Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1784-25 STATE OF NEW JERSEY, Plaintiff-Appellant, v. NYSHEED B. GLEATON, Defendant-Respondent. ________________________ Argued October 8, 2026 – Decided October 27, 2026 Before Judges DeAlmeida and Chase. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 22-06-0833. Josemiguel DeJesus Rodriguez, Assistant Prosecutor, argued the cause for appellant (Wayne Mello, Hudson County Prosecutor, attorney; Josemiguel DeJesus Rodriguez, of counsel and on the briefs). Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for respondent (Jennifer N. Sellitti, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief). PER CURIAM On leave granted, the State appeals from a December 17, 2025 Law Division order granting defendant Nysheed B. Gleaton's petition for post- conviction relief (PCR) without conducting an evidentiary hearing. We vacate and remand for an evidentiary hearing. I. On January 23, 2022, defendant encountered Rasheen Bostick on the streets of Jersey City and shot him multiple times with a nine-millimeter handgun. Bostick later died at Jersey City Medical Center. Defendant was arrested on February 27, 2022. He waived his Miranda1 rights, admitting firing the shots but insisted the victim posed a threat to his partner and infant child. He described the victim as a "high-value target" and stated "[he] had to get [the victim] before [the victim] got [him]." Subsequently, a Hudson County grand jury indicted defendant for: first- degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count two); and second- degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three). 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1784-25 2 On July 27, 2022, defendant pleaded guilty to count one, as amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). In exchange, the State agreed to: recommend a twenty-two-year prison sentence subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, followed by five years of parole supervision, dismiss the remaining counts of the indictment; and permit the sentence to run concurrently with any sentence imposed in a pending Bergen County matter. At the time of the shooting, defendant was twenty-three years old. He had a history of drug and alcohol use and two juvenile adjudications for theft, the latest of which was from 2014. As an adult, defendant had been arrested ten times and convicted in Pennsylvania of carrying firearms without a license in 2017. In February 2023, defendant appeared for sentencing. Defense counsel relied on defendant's age, mental-health history, academic records and Individualized Education Plan (IEP) findings, substance use history, and other developmental challenges in making mitigation arguments. Defendant also asserted he suffered from Post-Traumatic Stress Disorder (PTSD) because he was shot in the back of his thigh in late 2021. A-1784-25 3 The sentencing court gave "some weight" to aggravating factor three, "the risk that defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), and "significant weight" to aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), "the need for deterring the defendant and others from violating the law." The court reasoned defendant's criminal history reflected a pattern and "clear escalation" of firearm-related conduct. The only mitigating factor the sentencing court found was fourteen, "the defendant was under [twenty-six] years of age at the time of the commission of the offense," N.J.S.A. 2C:44-1(b)(14), but assigned it "little weight." Although the record reflected defendant had faced significant challenges in life, the sentencing court was not sure "[those challenges] were all completely cognitive." It noted the absence of documentation supporting defendant's asserted PTSD and the lack of expert evidence establishing any cognitive deficiency. The court assigned no weight to defendant's anxiety and depression, "little to no weight" to the asserted PTSD and ultimately found the aggravating factors outweighed the sole mitigating factor. Defendant was sentenced in accordance with the plea agreement. Defendant appealed from his sentence. After considering the matter on our sentencing oral argument calendar, we affirmed the sentence but remanded A-1784-25 4 solely to amend the judgment of conviction to reflect the proper aggravating and mitigating factors found by the sentencing court. State v. Gleaton, No. A-2346- 22 (App. Div. Jan. 10, 2024). Our Supreme Court denied certification. 257 N.J. 3 (2024). After his sentence to state prison, defendant underwent medical and psychological evaluations. According to a March 24, 2023 medical record, defendant attended a psychiatric evaluation with a doctor who diagnosed him with PTSD. In March 2025, represented by newly assigned counsel, defendant filed a PCR petition, alleging his sentencing counsel was ineffective for failing to obtain a pre-sentencing PTSD diagnosis and presenting an expert evaluation of his mental-health impairments at the time the crime was committed. Defendant relied on his post-sentence medical records to contend a pre-sentencing expert evaluation would have provided stronger support for mitigation. He also submitted a self-summary of these prison medical records. Defendant did not, however, submit any expert report explaining what opinion a mental -health expert retained before sentencing would have offered. However, he asserted such evidence would have supported the sentencing court giving greater weight to mitigating factor fourteen. A-1784-25 5 On December 17, 2025, the PCR judge issued an order and written opinion granting PCR and ordering resentencing without conducting an evidentiary hearing. The judge agreed with defendant's ineffective assistance of counsel claim regarding mitigating factor fourteen, finding his documented history of mental health was "significant" at sentencing and "strongly support[ed]" mitigating factor fourteen's application. The judge concluded such evidence would have caused the sentencing court to assign greater weight to mitigating factor fourteen, which would have affected the sentence. The PCR judge stayed his order to permit the State to seek leave to appeal. The State raises the following points on appeal: POINT I THE PCR COURT ERRED BY GRANTING RESENTENCING WITHOUT AN EVIDENTIARY HEARING. A. THE PCR COURT FAILED TO APPLY RULE 3:22-5. B. THE PCR COURT IMPROPERLY APPLIED STICKLAND2. C. THE PCR COURT'S SCOPE OF RELIEF WAS OVERBROAD. 2 Strickland v. Washington, 466 U.S. 668 (1984). A-1784-25 6 D. IF THIS COURT REMANDS FOR AN EVIDENTIARY HEARING ON WHETHER THE ABSENCE OF A PTSD EXPERT REPORT AT SENTENCING RESULTED IN A FINDING UNDER MITIGATION FACTOR FOURTEEN THAT WOULD NOT HAVE OTHERWISE OCCURRED, THIS COURT SHOULD REMAND TO A DIFFERENT PCR JUDGE. II. We afford deference to the PCR judge's factual findings when they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, we do not defer to legal conclusions or a PCR court's interpretation of the law, which are reviewed de novo. See id. at 540-41; State v. Gregory, 220 N.J. 413, 419-20 (2015); see also State v. Harris, 181 N.J. 391, 415 (2004). When reviewing a court's decision on a petition for PCR where no evidentiary hearing was conducted, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at 421); See also State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). If the court did not hear live witness A-1784-25 7 testimony or make credibility determinations, we owe no special deference to its assessment of the record. See Nash, 212 N.J. at 540. The mere filing of a PCR petition does not automatically entitle a defendant to an evidentiary hearing. Instead, Rule 3:22-10(b) provides: A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that [their] claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits. Consequently, if "an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to [PCR] " or "the defendant's allegations are too vague, conclusory, or speculative . . . an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997). III. A. We begin with the State's argument that Rule 3:22-5 bars defendant from asserting his ineffective assistance of counsel claim. It contends defendant has recast his unsuccessful direct-appeal claim into a PCR. We are not persuaded. A-1784-25 8 Claims of ineffective assistance of counsel are generally cognizable in a PCR petition, rather than on direct appeal, because these claims often rely on evidence outside the trial record. See State v. Preciose, 129 N.J. 451, 461 (1992); see State v. Dixon, 125 N.J. 223, 262 (1991); see also State v. Walker, 80 N.J. 187, 194 (1979). However, PCR cannot substitute for relitigating claims raised on direct appeal, and a defendant who relies on grounds that could have been raised earlier may be barred from PCR. See Preciose, 129 N.J. at 459. Rule 3:22-5 provides a prior adjudication upon the merits is conclusive whether made in the proceeding or any post-conviction proceeding. See R. 3:22- 5. Our Supreme Court has stated Rule 3:22-5precludes "consideration of an argument presented in [PCR] proceedings . . . only if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quoting Marshall, 148 N.J. at 150). In Marshall, 148 N.J. at 144, when a defendant filed for PCR following his unsuccessful direct appeal to challenge his murder conviction and death sentence, the Supreme Court noted the defense might have strategically "divid[ed] the [PCR] claims into discrete and narrow components" to avoid Rules 3:22-4 and 3:22-5. The Court considered whether the adjudication on direct appeal concerned "the same ground for relief" as the claims asserted in A-1784-25 9 the PCR petition and found the PCR court over broadened the application of Rule 3:22-5 to bar defendant's claims. Id. at 147 (internal quotation marks omitted). The Court also recognized such assessment may be subjective and caselaw in this area is scant. See Id. at 149. Here, defendant's direct appeal and PCR petition both concern the sentencing court's consideration of his mental health and mitigating factor fourteen, but they challenge different conduct. Although the two proceedings may both lead to the same relief, which is resentencing, the "grounds for relief" are different. On direct appeal, defendant challenged the sentencing court's decision, arguing his twenty-two-year sentence was excessive. Based on the record before it, the sentencing court acknowledged defendant's asserted PTSD may be "reasonable" but determined defendant was not so cognitively deficient as to not comprehend right from wrong. Therefore, the court assigned mitigating factor fourteen "little to no weight" because the record lacked documentation. On appeal, defendant argued there should have been greater weight accorded to this factor, because of his low I.Q. score, anxiety and depression, and asserted PTSD. We affirmed the sentence on the record before us. The direct appeal thus A-1784-25 10 resolved whether the sentence was proper based on the evidence presented at sentencing. Defendant's PCR petition challenged sentencing counsel's preparation and presentation of the mitigating evidence. He alleged counsel failed to obtain a PTSD diagnosis and an expert evaluation before sentencing and additional evidence would have supported greater mitigation. The PCR claim was different and arguably involved evidence outside the record because it called for an assessment of what counsel knew and did, what kind of investigation was reasonable, and whether the omitted evidence created a reasonable probability of a different sentence. Even assuming there was an overlap in the evidence, Rule 3:22-5 did not bar the court from considering the PCR claim because it was not identical or substantially equivalent to the mitigation argument raised on direct appeal. B. The State argues the PCR judge improperly applied both prongs of Strickland. It contends sentencing counsel's performance did not fall below the reasonable professional judgment standard. The State also asserts the judge made improper legal conclusions concerning how the omitted PTSD diagnosis would have created a reasonable probability of a different sentencing outcome. A-1784-25 11 To succeed on a claim of ineffective assistance of counsel, a defendant must establish by a preponderance of the evidence both prongs of the test set forth in Strickland, 466 U.S. at 687, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). See State v. Gaitan, 209 N.J. 339, 349-50 (2012). First, a "defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. A defendant must demonstrate "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Because the Constitution requires "reasonably effective assistance," an attorney's performance may not be attacked unless it was not "'within the range of competence demanded of attorneys in criminal cases'" and instead "fell below an objective standard of reasonableness." Id. at 687-88 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). "Judicial scrutiny of counsel's performance must be highly deferential[,]" and "every effort [must] be made to eliminate the distorting effects of hindsight[.]" Strickland, 466 U.S. at 689. We "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[,]" and "the defendant must overcome the presumption that, under the circumstances, the challenged action A-1784-25 12 [by counsel] 'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The defendant "must overcome the presumption that the attorney's decisions followed a sound strategic approach to the case." State v. Pierre, 223 N.J. 560, 578-79 (2015) (internal quotation marks omitted). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that [they] w[ere] denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "[R]ather, the defendant 'must allege facts sufficient to demonstrate counsel's alleged substandard performance.'" State v. Jones, 219 N.J. 298, 312 (2014) (quoting State v. Porter, 216 N.J. 343, 355 (2013)) (internal quotation marks omitted). Reasonable professional assistance does not require "'the best of attorneys'" but it simply requires the attorney to be "'not one so ineffective as to make the idea of a fair trial meaningless.'" State v. Hernandez-Peralta, 261 N.J. 231, 250 (2025) (quoting State v. Davis, 116 N.J. 341, 351 (1989)). Courts must strive to eliminate "'distorting effects of hindsight'" when evaluating counsel's conduct at the time. Pierre, 223 N.J. at 579 (quoting Strickland, 466 U.S. at 689). A-1784-25 13 Pursuant to these principles, the inquiry here is whether counsel's performance was objectively reasonable, not whether additional investigation could have produced a stronger mitigation case. The PCR judge described counsel's sentencing memorandum as "thorough on the law and science behind the creation of mitigating factor [fourteen]." The record shows counsel presented defendant's background. The memorandum addressed defendant's: school and IEP records, and Attention-deficit/hyperactivity disorder (ADHD) diagnosis. It recorded his anxiety and depression, substance use, and prior shooting. The memorandum argued for several mitigating factors and opposed the State's proposed aggravating factors. At sentencing, counsel reaffirmed defendant had a documented ADHD disability, IEP history, a history of drug and alcohol, anxiety, and depression. Counsel also raised defendant's PTSD, despite admitting there was no corroborating documentation from a doctor. However, sentencing counsel's awareness of defendant's claimed PTSD symptoms and prior shooting raised a legitimate question whether reasonable investigation required her to seek a formal diagnosis, expert evaluations, or additional time to obtain this information before sentencing. Indeed, the sentencing court expressly noted the lack of expert evidence when evaluating defendant's asserted PTSD. A-1784-25 14 Although the PCR judge determined counsel's deficiency was of constitutional magnitude, based on a post-sentence medical examination which noted defendant currently had PTSD. Further, the judge relied on defendant's own interpretation of the medical records. The PCR judge did not make any findings about why sentencing counsel elected not to obtain an expert report. Nor did he hear from sentencing counsel as to whether she made a "'reasonable investigation[] or [made] a reasonable decision [to] make[] [a] particular investigation[] unnecessary.'" State v. Savage, 120 N.J. 594, 618 (1990) (quoting Strickland, 466 U.S. at 691). We cannot infer a deficient performance solely from the later diagnosis and the sentencing judge's observation corroboration was missing. For these reasons, we are constrained to conclude the PCR judge mistakenly exercised his discretion in granting PCR without holding an evidentiary hearing. Under the second Strickland prong, a defendant must "'affirmatively prove'" with "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Gideon, 244 N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 693, 694). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, 466 U.S. at 694). Because prejudice is not A-1784-25 15 presumed, State v. Fisher, 156 N.J. 494, 500 (1998), the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceedings. United States v. Cronic, 466 U.S. 648, 659 n.26 (1984). The PCR judge concluded an expert would have caused the sentencing court to assign greater weight to mitigating factor fourteen. However, he did not explain why the change in weight created a reasonable probability of a lesser sentence only slightly above the mid-level range for aggravated manslaughter. The decision does not explain why an expert report would have influenced the sentencing court's decision to impose the sentence defendant agreed to before entering his plea. When, as here, the PCR judge credited defendant's version of events despite competing allegations and a remand is required for an evidentiary hearing to parse the allegations there may be a perception the judge was committed to their initial findings requiring us to remand the matter to a different PCR judge. State v. Carrillo, 469 N.J. Super. 318, 344 (App. Div. 2021) (citing In re D.L.B., 468 N.J. Super. 397, 420-21 (App. Div. 2021)); see also R. 1:12-1(d); Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2027) (stating "the appellate court has the authority to direct that a different judge consider other matters on remand and in subsequent proceedings A-1784-25 16 in order to preserve the appearance of a fair and unprejudiced hearing[.]"). To be clear, we do not question the PCR judge's fairness. Carillo, 469 N.J. Super. at 344. Rather, we remand to a different judge to ensure the fact-finding occurs on a clean slate given what is at stake for the parties. Finally, in remanding this matter, we express no opinion on the merits of the PCR petition. Vacated and remanded. We do not retain jurisdiction. A-1784-25 17