Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1962-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY BURKHALTER, Defendant-Appellant. __________________________ Submitted October 6, 2026 – Decided November 9, 2026 Before Judges Gooden Brown and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 14-04-0437. Jennifer N. Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Janetta D. Marbrey, Mercer County Prosecutor, attorney for respondent (Sierra F. Van Gilst, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Anthony Burkhalter appeals from the February 7, 2025 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm. Defendant was charged with others in a ninety-three-count indictment containing various gang related offenses. On June 10, 2016, defendant entered a negotiated guilty plea to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), reserving his right to appeal the denial of his Miranda1 motion. The convictions stemmed from two separate home burglaries and involved two separate victims. On March 10, 2017, defendant was sentenced to an aggregate twenty-one-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and parole supervision for life, N.J.S.A. 2C:43-6.4. He was also ordered to comply with the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23. The remaining charges against defendant were dismissed in accordance with the plea agreement. In an unpublished opinion, we affirmed defendant's convictions, rejecting his argument that the trial judge erred in denying his motion to exclude his 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1962-24 2 statements to police. State v. Burkhalter, No. A-3881-16 (App. Div. July 25, 2018) (slip op. at 6). Our Supreme Court denied certification, State v. Burkhalter, 236 N.J. 563 (2019). On January 22, 2024, defendant filed a self-represented petition for PCR. Assigned PCR counsel filed a supporting brief and certification prepared by defendant, averring defendant's appellate counsel was ineffective for failing to file a direct appeal on defendant's behalf despite defendant's request to do so . During oral argument, conducted on February 7, 2025, after acknowledging that a direct appeal challenging the Miranda ruling was filed on defendant's behalf, defendant argued instead that he received ineffective assistance of counsel (IAC) by his appellate attorney failing to challenge his sentence on appeal. The PCR judge denied the petition without an evidentiary hearing. In an oral opinion on the record, after recounting the facts and applying the governing legal principles, the judge found defendant's claim was an unsupported "bald assertion" as there was no credible evidence defendant specifically requested appellate counsel to raise a sentencing issue on appeal. This appeal followed. On appeal, defendant reprises the argument rejected by the PCR judge as follows: [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT A-1962-24 3 APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO ADVOCATE FOR A LOWER SENTENCE ON APPEAL. We begin by setting out the guideposts that inform our review. "We review the legal conclusions of a PCR judge de novo," State v. Reevey, 417 N.J. Super. 134, 146 (App. Div. 2010), but "review under the abuse of discretion standard the PCR court's determination to proceed without an evidentiary hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). "[W]here . . . no evidentiary hearing was conducted," as here, "we may review the factual inferences the [trial] court has drawn from the documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). An evidentiary hearing is only required when (1) a defendant establishes "a prima facie case in support of [PCR]," (2) the court determines that there are "material issues of disputed fact that cannot be resolved by reference to the existing record," and (3) the court determines that "an evidentiary hearing is necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354 (2013) (alteration in original) (quoting R. 3:22-10(b)); see also R. 3:22-10(e)(2) (providing "[a] court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory[,] or speculative"). A-1962-24 4 Indeed, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to [PCR], . . . then an evidentiary hearing need not be granted." Brewster, 429 N.J. Super. at 401 (omission in original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997)); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (explaining the mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions"). "To establish a prima facie case, [a] defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22- 10(b). Moreover, a defendant must make this showing "by a preponderance of the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002). "To meet this burden, the [defendant] must allege and articulate specific facts, 'which, if believed, would provide the court with an adequate basis on which to rest its decision.'" State v. Barclay, 479 N.J. Super. 451, 459 (App. Div. 2024) (quoting State v. Mitchell, 126 N.J. 565, 579 (1992)). Rule 3:22-2 recognizes five cognizable grounds for PCR, including a "[s]ubstantial denial in the conviction proceedings of [a] defendant's A-1962-24 5 [constitutional] rights," R. 3:22-2(a), which encompasses the Sixth Amendment right to the effective assistance of counsel at issue in this appeal, State v. Nash, 212 N.J. 518, 541-42 (2013). To establish a prima facie claim of IAC as contemplated under Rule 3:22-2(a), a defendant must demonstrate that the performance of counsel fell below the objective standard of reasonableness set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58 (1987), and that the outcome would have been different without the purported deficient performance. Nash, 212 N.J. at 541- 42. Stated differently, a defendant must show: "(1) 'counsel's performance was deficient'; and (2) 'the deficient performance prejudiced the defense.'" State v. Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023) (quoting Strickland, 466 U.S. at 687). To satisfy the first prong, a defendant must "show[] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment" and "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. "[I]n making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689. As such, a defendant "must overcome the A-1962-24 6 presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). "[F]ailure to present mitigating evidence or argue for mitigating factors" at sentencing, "even within the confines of [a] plea agreement," may support an IAC claim. State v. Hess, 207 N.J. 123, 154 (2011). Still, "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, 466 U.S. at 688-89. For that reason, "[t]he test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, 212 N.J. at 543. To satisfy the second Strickland/Fritz prong, "[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694). This prong generally requires that a defendant establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "That 'is A-1962-24 7 an exacting standard.'" State v. Gideon, 244 N.J. 538, 551 (2021) (quoting State v. Allegro, 193 N.J. 352, 367 (2008)). To establish the prejudice prong in the context of a guilty plea conviction, a defendant must show "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To that end, "a [defendant] must convince the court that a decision to reject the plea bargain" and "insist on going to trial" would have been "rational under the circumstances." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). That determination should be "based on evidence, not speculation," ibid., and "[s]olemn declarations in open court carry a strong presumption of verity," State v. Simon, 161 N.J. 416, 444 (1999) (alteration in original) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Although the same Strickland/Fritz test applies to both trial and appellate counsel, [a]ppellate counsel "need not advance every argument, regardless of merit, urged by the appellant," Evitts v. Lucey, 469 U.S. 387, 394 (1985), but "should bring to the court's attention controlling law that will vindicate A-1962-24 8 [the appellant]'s cause." State v. O'Neil, 219 N.J. 598, 612 (2014). Failure to do so constitutes ineffective assistance only if there is a "reasonable probability" that the outcome of the appeal would have been different. Id. at 611-12. Thus, to prove ineffective assistance of appellate counsel, a defendant must prove an underlying claim to relief is meritorious. State v. Morrison, 215 N.J. Super. 540, 547-51 (App. Div. 1987). [Barclay, 479 N.J. Super. at 460 (citations reformatted).] Applying these principles, we agree with the PCR judge's rejection of defendant's PCR petition. 2 Defendant failed to establish a prima facie IAC claim to warrant relief or an evidentiary hearing. Defendant was charged with thirty- six gang related crimes. He pled guilty to three offenses—two first-degree and one second-degree crime—and received an aggregate twenty-one-year NERA sentence in accordance with the plea agreement.3 At sentencing, the judge found aggravating factors three, six, and nine based on the high risk of re-offense, 2 We note defendant's petition was untimely pursuant to Rule 3:22-12(a)(1) prohibiting the filing of a PCR petition "more than 5 years after the date of entry . . . of the judgment of conviction . . . ." However, the PCR judge did not reject the petition on this basis. 3 Defendant was sentenced to eleven years in prison, subject to NERA, on one of the aggravated sexual assault counts; a consecutive term of ten years in prison, subject to NERA, on the other; and a concurrent term of five years in prison, with a three-and-one-half-year period of parole ineligibility, on the unlawful weapons possession count. A-1962-24 9 defendant's extensive prior criminal history, and the need for deterrence, and no mitigating factors. See N.J.S.A. 2C:44-1(a)(3)(6)(9). Defendant cannot establish that a challenge to his sentence on appeal would have been meritorious and would have resulted in a more lenient sentence. See State v. Fuentes, 217 N.J. 57, 70 (2014) ("Appellate courts review sentencing determinations in accordance with a deferential standard. The reviewing court must not substitute its judgment for that of the sentencing court."). Defendant relies on Roe v. Flores-Ortega, 528 U.S. 470 (2000) to support his argument. In Roe, applying the Strickland standard to evaluate the defendant's IAC claim to a defense attorney's failure to file an appeal, the Court held that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable," Roe, 528 U.S. at 477, and "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful [IAC] claim entitling him to an appeal," id. at 484. Here, it is undisputed that a direct appeal was filed on defendant's behalf. Defendant asserts he received IAC because his appellate attorney failed to challenge his sentence on appeal as he had requested. However, even if that A-1962-24 10 were the case, "[appellate counsel] need not advance every argument, regardless of merit, urged by the appellant." Evitts, 469 U.S. at 394. Affirmed. A-1962-24 11