STATE OF NEW JERSEY VS. B.H.M. (11-08-1485, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3120-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
B. H. M.,
Defendant-Appellant.
________________________
Submitted November 16, 2020 - Decided March 22, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 11-08-1485.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Ednin D. Martinez, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant appeals from a December 20, 2018 order denying his petition
for post-conviction relief (PCR) without an evidentiary hearing. Judge John A.
Young, Jr. entered the order and rendered a thoughtful written opinion. We
affirm.
This case arises from a domestic violence incident in which defendant
knocked his estranged wife unconscious and broke her eye socket. Defendant
audio-recorded much of the altercation on his smartphone. The couple's young
son, J.M.,1 was present and can be heard screaming at his father in the sound
recording, "why did you do that?" Defendant replied, "Because she was hitting
me. I am defending myself [J.M.], okay. I am defending myself."
At trial, the jury acquitted defendant of second-degree aggravated assault
(serious bodily injury), N.J.S.A. 2C:12-1(b)(1) but found him guilty of third-
degree aggravated assault (significant bodily injury), N.J.S.A. 2C:12-1(b)(7),
and of endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was
sentenced to a four-year term of probation during which he was required to serve
270 days in the Hudson County jail. We affirmed the convictions on direct
appeal. State v. B.H.M., No. A-2660-14 (App. Div. February 16, 2017).
1
We use initials to protect the confidentiality of the victim in this matter. R.
1:38-3(d)(9).
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2
Defendant raises the following argument for our consideration:
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM TRIAL COUNSEL
REGARDING HIS FAILURE TO INTERVIEW J.M.
[the couple's son] AND ASSESS HIS CREDIBILITY
AS A WITNESS.2
We are satisfied from our review of the record that the PCR judge did not
abuse his discretion in finding that defendant failed to establish a prima facie
claim of ineffective assistance of counsel to warrant an evidentiary hearing. We
affirm substantially for the reasons set forth in Judge Young's written opinion.
We add the following remarks.
I.
The scope of our review is limited. We review a court's decision to deny
a PCR petition without an evidentiary hearing for abuse of discretion. State v.
2
In his petition for PCR, defendant also claimed that his trial counsel did not
argue self-defense in his summation. As the PCR judge noted, that contention
is belied by the trial transcript, which shows that counsel argued on three
occasions in his closing argument that defendant acted in self-defense. As we
noted in our prior opinion, "[d]efendant admitted hitting [his estranged wife]
once, but claimed he did so in self-defense." State v. B.H.M., No. A-2660-14
(App. Div. Feb. 16, 2017) (slip op. at 3). The jury, moreover, was properly
instructed on that defense. Defendant does not repeat his self-defense
contention in his brief on appeal and thus we deem this argument to be waived.
See Morgan v. Raymours Furniture Co., Inc., 443 N.J. Super. 338, 340 n.1 (App.
Div. 2016). See also State v. Smith, 43 N.J. 67, 75 (1964).
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Preciose, 129 N.J. 451, 462 (1992). An evidentiary hearing on a PCR petition
is only required when a defendant establishes "a prima facie case in support of
[PCR]," the judge determines that there are disputed issues of material fact "that
cannot be resolved by reference to the existing record," and the judge finds that
"an evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-
10(b); see also State v. Porter, 216 N.J. 343, 355 (2013). In contrast, a defendant
is not entitled to an evidentiary hearing if the "allegations are too vague,
conclusory, or speculative[.]" State v. Marshall, 148 N.J. 89, 158 (1997); see
also Porter, 216 N.J. at 355. When determining whether to grant an evidentiary
hearing, the PCR [judge] must consider the facts in the light most favorable to
the defendant to determine whether defendant has established a prima facie
claim. Preciose, 129 N.J. at 451, 462–63. However, a defendant must allege
specific facts and evidence supporting his allegations. State v. Cummings, 321
N.J. Super. 158, 170 (1999) ("[I]n order to establish a prima facie claim, a
[defendant] must do more than make bald assertions that he was denied the
effective assistance of counsel.").
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must meet the two-prong test established in Strickland v. Washington,
466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz,
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105 N.J. 42, 58 (1987). The first prong of the Strickland/Fritz test requires the
defendant to show that his or her counsel's performance was deficient.
Strickland, 466 U.S. at 687. To do so, a defendant must establish that counsel's
alleged acts or omissions "were outside the wide range of professionally
competent assistance." Id. at 690. This requires a showing "that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id. at 687.
The second prong of Strickland/Fritz requires the defendant to "show that
the deficient performance prejudiced the defense." Ibid. The defendant must
establish "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.
"[I]f counsel's performance has been so deficient as to create a reasonable
probability that these deficiencies materially contributed to defendant's
conviction, the constitutional right will have been violated." Fritz, 105 N.J. at
58.
II.
Defendant maintains he is entitled to an evidentiary hearing to substantiate
his claim that trial counsel rendered ineffective assistance by failing to
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investigate the potential trial testimony of his son, who was six years old at the
time of the domestic violence incident. Defendant argues the child would have
corroborated his self-defense argument.
The failure to conduct an adequate pretrial investigation may give rise to
an ineffective assistance claim. Preciose, 129 N.J. at 461. See also Porter, 216
N.J. at 353, 357 (2013) (remanding for an evidentiary hearing when defendant
made a prima facie showing of ineffective assistance based on failure to
investigate an alibi defense). However, in this instance, as Judge Young
emphasized, defendant has not provided an affidavit or certification as to what
the child would have said if called as a witness. The PCR judge thus concluded
it was mere speculation that the child's testimony would have been beneficial to
defendant. We agree with Judge Young that defendant's argument is mere
speculation not supported by proof in the form of an affidavit or certification.
The judge also found that trial counsel's decision not to call the child as a
witness was a strategic decision within the wide range of competent professional
assistance. We agree with that conclusion as well. In State v. Arthur, our
Supreme Court explained that "[b]ecause of the inherent difficulties in evaluating a
defense counsel's tactical decisions . . . during trial, 'a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
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professional assistance[.]'" 184 N.J. 307, 318–19 (2005) (quoting Strickland, 466
U.S. at 689). The Court further commented, "[d]etermining which witnesses to
call to the stand is one of the most difficult strategic decisions that any trial
attorney must confront." Id. at 320. The Court held that "like other aspects of
trial representation, a defense attorney's decision concerning which witnesses to
call to the stand is 'an art,' . . . and a court's review of such a decision should be
'highly deferential.'" Id. at 321 (quoting Strickland, 466 U.S. at 693, 689).
In these circumstances, we believe counsel's decision not to call a six-
year-old boy to testify why his father struck his mother is entitled to deference
under Strickland/Fritz analysis.
We likewise reject defendant's argument that we should remand to the
PCR court for an evidentiary hearing "with testimony taken from trial counsel
regarding his failure to contact and interview J.M. and assess his credibility as
a witness." Defendant has not presented an affidavit or certification as to what
trial counsel would say if called as a witness to explain his trial strategy and
pretrial preparation. Defendant has thus failed to establish a prima facie case
under the two-prong Stickland/Fritz test. See Cummings, 321 N.J. Super. at
170.
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To the extent we have not addressed them, any additional arguments
raised by defendant lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
Affirmed.
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