STATE OF NEW JERSEY VS. PAUL A. FOGLIA (05-11-0464, SUSSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2746-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL A. FOGLIA,
Defendant-Appellant.
_______________________
Submitted September 12, 2018 – Decided November 15, 2018
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 05-11-0464.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alison S. Perrone, Designated Counsel, on
the brief).
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Paul Foglia appeals from the January 26, 2017 Law Division
order denying his first petition for post-conviction relief (PCR) without granting
an evidentiary hearing. On appeal, defendant raises the following single point
for our consideration.
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE A [PRIMA
FACIE] CASE WAS ESTABLISHED AS TO
INEFFECTIVENESS OF TRIAL COUNSEL.
Having considered this argument in light of the record and applicable legal
principles, we affirm.
We incorporate herein the facts set forth in State v. Foglia, 415 N.J. Super.
106 (App. Div. 2010), wherein we reversed defendant's convictions for murder
and related charges because of widespread admission during his jury trial of
impermissible N.J.R.E. 404(b) evidence. We also incorporate the facts set forth
in State v. Foglia, No. A-0645-12 (App. Div. Nov. 19, 2014), wherein we
affirmed defendant's convictions for the same offenses following a retrial, and
affirmed the aggregate sentence of life imprisonment, with an 85% period of
parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Thereafter, in State v. Foglia, 221 N.J. 287 (2015), the Supreme Court denied
defendant's petition for certification.
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Briefly, the convictions stemmed from defendant killing the mother of his
on-again, off-again girlfriend by beating her to death. The victim "suffered a
'mosaic fracture' of her skull, caused by significant blunt force trauma, and her
body bore other signs of a savage beating." Foglia, slip op. at 5. Defendant
"had a long-standing, tumultuous relationship" with the victim's daughter and
"had fathered two young children" with her. Id. at 4. The victim's relationship
with defendant "was bitter and fueled by her belief that defendant was not good
enough for her daughter and failed to provide for her and the children." Ibid.
Although defendant initially told law enforcement he never left a nearby
bar/restaurant where he worked the evening the victim was murdered in her
home, "he subsequently provided a statement in which he admitted killing the
victim, and testified at the first trial1 that, he went to the victim's home in an
attempt to smooth the rough waters between them, and the victim attacked him
with [a] tray table." Id. at 5.
To support his PCR petition, defendant asserted, among other things, that
his trial counsel was ineffective by failing to present to the jury numerous items
of exculpatory evidence contained in his pre-trial discovery; failing to pursue
1
Although defendant elected not to testify at his second trial, "[t]he State read
to the jury significant portions of defendant's testimony at the first trial." Ibid.
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defendant's offer to plead guilty to aggravated manslaughter and to communicate
to defendant all plea offers tendered by the State; and failing to pursue a
diminished capacity defense. Following oral argument, without conducting an
evidentiary hearing, the PCR judge, who was also the trial judge, denied
defendant's petition in a January 19, 2017 oral opinion, which was supplemented
by a January 26, 2017 written statement of reasons. Judge N. Peter Conforti
determined that defendant failed to establish a prima facie case of ineffective
assistance of counsel on any of the grounds raised to satisfy the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42 (1987). Further, citing Rule 3:22-
10(b) and relying on State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), the
judge determined that an evidentiary hearing was unwarranted because
defendant's "[p]etition [did] not present material issues of disputed fact that
[could not] be resolved by the existing record."
In specifically rejecting defendant's assertion that his attorney was
ineffective by failing to present "exculpatory evidence," the judge noted that
despite defendant's assertions that "exculpatory evidence" consisting of
"statements" and "police reports . . . could have been used to impeach adverse
witnesses or dispute key facts, . . . no affidavits or certifications have been filed
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detailing any specifics with regard to exculpatory evidence." The judge also
rejected defendant's related argument that his decision not to testify at the
second trial was based on his attorney's incompetent advice that the exculpatory
portions of his prior trial testimony would be admitted at his second trial as part
of the State's case in chief. However, instead, only the "incriminating portions
of [his] prior testimony" were admitted. Judge Conforti acknowledged that
defense counsel attempted to introduce defendant's entire prior statement.
However, according to the judge, he sustained the State's objection in a decision
that was rendered before defendant "voluntarily chose not to testify," and "at no
point was there ever . . . an indication that he wanted to testify . . . to, in effect,
present[] this exculpatory evidence."
As to defendant's assertions regarding plea negotiations, Judge Conforti
considered the prosecuting attorney's certification submitted by the State,
certifying that he did "not recall ever making a plea offer to [defendant's]
attorney." According to the prosecutor, "at any time the possibility of a plea
agreement ever came up in conversation with [defendant's attorney], his position
was that his client would only accept a plea to a second[-]degree manslaughter
charge." Because "[t]hat offer was never acceptable to the State, . . . there was
never a plea offer by the State to the defendant."
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Judge Conforti determined that defendant "failed to offer any rebutting
facts to the [prosecuting attorney's] certification." Rather, according to the
judge, defendant presented "nothing more than bald assertions unsupported by
any evidence in the record." Moreover, the judge noted that defendant could not
show prejudice as required by "the second prong" of "the Strickland test," if "he
never got a plea offer from the State to anything less than the murder charge."
Notwithstanding the State's theory of the case, Judge Conforti recounted that
"throughout the course of the trial," defense counsel "vigorously" advocated for
a "passion/provocation manslaughter" verdict and, over the State's objection,
successfully "argued to the [c]ourt that [a passion provocation/manslaughter
charge] . . . should be included as part of the [c]ourt's instructions to the jury." 2
Further, as to the diminished capacity issue, the judge rejected defendant's
assertion that his attorney was ineffective by failing "to substantiate an d utilize
defendant's psychiatric or psychological disorders to establish a diminished
capacity defense." The judge acknowledged defendant's certification that "he
was suffering from numerous mental disorders," including "a brief psychotic
disorder, intermittent explosive disorder, and a delusional disorder." Defendant
2
Judge Conforti observed that, in general, trial counsel was "vigorous" and
"zealous" in representing defendant. According to the judge, trial counsel "was
well prepared," "was familiar with the discovery," and "engaged this defendant."
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specified in his petition that "at the time of the killing," "he had a blur that
clouded his thoughts," "he blacked out," the victim's verbal abuse and physical
assault caused "him to lose control and spontaneously strike out at the victim,"
and "he exhibited bizarre behavior, both before and after he killed her."
Defendant further asserted in his petition that "these disorders absolved
him of criminal responsibility for the murder . . . and that his attorney was
advised and did nothing." However, according to the judge, although an expert
examination of defendant "was initiated through the Office of the Public
Defender," "at no point – – either during . . . trial – – or, . . . with respect to this
petition, has this [c]ourt ever been supplied with any expert report, any
certification, [or] any affidavit that would support the defendant's arguments that
he suffered from these mental disorders." Instead, "what [he is] arguing to the
[c]ourt is his own . . . diagnosis of his own condition" without any "support . . .
from any source." The judge concluded that such a "deficiency" was fatal to
defendant's claim. "[T]aking everything into account," the judge explained that
defendant offered only unsupported "assertions," which provided no "basis for
an evidentiary hearing" and was "fatal to his petition." This appeal followed.
On appeal, defendant argues that "at the very least, [he] presented a [prima
facie] case of ineffective assistance of counsel, and thus, should have been
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granted an evidentiary hearing." Defendant continues that his "argument that
his attorney did not effectively represent him in plea negotiations can only be
established through evidence outside of the record." "Similarly, [his] argument
regarding trial counsel's failure to investigate and/or present exculpatory
evidence is reliant upon evidence outside the record so that defendant can
develop a record as to the nature of the evidence and its likely trial impact."
Additionally, defendant contends that in order to establish "that trial counsel
was ineffective in failing to pursue a diminished capacity defense, . . . counsel's
reasoning, if any, must be developed on the record before defendant's argument
can be ruled upon."
Merely raising a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a prima facie
claim of ineffective assistance of counsel, material issues of disputed fact lie
outside the record, and resolution of the issues necessitates a hearing. R. 3:22-
10(b); State v. Porter, 216 N.J. 343, 355 (2013). A PCR court deciding whether
to grant an evidentiary hearing "should view the facts in the light most favorable
to a defendant to determine whether a defendant has established a prima facie
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claim," and we review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462-
63 (1992).
To establish a prima facie claim of ineffective assistance of counsel, the
defendant must meet the Strickland-Fritz two-prong test. Specifically, the
defendant must establish that: (l) counsel's performance was so deficient as to
"[fall] below an objective standard of reasonableness" measured by "prevailing
professional norms," and (2) the defect in performance prejudiced defendant's
rights to a fair trial such that there exists a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different," Strickland, 466 U.S. at 687-88, 694. This standard of "reasonable
competence," Fritz, 105 N.J. at 60, "does not require the best of attorneys," State
v. Davis, 116 N.J. 341, 351 (1989), and the defendant must overcome a "strong
presumption that counsel rendered reasonable professional assistance ." State v.
Parker, 212 N.J. 269, 279 (2012). Further, "[a] 'reasonable probability'" to
satisfy the prejudice standard "simply means a 'probability sufficient to
undermine confidence in the outcome' of the proceeding." State v. O'Neil, 219
N.J. 598, 611 (2014) (quoting Strickland, 466 U.S. at 694).
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Because there is a strong presumption that counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment," Strickland, 466 U.S. at 690, the defendant bears the
burden of proving both prongs of an ineffective assistance of counsel claim by
a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012).
Further, because prejudice is not presumed, Fritz, 105 N.J. at 52, the 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). To that
end, the defendant "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." Cummings, 321 N.J.
Super. at 170. Thus, the defendant is not entitled to an evidentiary hearing when
his claims are "too vague, conclusory, or speculative." Porter, 216 N.J. at 355
(quoting State v. Marshall, 148 N.J. 89, 158 (1997)).
Here, we conclude defendant failed to make a prima facie showing of
ineffective assistance of counsel under the Strickland-Fritz test, and we discern
no abuse of discretion in the denial of defendant's PCR petition without an
evidentiary hearing. Indeed, we affirm substantially for the reasons expressed
by Judge Conforti in his comprehensive oral decision and written supplemental
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statement of reasons. We agree with the judge that defendant's unsupported
assertions are fatal to his petition. Indeed, "[d]efendant must demonstrate a
prima facie case for relief before an evidentiary hearing is required, and the
court is not obligated to conduct an evidentiary hearing to allow defendant to
establish a prima facie case not contained within the allegations in his PCR
petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008).
Affirmed.
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