SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2125-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY CLIFF SMITH, a/k/a

JERRY JOHNSON,

Defendant-Appellant.

___________________________

Submitted October 31, 2018 – Decided November 26, 2018

Before Judges Currier and Mayer.

On appeal from Superior Court of New Jersey, Law 

Division, Mercer County, Indictment No. 02-10-1409.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney

for respondent (Monica A. Martini, 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NOT FOR PUBLICATION WITHOUT THE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.
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A-2125-16T4

PER CURIAM

Defendant Stanley Cliff Smith appeals from a September 6, 2016 order 

denying his petition for post-conviction relief (PCR) after a limited evidentiary 

hearing conducted on July 8, 2016.1 We affirm.

Defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(b), 

second-degree possession of a weapon for an unlawful purpose, N.J.S.A 2C:39-

4(d), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). 

The sentencing judge merged the gun possession charges into the murder charge,

and imposed a thirty-year sentence with a thirty-year parole disqualifier. 

Defendant filed a direct appeal, and we affirmed. State v. Smith, No. 

A-2439-07 (App. Div. Aug. 4, 2010). The New Jersey Supreme Court granted 

defendant's petition for certification, and affirmed the conviction on October 25, 

2012. State v. Smith, 212 N.J. 365 (2012).2 

 

1

 The evidentiary hearing was limited to whether certain individuals were proper 

alibi witnesses and, if so, whether defendant's trial counsel failed to investigate

either individual as an alibi witness to testify at trial.

2

 On March 4, 2013, the United States Supreme Court denied defendant's 

petition.
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Defendant filed a pro se PCR petition on July 2, 2012. The judge 

reviewing this first PCR petition denied the application because defendant's 

direct appeal was still pending. 

On May 10, 2013, defendant filed a new pro se PCR petition. The PCR 

judge granted defendant's request for an evidentiary hearing limited to potential

alibi witnesses. At the evidentiary hearing, the court heard testimony from 

defendant, defendant's trial counsel, and two potential alibi witnesses. 

In a thorough and comprehensive forty-six page written decision, Judge 

Timothy P. Lydon denied defendant's PCR application. We need not repeat the 

judge's detailed recitation of the testimony from the trial and PCR evidentiary 

hearing. 

On appeal, defendant raises the following arguments in his counseled 

brief:

POINT I

DEFENDANT'S PCR PETITION SHOULD NOT 

HAVE BEEN TIME BARRED.

POINT II

DEFENDANT'S CONVICTION MUST BE 

REVERSED BECAUSE TRIAL COUNSEL WAS 

INEFFECTIVE FOR FAILING TO INVESTIGATE 
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P.J.3 AND S.F. AS EXCULPATORY WITNESSES 

AND/OR HAVE THEM TESTIFY.

POINT III

TRIAL COUNSEL EFFECTIVELY INDUCED 

DEFENDANT NOT TO TESTIFY.

POINT IV

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CASE OF PRETRIAL COUNSEL'S 

INEFFECTIVENESS FOR NOT INFORMING HIM 

THAT HE HAD THE RIGHT TO TESTIFY AT THE 

MIRANDA4 HEARING.

POINT V

THIS MATTER MUST BE REMANDED FOR 

FINDINGS OF FACT AND CONCLUSIONS OF 

LAW REGARDING DEFENDANT'S CLAIM THAT 

TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO INVESTIGATE D.S. AND J.R.

AND/OR HAVE THEM TESTIFY AS 

EXCULPATORY WITNESSES. (Not raised below).

In his pro se supplemental brief, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING THE 

DEFENDANT'S PETITION FOR POST-

 

3

 We use initials to protect the identities of the potential witnesses.

4

 Miranda v. Arizona, 384 U.S. 436 (1966).
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CONVICTION RELIEF[.] THE DEFENDANT['S]

CONVICTION MUST BE REVERSED DUE TO 

TRIAL COUNSEL'S INEFFECTIVENESS FOR 

FAILING TO INVESTIGATE AND INTERVIEW 

ALIBI WITNESS P.J. AND PARTIAL ALIBI 

WITNESS S.F., AS EXCULPATORY WITNESSES 

AND HAVE THEM TESTIFY AT DEFENDANT'S 

TRIAL. 

POINT II

THE DEFENDANT'S PCR ATTORNEY WAS 

INEFFECTIVE FOR NOT PROVIDING THE PCR 

COURT WITH THE CELLPHONE SUBSCRIBER 

INFORMATION.

We affirm the denial of defendant's PCR petition for the reasons set forth

in Judge Lydon's thoughtful and cogent written opinion. We add only the

following comments.

In accordance with Rule 3:22-6A(2), when a first PCR petition is 

dismissed without prejudice, the petition may be refiled as a first petition if it is 

filed "within 90 days of the date of the judgment on direct appeal" or within five 

years of the date of the entry of the judgment of conviction. In this case, 

defendant's PCR petition refiled on May 10, 2013 was not timely under the Rule

because ninety days from the New Jersey Supreme Court's denial of defendant's 

petition for certification was January 20, 2013, and five years from the entry of 

the judgment of conviction was May 17, 2012. 
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Defendant contends his May 2013 petition was timely because it was filed 

within ninety days of the denial of his writ of certiorari to the United States 

Supreme Court. We reject this argument because "[f]ederal habeas corpus 

proceedings will not be deemed to toll the time prescribed by [Rule 3:22-12]." 

Pressler & Verniero, N.J. Court Rules, cmt. 2 to R. 3:22-12 (2019) (citing State 

v. Milne, 178 N.J. 486, 494 (2004)) ("[A] defendant's pursuit of federal review 

ordinarily would not extend the time frame within which to file a PCR petition 

in State court."). 

On this record, we are satisfied the May 2013 PCR application was 

untimely and therefore should be treated as defendant's second petition. As a 

second or subsequent PCR petition, Rule 3:22-4(b) and Rule 3:22-12(a)(2) 

apply. 

A second or subsequent PCR petition is untimely when filed more than 

one year after the latest date of: (A) a newly asserted constitutional right was 

recognized and made retroactive; (B) a newly discovered factual predicate was 

discovered, if it could not have been discovered earlier through reasonable 

diligence; or (C) a prior PCR petition was denied in which PCR counsel was 

allegedly ineffective. R. 3:22-4(b); R. 3:22-12(a)(2). 
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Defendant's second PCR application did not concern a newly recognized 

constitutional right or a newly discovered factual predicate that could not have 

been discovered earlier. All of the information raised in defendant's second PCR 

petition related to his ineffective assistance of counsel claim could have been 

discovered sooner through the exercise of reasonable diligence. See State v. 

Brewster, 429 N.J. Super. 387, 399-400 (App. Div. 2013). Nor does defendant 

raise ineffective assistance of PCR counsel, as he did not have counsel on his 

first PCR petition.

Even though the PCR judge determined defendant's PCR application was 

time barred, the judge reviewed the merits of his petition. To establish a prima 

facie claim of ineffective assistance of counsel, a convicted defendant must 

satisfy the two-part test enunciated in Strickland by demonstrating: (1) counsel's 

performance was deficient, and (2) the deficient performance actually 

prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687 

(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland

test in New Jersey).

In reviewing ineffective assistance claims, courts apply a strong presumption 

that a defendant's trial counsel "rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment." 
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Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will 

not serve to ground a constitutional claim of inadequacy[.]" Fritz, 105 N.J. at 54

(quoting State v. Williams, 39 N.J. 471, 489 (1963), overruled on other grounds by

State v. Czachor, 82 N.J. 392 (1980)). To demonstrate the likelihood of succeeding 

under the Strickland/Fritz test, a defendant "must do more than make bald 

assertions[,] . . . [and] must allege facts sufficient to demonstrate counsel's alleged 

substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 

1999). 

We reject all of defendant's arguments asserting ineffective assistance of 

counsel for the reasons expressed in Judge Lydon's comprehensive written 

decision. 

The PCR judge found the testimony of defendant's trial counsel credible 

and the testimony of defendant's alibi witnesses unreliable and poor. The judge 

concluded defense counsel made a strategic litigation decision that the testimony 

of the proffered witnesses was more problematic than helpful to defendant. 

The PCR judge also determined defendant's trial counsel discussed the 

right to testify at the Miranda hearing and trial, and defendant deferred to his 

attorney on the matter. Further, the judge found defendant knowingly and 

intelligently waived his right to testify, his waiver was well documented in the 
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record based upon the discussions with his trial counsel, defendant was not 

compelled or coerced regarding his decision not to testify, and defendant had 

sufficient time to consider whether to testify at trial. Nor is there any evidence 

in the record to support a conclusion that had defendant testified at the Miranda

hearing or at trial, the outcome of the case would have been different. 

The PCR judge further found defense trial counsel effectively crossexamined the State's witnesses and his representation of defendant throughout 

the trial was not ineffective. The judge concluded defense trial counsel 

exercised reasonable and professional judgment in his strategy decisions 

regarding his representation of defendant throughout the trial. 

Regarding the failure of defense trial counsel to investigate whether D.S. 

and J.R. had information to serve as exculpatory witnesses at defendant's trial, 

this issue was not presented to the PCR judge. We decline to review issues not 

presented to the trial court unless the issue is jurisdictional or concerns a matter 

of public importance. See Zawan v. Felton, 219 N.J. 199, 227 (2014) (quoting 

Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973)). Because the issue 

raised by defendant for the first time on appeal is not jurisdictional or a matter 

of public importance, we decline to consider the argument. 
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Having reviewed the record, we find defense counsel's actions did not fall 

below the requisite standard to satisfy the Strickland/Fritz test. The trial

evidence against defendant was overwhelming. Defendant presented no 

competent evidence demonstrating satisfaction of either prong under the 

Strickland standard. Without presenting a prima facie case of ineffective 

assistance of counsel, defendant was not entitled to an evidentiary hearing on 

those issues. See State v. Preciose, 129 N.J. 451, 462-63 (1992). 

The arguments in defendant's supplemental pro se brief are without 

sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.