SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0729-19T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO MARCELO,

a/k/a JUAN MARTINEZ,

and JULIO MORCELO,

Defendant-Appellant.

________________________

Submitted December 15, 2020 – Decided 

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 11-03-0367.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Stephanie Davis Elson, 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NOT FOR PUBLICATION WITHOUT THE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.

January 05, 2021
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A-0729-19T4

Defendant Julio Marcelo appeals from an August 6, 2019 order denying 

his petition for post-conviction relief (PCR) without an evidentiary hearing. We 

affirm.

In 2011, defendant was indicted on three counts of first-degree robbery, 

N.J.S.A. 2C:15-1 (counts one, two, and three); second-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and 

second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count 

six). In 2012, a jury convicted defendant of counts one through four, acquitted 

him of count five, and the State dismissed count six. The trial judge sentenced 

defendant to an extended term of twenty-five years subject to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two; merged count four into 

counts one and three, and imposed a concurrent twenty-year sentence subject to 

NERA on counts one and three. 

The parties are familiar with the underlying facts, which we recounted in 

two prior appeals addressing defendant's challenges to his convictions and 

sentence. State v. Marcelo, No. A-4573-13 (App. Div. Oct. 25, 2016) (Marcelo 

I) and State v. Marcelo, No. A-4573-13 (App. Div. Sept. 7, 2017) (Marcelo II). 
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Pertinent to the issues raised on this appeal, in Marcelo I, defendant

challenged the jury instruction on the robbery counts and challenged his 

sentence as excessive and punitive. Marcelo I, slip op. at 2-3. Regarding the 

jury instruction, we stated: "Defendant . . . contends his conviction should be 

reversed because the record is devoid of jury instructions directing the jury to 

begin deliberations anew after a deliberating juror was replaced by an alternate 

juror." Id. at 12. Because the record was inadequate to enable us to resolve the 

issue, we remanded the matter to the trial judge to reconstruct the record in 

accordance with our instructions, and retained jurisdiction pending the 

proceedings. Id. at 14-15, 18. 

However, we rejected defendant's arguments regarding his sentence, 

which contested the trial judge's application of certain mitigating factors. Id. at 

15-16. At the outset, we stated: "Significantly, defendant does not dispute he 

was subject to an extended term based on his status as a persistent offender." Id.

at 15. Although we concluded the sentence neither violated the sentencing 

guidelines nor shocked the judicial conscience, we remanded "for the court to 

amplify the record by explaining the basis for its finding" regarding an 

aggravating factor which did "not appear to be supported by the record." Id. at 
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17. We concluded defendant's remaining arguments concerning his sentence 

lacked merit. Id. at 18. 

In Marcelo II, we noted the jury instruction issue was moot because the 

missing transcript, which caused us to direct the trial judge to reconstruct the 

record, was located following the remand. Marcelo II, slip op. at 2. We also 

affirmed the sentence, concluding defendant's trial counsel did not object to the 

application of the pertinent aggravating factor and the court's application of the 

factor was not plain error leading to an unjust result. Id. at 8. 

The Supreme Court denied defendant's petition for certification. State v. 

Marcelo, 232 N.J. 290 (2018). In 2018, defendant filed a pro se PCR petition, 

containing a certification alleging ineffective assistance of trial counsel stating:

I met with my trial attorney two times in preparation for 

a trial. Both of those meeting[s] lasted about ten 

minutes. Our discussions about the case were limited 

and not productive. I felt that the attorney had no time 

for me or interest in the case. 

I do not recall ever discussing with my trial attorney the 

issue of an extended term. I did not know what the term 

meant and may well have decided not to go to trial if I 

had understood the effect of an extended term at 

sentencing. I do not feel that I received adequate or 

effective representation. 
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Although it is not part of the appellate record, we glean from the transcript of 

the PCR petition that defendant was assigned PCR counsel who filed a brief, 

which raised an additional issue relating to the robbery jury charge.

In a written opinion, Judge Sheila A. Venable denied the petition and 

summarized defendant's arguments as follows: 

[Defendant] argues that defense counsel was 

ineffective for failing to meet with [defendant] 

sufficiently in order to develop a strategy for trial, in 

addition to failing to explain the consequences of a plea 

agreement in which [defendant] was exposed to an 

extended term of imprisonment. Nor did counsel make 

any objection to the jury charge for first-degree 

robbery. 

The judge concluded defendant's claim he was never informed of his 

eligibility for an extended sentence was belied by his own pretrial memorandum, 

which defendant had 

initialed on each page and ultimately signed[,] . . . [and 

did] in fact discuss the possibility of an extended term. 

The answers to several questions on the form show that 

there was some awareness that [defendant] qualified for 

an extended term, both discretionary and mandatory in 

nature, and that he faced a sentence of up to life 

pursuant to NERA. . . . Moreover, the [m]emorandum 

also discusses the plea agreement initially offered, 

consisting of the State recommending a fifteen-year 

term of imprisonment coupled with eighty-five percent 

parole ineligibility. 
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. . . Even assuming, for the sake of argument, that 

[defendant] did not know precisely what an extended 

term entailed, he nonetheless appears to have been 

aware of the consequences of conviction at trial 

[versus] consequences of a plea deal.

The judge further noted 

[defendant] does not discuss what exactly he did not 

understand about the possibility of an extended term, 

nor does he elaborate as to how this omission by 

counsel affected his decision to go to trial. Nor has 

[defendant] provided any transcript of the court 

proceedings from which this [c]ourt can determine 

whether [his] contentions have merit. Therefore, 

without more, [defendant's] assertion in this regard is 

merely bare and conclusory in nature, and fails to 

establish a prima facie case of ineffective assistance.

Addressing the ineffective assistance claim relating to defendant's 

meetings with trial counsel, the judge stated: 

[Defendant] asserts that he only met twice with counsel 

prior to trial, and that the lack of meaningful 

communication with counsel ultimately caused a 

breakdown in communication. . . . However, this 

appears to be the extent of [defendant]'s discussion of 

inadequate trial preparation, and he does not specify the 

manner in which this prejudiced him. With the 

exception of the alleged failure to explain the extended 

term, and the failure to object to the ["]and/or["]

language in the robbery jury charge, [defendant]

provides no specific examples of inadequate 

performance by trial counsel, nor does he discuss how 

any such consequences arose from inadequate 

preparation by and consultation with trial counsel.
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Regarding the jury charge, the judge stated:

Finally, with regard to [defendant's] claims of the 

use of the phrase "and/or" in the instruction to the jury 

with regard to the robbery charge, it has been held that 

the "repeated use of 'and/or' wrung from the charge any 

clarity it might have otherwise possessed." State v. 

Gonzalez, 444 N.J. Super. 62, 77 (App. Div.[ 2016]). 

However, as discussed above, it is not entirely clear 

how many times "and/or" was used in the jury charge 

in the instant matter, as [defendant] has provided no 

transcription of the trial or jury charge. Moreover, this 

particular issue appears to have been raised by 

[defendant] on direct appeal. . . . However, the 

Appellate Division concluded that this argument, 

among others, was "without sufficient merit to warrant 

further discussion." . . . Therefore, this argument . . . 

has been foreclosed on direct review.

On appeal, defendant raises the following point:

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CASE OF TRIAL COUNSEL'S INEFFECTIVENESS 

DUE TO INADEQUATE CONSULTATION. 

We review a judge's denial of PCR without an evidentiary hearing de 

novo. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). "Postconviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an 

opportunity to relitigate cases already decided on the merits, R. 3:22-5." State 

v. Preciose, 129 N.J. 451, 459 (1992). A defendant raises a cognizable PCR

claim if it is based upon a "[s]ubstantial denial in the conviction proceedings of 
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defendant's rights under the Constitution of the United States or the Constitution 

or laws of the State of New Jersey." R. 3:22-2(a). Because all criminal 

defendants have the constitutional right to the assistance of counsel in their 

defense, defendants may bring a PCR claim for ineffective assistance of counsel. 

U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10.

To reverse a conviction based on ineffective assistance of counsel, a 

defendant must demonstrate that both: (1) "counsel's performance was deficient" 

and (2) counsel's "errors were so serious as to deprive the defendant of a fair 

trial." Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Fritz, 

105 N.J. 42, 58 (1987) (adopting the Strickland two-part test). Under the first 

prong, counsel's representation must be objectively unreasonable. State v. 

Pierre, 223 N.J. 560, 578 (2015). Under the second prong, a "reasonable 

probability [must exist] that, but for counsel's unprofessional errors, the result 

of the proceeding would have been different." Id. at 583 (quoting Strickland, 

466 U.S. at 694).

Initially, we note defendant's appellate brief raises arguments relating to 

trial counsel's limited meetings with him and the extended sentence issue. 

Therefore, we do not address the alleged inadequacy of the jury instruction 

because "[a]n issue not briefed on appeal is deemed waived." Sklodowsky v. 
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Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). Regardless, it would be 

procedurally barred pursuant to Rule 3:22-4(a) and Rule 3:22-5.

The PCR court has discretion to determine whether a hearing is necessary 

to aid in its analysis. State v. Marshall, 148 N.J. 89, 158 (1997). If the court 

decides a defendant's allegations "are too vague, conclusory, or speculative to 

warrant an evidentiary hearing . . . then an evidentiary hearing need not be 

granted." Ibid. (citing Preciose, 129 N.J. at 462-64). This is because there is a 

strong presumption trial counsel "rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment." 

Strickland, 466 U.S. at 690. Further, because prejudice is not presumed, Fritz, 

105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel 

undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 

648, 659 n.26 (1984). 

As we noted within the context of a defendant's claim trial counsel failed 

to investigate his case, "a petitioner must do more than make bald assertions that 

he was denied the effective assistance of counsel. He must allege facts sufficient 

to demonstrate counsel's alleged substandard performance . . . [and] assert the 

facts that an investigation would have revealed[.]" State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999).
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Here, defendant's certification alleged trial counsel met with him twice, 

described the length of the meetings, and characterized the meetings as "limited 

and not productive." However, more was required because defendant's 

certification failed to explain how the length of meetings or their substance 

prejudiced the outcome of the case. He did not describe how longer or more 

frequent meetings would have constituted effective assistance of counsel or what 

should have been discussed during these meetings that would have rendered 

them productive. Defendant's certification offered no facts to support the 

assertion that trial counsel was disinterested in his case.

We reach a similar conclusion regarding defendant's claim trial counsel 

failed to advise him of his exposure to an extended term. We have held "an 

attorney's gross misadvice of sentencing exposure that prevents [a] defendant 

from making a fair evaluation of a plea offer and induces him to reject a plea 

agreement he otherwise would likely have accepted constitutes remediable 

ineffective assistance." State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 

2006) (quoting State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div. 2002)). 

As Judge Venable explained, the record lacks any evidence of "gross 

misadvice" to defendant regarding his sentencing exposure. The objective 

evidence in the record shows defendant was aware he could receive an extended 
11 A-0729-19T4

term and his PCR certification to the contrary was a bald assertion unsupported 

by the record or any other facts to support the allegation.

Affirmed.