SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0346-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES L. MILLER,

Defendant-Appellant.

_______________________

Submitted February 12, 2020 – Decided 

Before Judges Fuentes and Haas. 

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 13-05-1564.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Jill S. Mayer, Acting Camden County Prosecutor, 

attorney for respondent (Maura Murphy Sullivan, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief). 

The opinion of the court was delivered by

NOT FOR PUBLICATION WITHOUT THE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.

January 22, 2021
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FUENTES, P.J.A.D.

Defendant James L. Miller appeals from the order of the Criminal Part 

denying his post-conviction relief (PCR) petition. We affirm.

A Camden County Grand Jury returned a multi-count indictment against 

defendant charging him with third degree aggravated assault, multiple counts of 

unlawful possession of a weapon, third degree terroristic threats, and first degree 

murder of Josue Rivera. On October 28, 2013, defendant entered into a 

negotiated agreement with the State through which he pled guilty to first degree 

aggravated manslaughter, by recklessly causing the death of Mr. Rivera,

N.J.S.A. 2C:11-4(a)(1). In exchange, the State agreed to dismiss the remaining 

charges in the indictment and recommend the court sentence defendant to a term 

of imprisonment of twenty years, with an eighty-five percent period of parole 

ineligibility and five years of parole supervision, as mandated by the No Early 

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

The record of the plea hearing shows defendant provided a factual basis 

of his crime in response to the following questions from defense counsel:

Q. Mr. Miller, I’m going to direct your attention to the 

hours or the early evening hours of March 28th, into the 

early morning hours of March 29th, 2012.
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Were you present [an address on] Tyler Avenue in the 

City of Camden, County of Camden, the State of New 

Jersey?

A. Yes.

Q. Did you have an altercation with your stepfather, 

[Josue] Rivera at that time?

A Yes.

Q And at that time, during that altercation, did you 

strike him with a hatchet, eventually causing his death?

A Yes. 

At the sentencing hearing held on December 6, 2013, Judge Gwendolyn 

Blue, the same judge who presided at the plea hearing, sentenced defendant in 

accordance with the plea agreement to a twenty-year term of imprisonment 

subject to NERA. Defendant filed a timely direct appeal to this court 

challenging the sentence imposed by Judge Blue through the summary process 

codified in Rule 2:9-11. When the appeal came before this court for oral 

argument, appellate counsel claimed Judge Blue did not consider that defendant 

was under the influence of PCP (phencyclidine) at the time he committed the 

crime. Counsel argued that the Judge Blue erred by not considering defendant's 
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state of intoxication as a basis to find mitigating factor four, N.J.S.A. 2C:44-

1(b)(4).1

The prosecutor argued that the record of the sentencing hearing showed 

that Judge Blue considered the intoxication issue at the sentencing hearing and 

expressly rejected its application under the facts of this case.

JUDGE BLUE: There’s argument by counsel that the 

system failed this young man, and I certainly get that 

argument, and sometimes things do not work the way it 

should work in our country, but I can’t find that a 

system failed you when you decide to intoxicate 

yourself, and you decide to hurt others. That’s a 

conscious decision to take a drug or to hurt someone, 

so I can’t find the system failed a person when they 

decide to conduct violent acts, so I do not find that. 

In an order dated June 1, 2015, this court summarily affirmed the sentence

imposed by Judge Blue.

On July 14, 2017, defendant filed a pro se PCR petition alleging 

ineffective assistance of counsel. Judge Blue assigned counsel to represent 

defendant in the prosecution of the PCR petition. PCR counsel filed a brief in 

support of the petition. The matter came for oral argument before Judge Blue 

1

 Under N.J.S.A. 2C:44-1(b), a sentencing judge may consider whether "[t]here 

were substantial grounds tending to excuse or justify the defendant’s conduct, 

though failing to establish a defense[.]" 
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on August 15, 2018. Defendant was present. Both attorneys advised the judge 

that they were relying on their briefs.

Judge Blue reviewed on the record the history of the case and applied the 

relevant standard of review with respect to allegations of ineffective assistance 

of counsel. She reviewed each of defendant's arguments and found he had not

established a prima facie case of ineffective assistance of counsel and was thus 

not entitled to an evidentiary hearing.

Judge Blue held that defendant's claims of ineffective assistance of 

counsel based on defense counsel's alleged failure to raise mitigating four factor 

at the sentencing hearing was procedurally barred under Rule 3:22-5 because it 

was raised and rejected on direct appeal. She also concluded that defendant's 

remaining arguments were barred by Rule 3:22-4(a)(1), which states, in relevant 

part, that:

Any ground for relief not raised in the proceedings 

resulting in the conviction, or in a post-conviction 

proceeding brought and decided prior to the adoption 

of this rule, or in any appeal taken in any such 

proceedings is barred from assertion in a proceeding 

under this rule unless the court on motion or at the 

hearing finds: 

(1) that the ground for relief not previously asserted 

could not reasonably have been raised in any prior 

proceeding; or 
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(2) that enforcement of the bar to preclude claims, 

including one for ineffective assistance of counsel, 

would result in fundamental injustice; or 

(3) that denial of relief would be contrary to a new rule 

of constitutional law under either the Constitution of 

the United States or the State of New Jersey. 

Finally, Judge Blue found defendant's belated claims that he killed his 

stepfather (Mr. Rivera) because the latter "had a history of violence towards 

[him], which had been going [on] for years" were self-serving and 

uncorroborated by any competent evidence. Judge Blue ultimately concluded 

that

[a]ll that the defendant offers in this matter are blanket 

statements of abuse, without any real concrete support 

[or] concrete evidence to support his claims. Further, I 

emphasize that the evidence demonstrates that at the 

time of this incident the victim was in his bed. I note 

that the defendant had entered victim’s bedroom on 

more than one occasion to fight with the victim.

Against this record, defendant raises the following arguments:

POINT ONE

THIS MATTER MUST BE REMANDED FOR A NEW 

HEARING IN FRONT OF AN IMPARTIAL PCR 

JUDGE.

POINT TWO

IN THE ALTERNATIVE [DEFENDANT] IS 

ENTITLED TO AN EVIDENTIARY HEARING ON 
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HIS CLAIM THAT HIS ATTORNEY RENDERED 

INEFFECTIVE ASSISTANCE OF COUNSEL FOR 

FAILING TO ARGUE ADEQUATELY AT 

SENTENCING.

POINT THREE

THE PCR COURT ERRONEOUSLY RULED THAT 

[DEFENDANT'S] PETITION WAS 

PROCEDURALLY BARRED AS TO THE PART OF 

HIS CLAIM CONCERNING COUNSEL'S FAILURE 

TO ARGUE FOR MITIGATING FACTORS THREE 

AND FOUR.

We review a claim of ineffective assistance of counsel under the twoprong test established by the United States Supreme Court in Strickland v. 

Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate 

that defense counsel's performance was deficient. Strickland, 466 U.S. at 687. 

Second, he must show there exists "a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different." Id. at 694. We discern no legal basis to disturb the PCR judge's 

findings and ultimate legal conclusions. Judge Blue's decision to deny 

defendant's request for an evidentiary hearing is supported by the record and 

constituted a proper exercise of her discretionary authority under Rule 3:22-10. 

State v. Jones, 219 N.J. 298, 311 (2014). Defendant's argument attacking Judge 
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Blue's impartiality is factually baseless and lacks sufficient legal merit to 

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

Affirmed.