STATE OF NEW JERSEY VS. JASON D. PRONTNICKI (16-08-0627, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2149-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON D. PRONTNICKI,
a/k/a JASON PRONTNICKI,
Defendant-Appellant.
_______________________
Submitted March 1, 2021 – Decided March 10, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 16-08-
0627.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth Harrigan, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Deborah Bartolomey, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant appeals from a December 3, 2019 order denying his petition
for post-conviction relief (PCR). Defendant maintains his trial and appellate
counsel rendered ineffective assistance. Judge Peter J. Tober entered the order
and rendered a lengthy and comprehensive written opinion, on which we
substantially agree. We therefore affirm.
Defendant entered a pharmacy, brandished a weapon, and demanded drugs
from the cashier. The cashier was unable to flee because of a wall behind her,
and she testified at the trial that she was concerned that defendant could jump
over the counter, which was a handicapped counter and low to the ground. At
trial, his counsel argued that defendant did not commit armed robbery, but
surveillance showed that defendant removed an iron wrench from his sleeve and
brandished it while demanding drugs from the cashier.
The jury found defendant purposely used the deadly weapon to put the
cashier in fear of immediate bodily injury. Defendant later appealed from his
convictions for first-degree armed robbery, N.J.S.A. 2C:15–1(a)(2); third-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(d);
and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(d). We
affirmed, State v. Prontnicki, No. A-2119-16 (App. Div. May 31, 2018), and the
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Supreme Court subsequently denied certification, State v. Prontnicki, 236 N.J.
237 (2018). Thereafter, defendant filed his PCR petition.
On appeal, defendant raises the following arguments for this court's
consideration:
POINT I
THE [PCR] JUDGE ERRED IN HIS
DETERMINATION THAT TRIAL COUNSEL
PROVIDED EFFECTIVE ASSISTANCE SINCE
COUNSEL FAILED TO SEEK DISQUALIFICATION
OF THE MIDDLESEX COUNTY PROSECUTOR'S
OFFICE [MCPO] FROM THE CASE, OBJECT TO
THE TRIAL [JUDGE]'S JURY CHARGE WHICH
LACKED A DEFINITION OF "ATTEMPT" AND
SEEK DISQUALIFICATION OF THE TRIAL
JUDGE.
A. TRIAL COUNSEL FAILED TO SEEK
DISQUALIFICATION OF THE [MCPO] FROM
THE CASE[.]
B. TRIAL COUNSEL FAILED TO OBJECT TO
THE JURY CHARGE WHICH OMITTED A
DEFINITION OF "ATTEMPT[.]"
C. TRIAL COUNSEL FAILED TO SEEK
DISQUALIFICATION OF THE TRIAL
JUDGE[.]
POINT II
THE [PCR] JUDGE ERRED BY DENYING
DEFENDANT'S CLAIM THAT HE RECEIVED
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INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL[.]
POINT III
THE CONFLICT WHICH RESULTED IN THE
SOMERSET COUNTY PROSECUTOR'S OFFICE
[SCPO] TAKING OVER THE PROSECUTION OF
DEFENDANT'S GIRLFRIEND, WHO WAS THEN A
SITTING JUDGE IN MIDDLESEX COUNTY
SUPERIOR COURT, REQUIRED THAT THE [SCPO]
ALSO TAKE OVER DEFENDANT'S
PROSECUTION AND THE FAILURE TO DO SO
DEPRIVED DEFENDANT OF A FAIR TRIAL, DUE
PROCESS AND EQUAL PROTECTION UNDER
THE LAW[.]
POINT IV
THE TRIAL JUDGE DENIED DEFENDANT HIS
RIGHT TO A FAIR TRIAL BY AN IMPARTIAL
JURY AND HIS DUE PROCESS RIGHT TO A FAIR
TRIAL BECAUSE OF IMPROPER CHARGES TO
THE JURY[.]
POINT V
THE TRIAL JUDGE SHOULD HAVE RECUSED
HIMSELF FROM PRESIDING OVER
DEFENDANT'S TRIAL[.]
POINT VI
THE [PCR JUDGE] ERRED BY DENYING
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS ARGUMENTS IN HIS
[PCR] PETITION[.]
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Most of defendant's arguments are either barred by Rule 3:22-4 or Rule 3:22-5.
But even if that were not the case, we conclude defendant's contentions are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2). We affirm for the extensive reasons given by the PCR judge and add
the following remarks.
When a PCR judge does not hold an evidentiary hearing, this court's
standard of review is de novo as to both the factual inferences drawn by the
judge from the record and the judge's legal conclusions. State v. Blake, 444 N.J.
Super. 285, 294 (App. Div. 2016).
"The standard for an ineffective assistance of counsel claim is . . . the
same under both the United States and New Jersey Constitutions." State v.
Gideon, 244 N.J. 538, 550 (2021). To establish a violation of the right to the
effective assistance of counsel, a defendant must meet the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in
State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that counsel's
performance was deficient. . . . [And] [s]econd, the defendant must show that
the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
To meet the first prong, a defendant must show "that counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
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the Sixth Amendment." Ibid. Reviewing courts indulge in a "strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance[.]" Id. at 689. To meet the second prong, a defendant
must show that counsel's errors created a "reasonable probability" that the
outcome of the proceedings would have been different if counsel had not made
the errors. Strickland, 466 U.S. at 694. Defendant has not demonstrated either
prong.
The Strickland/Fritz two-pronged standard also applies to claims of
ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super.
508, 513 (App. Div. 2007). The hallmark of effective appellate advocacy is the
ability to "winnow[] out weaker arguments on appeal and focus[] on one central
issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745,
751-52 (1983). A brief that raises every colorable issue runs the risk of burying
good arguments in a "verbal mound made up of strong and weak contentions."
Id. at 753. Failure to pursue a meritless claim—like here—does not constitute
ineffective assistance. State v. Webster, 187 N.J. 254, 257 (2006). Appellate
counsel has no obligation to raise spurious issues on appeal. Ibid.A defendant is only entitled to an evidentiary hearing when he or she "'has
presented a prima facie [claim] in support of [PCR],'" meaning that a defendant
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"must demonstrate a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
State v. Preciose, 129 N.J. 451, 463 (1992)). A defendant "must do more than
make bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim entitling him to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the
burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350
(2012). We "view the facts in the light most favorable to a defendant to
determine whether a defendant has established a prima facie claim." Preciose,
129 N.J. at 463-64. On this record, an evidentiary hearing was unwarranted.
Affirmed.
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