm for the reasons expressed in the well-reasoned, fourteen-pa ge, written opinion of the Honorable Michael A. Guadagno.
I. In 2014, a Monmouth County grand jury indicted defe ndant for two counts first-degree armed robbery, contrary to N.J.S.A. 2C :15-1, and two counts fourthdegree possession of an imitation weapon for an unl awful purpose, contrary to N.J.S.A. 2C:39-4(e). The charges related to two se parate armed robberies occurring in the City of Long Branch: one at a Monm outh gas station (the Monmouth Gas robbery), and another at LaCita grocer y store (the LaCita robbery). When defendant was arrested, he admitted he committ ed both the Monmouth Gas and the LaCita robberies. While givin g his statement concerning the two robberies, the police asked defe ndant about a recent third robbery, which occurred in Shrewsbury. Every time defend ant was asked about the Shrewsbury robbery, he repeatedly denied his in volvement.3 A- 3264

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After trial, a jury convicted defendant on one coun t of first-degree armed robbery and one count of fourth-degree possession o f a weapon for an unlawful purpose relating to the LaCita robbery, but the jur y was unable to reach a verdict on the remaining two counts relating to the Monmout h Gas robbery. Facing retrial, defendant instead pleaded guilty to the re maining two counts and received an aggregate sentence of twenty years in p rison, subject to the No Early Release Act (NERA). 1 After a direct appeal, defendant was resentenced to virtually the same sentence on remand. He then fil ed a PCR petition, asserting numerous claims of ineffective assistance of counse l.
II. Defendant argues the PCR court erred in denying him an evidentiary hearing and improperly found he failed to demonstra te a prima facie case of ineffective assistance of counsel. As noted by Jud ge Guadagno, "many of defendant's claims do not allege ineffective assist ance of counsel but rather challenge trial court rulings (admission of hearsay ; admission of evidence that defendant was suspected in another robbery, used he roin, and owed court fees; denial of severance motion; barring testimony of wi tnesses; denial of motion fo r a mistrial; admission of a photo array)." We agree . Defendant fails to present

1 N.J.S.A. 2C:43-7.2.4 A- 3264

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a cognizable claim for PCR relief pursuant to Rule 3:22 because he either raised the same claims in his previous direct appeal or co uld have raised them in that appeal. Wi th respect to the remaining claims, to establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test: (1) "counsel made errors so serious that counsel was no t functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[,]" and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984) (quoting U.S. Const. amend. VI); State v . Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two -prong test in New Jersey). On petitions brought by a defendant who has entered a guilty plea, defendant satisfies the first Strickland prong if h e can demonstrate counsel's representation fell short of the prevailing norms o f the legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010). The defe ndant proves the second prong of Strickland by establishing "a reasonable p robability" the defendant "would not have [pleaded] guilty," but for counsel's errors . State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nu n ͂ ez -Valdéz, 200 N.J. 129, 139 (2009)). Even if unable to obtain immediate relief, a defend ant may seek to show an evidentiary hearing is warranted to develop the factual record in connection5 A- 3264

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with an ineffective assistance claim. State v. Pre cio se , 129 N.J. 451, 462-63 (1992). However, the PCR court should grant an evi dentiary hearing only where: (1) a defendant is able to prove a prima fa cie case of ineffective assistance of counsel, (2) there are material issue s of disputed fact that must be resolved with evidence outside of the record, and (3) the he aring is necessary to resolve the claims for relief. Preciose, 129 N.J. at 462; R. 3:22 -10(b); see State v. Porter, 216 N.J. 343, 354 (2013). Pursuant to Strickland, defendant fails to satisfy his burden to show trial counsel's performance was deficient or he suffered prejudice. We agree with Judge Guadagno that trial counsel's consent to the introduction of a sanitized statement regarding the Shrewsbury robbery cannot p rovide the basis for an ineffective assistance of counsel claim because on direct appeal we found no abuse of discretion in the admission of the stateme nt, and we found no substantive error occurred as the jury heard defend ant consistently deny any involvement in the Shrewsbury robbery. Moreover, c ounsel objected to the evidence at trial. As noted by Judge Guadagno:

In fact, after initially consenting to the sanitize d version, trial counsel, apparently following defend ant's request, objected when the prosecution attempted to admit evidence relating to the Shrewsbury robbery. Even assuming counsel should not have initially urg ed consent to the sanitized version, there is no showi ng6 A- 3264

- 21 that the outcome would have been different or that defendant suffered prejudice by counsel's action s. Because defendant did not demonstrate a prima facie showing of ineffective assistance of counsel, Judge Guadagno p roperly denied defendant an evidentiary hearing. The judge's findings are soun d, and his legal conclusions

are correct. Affirmed.