### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- Respondent,

v. HEATHER LEWIS, Defendant

- Appellant.

___________________________

Submitted December 16, 2019

– Decided Before Judges Sabatino and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10

- 12

- 1301. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Scott A. Coffina, Burlington County Prosecutor, attorney for respondent ( Alexis R. Agre, Assistant Prosecutor, of counsel and 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 PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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.

January 29, 20202 A

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Defendant Heather Lewis appeals from a Law Division order denying h er petition for post

- conviction relief (PCR) without an evidentiary hearing. Having reviewed the record co nsidering the applicable legal standards, w e affirm substantially for the reasons set forth by J udge Terr e nce R. Cook in h is well

reasoned written decision. I

. The procedural history and trial evidence are detailed in our unpublished decision affirming def endant's conviction on direct appeal, State v. Melia , Nos. A

- 1403

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- 12, (App. Div. Aug. 3, 2015) , and in Judge Cook's written decision . A brief summary of the relevant facts and proceedings will suffice here. Over numerous occasions between 200 2 and 2008, Robert S. Melia , Jr. and defendant (collectively defendants) , who were romantically involved, sexually assaulted three minor female s, nieces of a man with whom defendant had a previous relationship. Additionally, i n 2007, defendant sexually assaulted a fourteen

- year - old boy , who was related to one of the female victims. Execution of search warrants at Melia's house uncovered videos o n his computer depicting some of the sexual abuse committed by defendants

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Following a ten

- day trial, a jury found defendants guilty of numerous counts of sexual

- assault and related offenses. Specifically, defendant was convicted of four counts of first

- degree aggravated sexual assault while aided and abetted, N.J.S.A. 2C:14

- 2(a)(5) ; two counts of first

- degree aggravated sexual assault on a victim who was physically helpless, N.J.S.A. 2C:14

- 2(a)(7); four counts of second

- degree sexual assault using physical force, N.J.S.A. 2C:14

- 2(c)(1) ; three counts of second

- degree sex ual assault on a victim at least thirteen but less than sixteen year old, N.J.S.A. 2C:14

- 2(c)(4); three counts of third

- degree endangering the welfare of a child, N.J.S.A. 2C:24

- 4(a) ; third

degree invasion of privacy by filming intimate parts, N.J.S.A. 2C: 14

- 9(b); two counts of third

- degree aggravated criminal sexual conduct, N.J.S.A. 2C:14

- 3(a) ; and five counts of fourth

- degree criminal sexual conduct, N.J.S.A. 2C:14

- 3(b)

. After merger and concurrent sentences , defendant was sentenced to an aggregate
twen ty

- year prison term subject to the No Early Release Act, N.J.S.A. 2C:43

- 7 , and a consecutive five

- year sentence for invasion of privacy. 1 Defendant 's petition for certification was denied. State v. Lewis , 223 N.J. 558 (2015)

. Over a year later, defendant filed for PCR alleging h er trial counsel was ineffective because he failed to: (1) file a severance motion; (2) file a brief in

1 Co

- defendant Melia received the same sentence.4 A

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support of Melia's suppression motion and did not adequately argue at the motion's hearing ; (3) ade quately conduct pre

- trial investigation and consult with her prior to trial ; and (4) file a motion for a new trial because the weigh t of the evidence did not support the verdict. Judge Cook , who was not the tri a l judge, denied relief without an evidentiary hearing. II

. In this appeal , defendant presents the following argument s : THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA F A CIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO MOVE FOR A SEVERANCE FROM HER CO

- DEFENDANT AND FAILING TO CONDUCT AN ADEQUATE INVESTIGATION AND TO CONSULT WITH HER

. A. Trial Counsel Failed To Move For A Severance From The Co

- defendant

. B

. Trial Counsel Failed To Conduct An Adequate Investi gation And To Consult With Defendant. Applying the well

- recognized two

- prong test to establish ineffectiveness of counsel, Strickland v. Washington , 466 U.S. 668, 687 (1984) and State v. Fritz , 105 N.J. 42, 58 (1987), Judge Cook properly found defendant f ailed to establish a prima facie PCR claim that: (1) trial counsel's performance was5 A

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deficient and (2) the deficient performance prejudiced the defense. We also agree with t he judge 's conclusion that consequently , defendant was not entitled to an evidentiary hearing. State v. Preciose , 129 N.J. 451, 462 (1992). Our reasoning follows. A. Motion to Sever Trial Defendant contends the judge erred in his analysis that counsel was not ineffective for seeking a separate trial from Melia

. She asserts trial severance
was necessary because her def ense was antagonistic to Melia's defense because the "overwhelming bulk of [the State's] testimony " related to him ; there by

caus ing her undue prejudice

. We disagree , as Judge Cook made the right call that severance would not have been proper

. Judge Cook found separate trial s for defendants w as not appropriate under State v. Sanchez , 143 N.J. 273, 282 (1996) (holding a joint trial is preferred where the State's evidence agains t the defendants is common ) and State v. Coleman , 4 6 N.J. 16, 24 (1965) (holding the potential prejudice to the defendant's due process rights must be balance d against judicial economy of a joint trial)

. The judge explained that given defendants' common defense strategy

– the victims, instigated by one of the victims and her stepfather, fabricated their allegations

– severance for separate trials would have undermined th eir strategy
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Because the victims' testimony and the video evidence applied a gainst both defendants , the judge noted , "[t] wo separate trials would have been a waste of judicial resources , an inconvenience to witnesses and the victims, could have resulted in inconsistent verdicts and would have prevented a r eliable assignment of cu lpability. " Therefore, trial counsel was not deficient , and defendant did not satisfy the first Strickland prong . W e also agree with the judge's determination that the second prong of Strickland was not satisfied because defendant failed
t o offer any "facts in support of her contention that she was prejudiced by the " join t trial. We further add that since a motion to sever would have been unsuccessful,
t rial counsel can not be ineffective for failing to raise a losing argument. State v. Echols , 199 N.J . 344, 360

- 61 (2009). B. Inadequate Investigation/ Not Consult with Defendant Defendant asserts Judge Cook "did not address [her] general claim of inadequate investigation and lack of consultation regarding discovery." She contends trial counsel failed to conduct an adequate investigation to formulate a defense strategy and failed to review discovery with her, thus preventing her from being able to participate in her defense

. We again disagree

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In recognizing the deference afforded to trial counsel's decision s concerning the witnesses to present and the "art" involving such choice , State v. Arthur , 184 N.J. 307, 321 (2005) , Judge Cook found defendant's argument was hollow. The judge reasoned defendan t ma de a bald assertion of failure to investigate because she

provides no names, affidavits or anything else to support her allegation that there were witnesses who could have testified on her behalf. T here is also nothing to suggest that a n y unnamed witnesses would have been available or amenable to testifying on [her] b e half. The judge further noted the victims' testimony and video evidence "was too overwhelming for any potential witness to change the outcome" of the guilty verdict. We discern no fault in th is analysis. See State v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999) ( explaining there must be more than bald allegations of counsel's substandard investigation ; the defendant's PCR petition lacked supporting affidavits setting forth personal knowledge of what a more thorough investigation would have revealed ). Be cause defendant failed to establi sh a prima facie case of counsel ineffectiveness, it was appropriate to deny her an evidentiary hearing. Preciose , 129 N.J. at 462. To the extent we have not discussed them expressly, all other8 A

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arguments raised by defendants lack sufficient merit to warrant discussion. R. 2:11

- 3(e)(2). Affirmed.