SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0275-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS M. WINTON,

Defendant-Appellant.

_________________________

Submitted December 16, 2019 – Decided

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Indictment No. 10-06-1049.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Andrew R. Burroughs, Designated Counsel, 

on the brief).

Bradley D. Billhimer, Ocean County Prosecutor, 

attorney for respondent (Samuel J. Marzarella, Chief 

Appellate Attorney, of counsel; Cheryl L. Hammel, 

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NOT FOR PUBLICATION WITHOUT THE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.

March 20, 2020
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A-0275-18T4

Defendant Thomas M. Winton appeals from an order denying his petition 

for post-conviction relief (PCR) without an evidentiary hearing, arguing:

POINT I

AS DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL, HE WAS ENTITLED 

TO POST-CONVICTION RELIEF.

(1) TRIAL COUNSEL WAS INEFFECTIVE WHEN 

HE FAILED TO PROPERLY OBJECT TO THE 

ADMISSION OF THE STAFFORD CAD REPORT.1

(2) TRIAL COUNSEL FAILED TO CONTEST THE 

AUTHENTICITY AND ACCURACY OF THE 

STAFFORD CAD REPORT.

(3) TRIAL COUNSEL FAILED TO CALL THE 

BOOKING OFFICER REGARDING HIS BLACK 

EYE. 

(4) TRIAL COUNSEL FAILED TO 

ADEQUATELY CROSS-EXAMINE [THE 

PURSUING POLICE SERGEANT] ABOUT HIS USE 

OF FORCE REPORT.

1

 CAD is an acronym for a computer-aided dispatch program. See State v. 

Chisum, 236 N.J. 530, 538 (2019). "CAD systems allow public safety 

operations and communications to be augmented, assisted, or partially 

controlled by an automated system. It can include, among other capabilities, 

computer-controlled emergency vehicle dispatching, vehicle status, incident 

reporting, and management information." Law Enforcement Information 

Technology Standards Council, Standard Functional Specifications for Law 

Enforcement Computer Aided Dispatch (CAD) Systems, JUSTICE 

INFORMATION SHARING viii, https://www.it.ojp.gov/documents/

LEITSC_Law_Enforcement_CAD_Systems.pdf (last visited Mar. 2, 2020). 
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(5) TRIAL COUNSEL FAILED TO INVESTIGATE 

WHETHER A CONSTRUCTION ZONE FROM MILE 

POST 63 [TO] 55 ON THE GARDEN STATE 

PARKWAY EXISTED AT THE TIME OF THE 

INCIDENT. 

(6) THE PCR COURT ERRED WHEN IT FOUND 

TRIAL COUNSEL'S DECISION NOT TO CALL AN 

EXPERT WITNESS WAS REASONABLE TRIAL 

STRATEGY.

(7) THE PCR COURT WAS WRONG WHEN IT 

FOUND TRIAL COUNSEL'S ERROR RELATED TO 

DEFENDANT'S MIRANDA STATEMENT WAS 

NOT PREJUDICIAL.

POINT II

AS THERE ARE GENUINE ISSUES OF MATERIAL 

FACTS IN DISPUTE, AN EVIDENTIARY HEARING 

WAS REQUIRED.

Because the PCR court did not hold an evidentiary hearing, we review 

both the factual inferences drawn by the PCR court from the record and the 

court's legal conclusions de novo. State v. Blake, 444 N.J. Super. 285, 294 (App. 

Div. 2016). To establish a PCR claim of ineffective assistance of counsel, a 

defendant must satisfy the two-pronged test formulated in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in 

State v. Fritz, 105 N.J. 42, 58 (1987), first by showing "that counsel made errors 

so serious that counsel was not functioning as the 'counsel' guaranteed . . . by 
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the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 

687); then by proving he suffered prejudice due to counsel's deficient 

performance, Strickland, 466 U.S. at 687, 691-92. Defendant must show by a 

"reasonable probability" that the deficient performance affected the outcome. 

Fritz, 105 N.J. at 58. Under those standards, we find no merit in defendant's 

arguments and affirm.

Defendant was convicted by jury of second-degree eluding, N.J.S.A. 

2C:29-2(b). The State alleged, after a Stafford Township police sergeant 

stopped defendant's vehicle because it did not match the vehicle for which the 

license plates had been issued, defendant fled in his vehicle as the sergeant 

approached it on foot. The sergeant reentered his vehicle and pursued 

defendant's vehicle onto the Garden State Parkway for approximately eight 

miles. Defendant finally stopped his vehicle after he came upon two New Jersey 

State troop vehicles that were standing by with emergency lights activated to 

join the pursuit. 

We affirmed his conviction, State v. Winton, No. A-4300-12 (July 14, 

2015), where we fully set forth the facts of this case. We will not repeat them 

here unless germane to this appeal. The Supreme Court denied certification. 

State v. Winton, 223 N.J. 555 (2015).
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A-0275-18T4

On direct appeal, defendant argued the State's failure to timely provide the 

CAD report violated the Rules relating to discovery and defendant's right to a 

fair trial. We ruled "[t]here was no due process violation because the CAD 

report was not withheld by the State"; "the trial court barred the report's 

admission until defendant consented"; and after defense counsel consented, he

used the report to cross-examine the sergeant who pursued defendant from the 

entrance ramp to the Garden State Parkway at exit 63 to milepost 55.7. Winton, 

slip op. at 5. We also determined the trial court did not abuse its discretion in 

admitting the report because, notwithstanding the State's contention that the 

report had been provided in discovery, it gave defense counsel time to review 

the report, id. at 5-6.; and "defendant waived his claim of error by consenting to 

admission of the document," id. at 6. And we concluded defendant showed no 

prejudice "from the alleged late discovery" because he was aware of the 

sergeant's testimony and the State's timeline contentions without reference to 

the CAD report. Ibid. We added: "In any event, the document's admission into 

evidence did not produce an unjust result as the other evidence against defendant 

was overwhelming." Ibid.

The PCR judge determined our ruling barred defendant's present 

arguments that counsel was ineffective for failing to object to the admission of 
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the CAD report and contest the report's authenticity and accuracy under Rule

3:22-5. "Under Rule 3:22-5, prior adjudication of an issue, including a decision 

on direct appeal, will ordinarily bar a subsequent post-conviction hearing on the 

same basis." State v. Afanador, 151 N.J. 41, 51 (1997). An issue is only barred 

under the Rule, however, if the issue sought to be precluded "'is identical or 

substantially equivalent' to the issue already adjudicated on the merits." Ibid. 

(quoting State v. McQuaid, 147 N.J. 464, 484 (1997)). 

Defendant's PCR arguments differ from those advanced on direct appeal. 

He now argues counsel was ineffective for failing to advise the trial court that 

the CAD report had been previously barred from evidence in a pretrial ruling by 

another judge. Defendant argues the report's admission bolstered the State's 

contention that defendant fled after being stopped by the sergeant, and 

prejudiced his defense premised on the inadmissibility of the CAD report: 

"alleging that there was never an initial motor vehicle stop[.]"

On direct appeal we held "the document's admission into evidence did not 

produce an unjust result since the other evidence against defendant was 

overwhelming." Winton, slip op. at 6. That determination also scotches 

defendant's argument in this case because defendant failed to show the 

admission of the document caused prejudice. Although the CAD report showed 
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the initial stop occurred two minutes before the sergeant began his pursuit, even 

if the initial stop did not occur, the sergeant's testimony established 

overwhelming proof of the elements of second-degree eluding.2

While defendant fled from the sergeant on the Parkway, he was paced by 

the sergeant at approximate speeds of 85, 90 and up to 125 miles per hour. The 

normal speed limit on the Parkway is sixty-five miles per hour, but a portion of 

the chase took place in a construction zone where the limit is forty-five miles 

per hour. The sergeant's testimony provided additional evidence establishing 

the "risk of death or injury" element. It was raining that evening and the 

roadway was wet. During the pursuit, defendant first passed cars on the right. 

He later approached vehicles in both lanes and cut across the Parkway from the 

left lane onto the right shoulder, passing what the sergeant described as "a clump 

of three or four cars" as he drove on the shoulder before crossing back to the left 

2

 N.J.S.A. 2C:29-2(b) provides in pertinent part:

Any person, while operating a motor vehicle on any 

street or highway . . . who knowingly flees or attempts 

to elude any police or law enforcement officer after 

having received any signal from such officer to bring 

the vehicle or vessel to a full stop commits a crime of 

the third[-]degree; except that, a person is guilty of a 

crime of the second[-]degree if the flight or attempt to 

elude creates a risk of death or injury to any person.
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lane. He, again, cut across the Parkway from the left lane and passed a "clump 

of two or three cars" while driving on the shoulder before cutting across to the 

left lane.

We also note defense counsel consented to the admission of the report 

after the trial court gave him an opportunity to review it. Moreover, he used the 

report in an attempt to discredit the sergeant's testimony about the speeds 

reached during the pursuit. Specifically he elicited from the sergeant that during 

the approximate eight-mile pursuit, the sergeant claimed defendant travelled at 

125 miles per hour for one and one-half miles and at eighty miles per hour for 

"most of the miles" covered during the chase, slowing only at the end for a mile 

or less, thereby suggesting that those claims were false because more than eight 

miles would have been travelled during the six- or seven-minute pursuit at those 

speeds. 

We review defense counsel's actions under the familiar standards 

synopsized by the Court in State v. Arthur:

In determining whether defense counsel's 

representation was deficient, "'[j]udicial scrutiny . . . 

must be highly deferential,' and must avoid viewing the 

performance under the 'distorting effects of hindsight.'" 

State v. Norman, 151 N.J. 5, 37 (1997). Because of the 

inherent difficulties in evaluating a defense counsel's 

tactical decisions from his or her perspective during 

trial, "a court must indulge a strong presumption that 
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A-0275-18T4

counsel's conduct falls within the wide range of 

reasonable professional assistance; that is, the 

defendant must overcome the presumption that, under 

the circumstances, the challenged action 'might be 

considered sound trial strategy.'" Strickland, 466 U.S. 

at 689. 

In determining whether defense counsel's alleged 

deficient performance prejudiced the defense, "[i]t is 

not enough for the defendant to show that the errors had 

some conceivable effect on the outcome of the 

proceedings." Id. at 693. Rather, defendant bears the 

burden of showing that "there is a reasonable 

probability that, but for counsel's unprofessional errors, 

the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to 

undermine confidence in the outcome." Id. at 694.

[184 N.J. 307, 318-19 (2005) (alterations in original).]

According the presumption that counsel's conduct fell within the range of 

reasonable professional assistance, ibid., and adhering to the tenet that "an 

otherwise valid conviction will not be overturned merely because the defendant 

is dissatisfied with his or her counsel's exercise of judgment during the trial," 

State v. Castagna, 187 N.J. 293, 314 (2006), we determine defendant has not 

established his counsel's performance was deficient. Nor, in light of the other 

overwhelming evidence presented by State, do we conclude there is a reasonable 

probability, but for counsel's averred error in consenting to the CAD report's 

admission, the result of the trial would have been different. 
10 A-0275-18T4

Defendant contends his counsel failed to challenge the authenticity and 

accuracy of the report by calling a subpoenaed witness, an identified dispatcher, 

"to testify whether: all [recorded] dispatches [during the pursuit] had been 

erased as alleged by the State"; the "times registered in the CAD report appeared 

inconsistent and improbable, thus[] raising the issue whether it was accurate"; 

the report "may have been assembled after the incident [and] was contrived to 

bolster [the sergeant's] version of events."

We first note defendant has not proffered an affidavit or certification from 

the dispatcher, contravening Rule 3:22-10(c); in order to warrant an evidentiary 

hearing, petitions must be "accompanied by an affidavit or certification by 

defendant, or by others, setting forth with particularity the facts that he wished 

to present," State v. Jones, 219 N.J. 298, 312 (2014). Moreover, defendant has 

not proffered any evidence to support his contentions that the CAD report was 

flawed or contrived. A "defendant must allege specific facts and evidence 

supporting his allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "do 

more than make bald assertions that he was denied the effective assistance of 

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

Likewise, defendant failed to submit an affidavit or certification from the 

booking officer he claims his counsel should have called to show he sustained a 
11 A-0275-18T4

black eye during his arrest. We agree with the PCR court that defendant's claim 

that his counsel erred by calling a property officer instead of the booking officer 

is nothing more than a bald assertion.

Defendant also avers his counsel failed to adequately cross-examine the 

sergeant regarding a use of force report; specifically, that he failed to ask the 

sergeant why the report was submitted five days after it was due. The record 

reveals the sergeant admitted to defense counsel during cross-examination that 

he waited five days before filing the report, and, despite the sergeant's denial 

that he hit defendant in the eye, the box on the report under the heading 

"Officer's use of force toward the subject [–] Hands/fists" was checked. 

Under the standards announced in Arthur and Castagna, which we have 

already described, the record does not support that defense counsel's actions 

were deficient. Further, we agree with the PCR judge that even if counsel failed 

to establish the tardy submission of the report, defendant cannot meet the second 

prong of Strickland/Fritz. That alleged fact did not prejudice defendant, 

especially considering the evidence of his crime.

Defendant's argument that his counsel was ineffective for failing to 

investigate whether a construction zone actually existed on the Parkway is 

meritless. First, he proffers no evidence that a construction zone did not exist; 
12 A-0275-18T4

it is another bald assertion. The Star Ledger article defendant submitted is not 

competent evidence that the path of pursuit did not go through a construction 

zone. Further, even if a construction zone did not exist, and setting aside 

defendant's speed during the chase, the sergeant's testimony about defendant's 

driving—traversing lanes and driving on the shoulder while passing vehicles on 

a wet roadway outside the construction zone—was sufficient to establish the 

elements of second-degree eluding.

Defendant next argues the PCR court erred by finding his counsel's failure 

to call an expert witness to testify was a reasonable trial strategy. He contends 

the expert would have testified that his vehicle was incapable of reaching a speed 

of 125 miles per hour, and

would have helped set forth an imperfect defense to 

second-degree eluding, by arguing [defendant's] speed 

was lower than testified to by [the sergeant] and 

therefore his conduct fell within the range of thirddegree eluding, because there was no risk of death or 

injury to elevate his offense to the second-degree range.

Setting aside the PCR court's finding that the expert's two-page letter was 

a net opinion and would have been inadmissible at trial, even if the expert 

testified according to his report that defendant was travelling at fifty miles per 

hour, "[a]ssuming [his] speed was constant over [the] course" of five miles over 

six minutes; and that the highest speed, using a time interval of five minutes and 
13 A-0275-18T4

a distance of 5.7 miles, on average "could be as great as" sixty-eight miles per 

hour, the evidence of defendant's guilt was still overwhelming. Defendant's 

manner of driving—without regard to speed—met the statutory standard for 

second-degree eluding, particularly given the statutory "permissive inference 

that the flight or attempt to elude creates a risk of death or injury to any person 

if the person’s conduct involves a violation of chapter 4 of Title 39[.]" N.J.S.A. 

2C:29-2(b). Inasmuch as the trial court instructed the jury that they could base 

that inference on violations of traffic laws against improper passing and reckless 

driving, as well as speeding, defendant cannot show prejudice from counsel's 

alleged failure to call the expert.

Further, under the Arthur/Castagna standard, counsel was not deficient for 

choosing not to call the expert. The times and distances the expert utilized were 

contradicted by the record evidence. And, the expert's opinion:

I understand [defendant's] vehicle was a 1999 Mercury 

Tracer. The standard configuration of that model is 

listed as equivalent to the Ford Escort containing a 1.9[-

]liter engine and rated at [eighty-eight] horsepower. 

Based on my experience with such "compact" cars, I 

suggest that vehicle could not be driven on that 

roadway at the speed of 125 mph—although such speed 

may have been attained by [the sergeant,]

was clearly a net opinion. 
14 A-0275-18T4

The net opinion rule bars "the admission into evidence of an expert's 

conclusions that are not supported by factual evidence or other data." Townsend

v. Pierre, 221 N.J. 36, 53-54 (2015) (quoting Polzo v. County of Essex, 196 N.J. 

569, 583 (2008)). When an expert's opinion is "based merely on unfounded 

speculation and unquantified possibilities" it is inadmissible at trial. Id. at 

55 (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). The 

expert must "'give the why and wherefore' that supports the opinion, 'rather than 

a mere conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. 

Allendale, LLC, 216 N.J. 115, 144 (2013)). The expert may not base their 

opinion solely on their own subjective standard. Pomerantz Paper Corp. v. New 

Cmty. Corp., 207 N.J. 344, 373 (2011) ("[I]f an expert cannot offer objective 

support for his or her opinions, but testifies only to a view about a standard that 

is 'personal,' it fails because it is a mere net opinion.").

We also agree with the PCR judge that the sergeant's brief mention of 

"Miranda"

3 during cross-examination was not prejudicial, a finding defendant 

argues was error. Defense counsel was questioning the sergeant about his denial 

that he attempted to talk to defendant at the police station:

[DEFENSE COUNSEL]: Did you go back to the 

station that evening?

3

 Miranda v. Arizona, 384 U.S. 436 (1966).
15 A-0275-18T4

[SERGEANT]: Yes, I did.

[DEFENSE COUNSEL]: Did you talk to him?

[SERGEANT]: To?

[DEFENSE COUNSEL]: To [defendant].

[SERGEANT]: No. I didn't have any more contact 

with [defendant].

[DEFENSE COUNSEL]: But you're the arresting 

officer; aren't you?

[SERGEANT]: That is correct.

[DEFENSE COUNSEL]: So weren't you – didn't you 

want to at least talk to him, interview him?

[SERGEANT]: No, I did not.

[DEFENSE COUNSEL]: Why not?

[SERGEANT]: Like I thought I answered earlier, it's a 

policy within the Police Department that anybody who 

is available comes in to assist with the processing. 

[DEFENSE COUNSEL]: What you're saying is the 

arresting officer doesn't talk or try to talk to the 

individual that he arrested?

[SERGEANT]: I did not that particular night, no, I did 

not. 

[DEFENSE COUNSEL]: Was somebody there at the 

station going to be talking to him?
16 A-0275-18T4

[SERGEANT]: That is correct.

[DEFENSE COUNSEL]: But you didn't know who?

[SERGEANT]: I know the officers that were there. 

[DEFENSE COUNSEL]: When you left him there, you 

just said, "Here, this is [defendant]"?

[SERGEANT]: No. The officer – Officer Morrin 

arrived at the scene. He knew exactly what was going 

on from the radio transmission.

[DEFENSE COUNSEL]: But Officer Morrin isn't the 

arresting officer. You were. 

[SERGEANT]: That's correct.

[DEFENSE COUNSEL]: And you had no – you didn't 

want to talk to him about what happened?

[SERGEANT]: No, I did not.

[DEFENSE COUNSEL]: Get his reaction?

[SERGEANT]: No, I did not.

[DEFENSE COUNSEL]: Try to get an admission?

[SERGEANT]: I don't know if we can talk about the 

Miranda.

Contrary to defendant's argument relying on inapposite cases involving a 

defendant's silent response to accusations, the evidence shows the sergeant never 

attempted to speak with defendant, not that defendant did not deny the charges 
17 A-0275-18T4

when questioned. The sergeant denied wanting even to speak to defendant. 

Moreover, defense counsel's questions did not prompt the single mention of 

"Miranda." That unanticipated response does not establish a claim of ineffective 

assistance of counsel under either prong of Strickland/Fritz.

We see no merit in defendant's argument that the PCR court's denial of an 

evidentiary hearing was error. Defendant did not present a prima facie case in 

support of his PCR application by demonstrating "the reasonable likelihood of 

succeeding" under the test set forth in Strickland, to warrant an evidentiary 

hearing. State v. Preciose, 129 N.J. 451, 463 (1992); R. 3:22-10(b). "[I]n order 

to establish a prima facie claim, a petitioner must do more than make bald 

assertions that he was denied the effective assistance of counsel." Cummings, 

321 N.J. Super. at 170. Defendant failed to meet that threshold. See Preciose, 

129 N.J. at 463; R. 3:22-10(b). And he has certainly failed to show any prejudice 

from counsel's alleged ineffective assistance. Furthermore, an evidentiary 

hearing cannot be used to explore PCR claims. See State v. Marshall, 148 N.J. 

89, 157-58 (1997). As such, an evidentiary hearing was properly denied. 

Affirmed.