STATE OF NEW JERSEY VS. ANTONIO JONES (12-05-1001, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-3906-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTONIO JONES,
Defendant-Appellant.
________________________
Submitted May 19, 2021 – Decided July 29, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 12-05-1001.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anthony J. Vecchio, Designated Counsel, on
the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; Dina R. Khajezadeh,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Antonio Jones appeals from a March 26, 2020 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm, substantially for the reasons set forth in Judge Guy P. Ryan's well-
reasoned written opinion. We add only the following brief comments.
Following a six-day jury trial, defendant was convicted of first-degree
robbery, N.J.S.A. 2C:15-1, and fourth-degree obstruction of the administration
of law, N.J.S.A. 2C:29-1. These charges stem from an incident where defendant
robbed a student with a novelty gun in Lakewood Township. One of the items
stolen was a shekel coin that was later discovered in defendant's pocket when he
was arrested. On June 27, 2014, defendant was sentenced to an extended term
of life without parole, N.J.S.A. 2C:43-7.1(a), and a concurrent eighteen-month
sentence on the obstructing the administration of law conviction.
Defendant filed a direct appeal and, after the matter was resubmitted for
a decision following remand, we rejected his arguments and affirmed his
conviction. State v. Jones, A-063-14 (App. Div. Aug. 30, 2017) (slip op. at 10-
11). In rejecting defendant's speedy trial violation argument, we noted:
On October 24, 2012, defense counsel made another
request for additional discovery: additional MVR
videos from a second patrol car, a booking video and
criminal investigation pictures taken by the Sheriff's
Department. The trial court issued an order requiring
that the additional discovery be provided by January 14,
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2013. It was ultimately determined that the booking
video . . . did not exist . . . .
[Id. at 4-5.]
Defendant unsuccessfully petitioned the Supreme Court for certification. State
v. Jones, 232 N.J. 301 (2018).
In lieu of restating the evidence presented at trial, we incorporate by
reference the facts described in our unpublished opinion. See Jones, slip op. at
11-14. On May 18, 2018, defendant filed a pro se petition for PCR. Defendant's
appointed counsel filed a brief, arguing that his trial counsel was ineffective for
(1) failing to determine whether there were cameras in the booking room when
defendant was arrested; and (2) not calling an allegedly exculpatory witness.
On March 26, 2020, following two days of oral argument, Judge Ryan
issued a twenty-four-page written opinion denying defendant's PCR petition.
The judge, citing this court's opinion, found that his trial counsel had requested
the booking video be produced. Moreover, the judge correctly noted that this
court concluded that no video actually existed. The judge determined that the
"ambiguous" testimony from an officer with "another police agency" 1 was
insufficient to establish a prima facie claim of ineffective assistance of counsel.
1
Specifically, the Ocean County Sheriff's Department.
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In that regard, the judge emphasized the testimony from the officer of the
Lakewood Police Department that there were no cameras in the booking area
when defendant was arrested. The judge also highlighted that defendant did not
submit "an affidavit from anyone with knowledge that any cameras existed in
2012 [or] that any video existed."
Judge Ryan also determined defendant's contention that his trial counsel
was ineffective in failing to call a clerk from the liquor store as a witness was
nothing more than a "bald assertion." Defendant claims that, immediately prior
to his arrest, he left a liquor store and was inadvertently given the shekel coin
by the clerk. The judge, however, noted that defendant failed to submit an
affidavit or certification "from the liquor store employee demonstrating any
exculpatory information," nor did he submit any "liquor store records."
On appeal, defendant raises the following argument for our consideration:
POINT I
THE PCR COURT ERRED IN NOT GRANTING
DEFENDANT AN EVIDENTIARY HEARING
WHERE DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE OF TRIAL
COUNSEL'S FAILURE TO CONDUCT AN
ADEQUATE PRE-TRIAL INVESTIGATION.
We find no merit in this argument. R. 2:11-3(e)(2).
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To establish a claim of ineffective assistance of counsel, a defendant must
satisfy a two-part test: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"
and (2) "the deficient performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984); accord State v. Fritz, 105 N.J. 42, 58
(1987) (adopting the two-prong Strickland test in New Jersey). A defendant is
only entitled to an evidentiary hearing when he "has presented a prima facie
claim in support of post-conviction relief," State v. Preciose, 129 N.J. 451, 462
(1992), meaning that a defendant must demonstrate "a reasonable likelihood that
his . . . claim will ultimately succeed on the merits." State v. Marshall, 148 N.J.
89, 158 (1997). A defendant bears the burden of establishing a prima facie
claim. State v. Gaitan, 209 N.J. 339, 350 (2012). Moreover, 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). The
decision to proceed without an evidentiary hearing is reviewed for abuse of
discretion. State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing
Marshall, 148 N.J. at 157-58).
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We conclude that, because defendant has failed to establish a prima facie
claim of ineffective assistance of counsel, Judge Ryan did not abuse his
discretion in denying defendant's request for an evidentiary hearing. See R.
3:22-10(b). We reject defendant's contention that his trial counsel was
ineffective in failing to obtain the purported booking video. As Judge Ryan
determined, this court previously found that defendant's trial counsel requested
the booking video, but no such video existed. Jones, slip op. at 4-5. In the
absence of any cognizable evidence to the contrary, defendant's contention is
nothing more than a bald assertion. See Cummings, 321 N.J. Super. at 170.
We are also unconvinced that defendant's trial counsel was ineffective in
failing to call the clerk from the liquor store as an exculpatory witness. "Where,
as here, the defendant asserts that his attorney failed to call witnesses who would
have exculpated him, he must assert the facts that would have been revealed,
'supported by affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification.'" State v. Petrozelli, 351 N.J.
Super. 14, 23 (App. Div. 2002) (quoting Cummings, 321 N.J. Super. at 170).
Defendant's failure to include a certification or affidavit from the liquor store
clerk is fatal to his claim.
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Affirmed.
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