NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3298-15T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL C. HARRIS, Defendant-Appellant. _________________________________________________ Submitted August 15, 2017 – Decided September 26, 2017 Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-09-0503.

Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the briefs).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM After his motion to suppress was denied, defendant Michael C. Harris pled guilty to second-degree possession of a firearm by persons previously convicted of certain offenses, N.J.S.A. 2C:39- 7(b). The judge denied defendant's motion to withdraw his guilty plea pursuant to State v. Slater, 198 N.J. 145 (2009), and sentenced defendant to five years' imprisonment with a five-year period of parole ineligibility. We affirmed defendant's conviction on direct appeal. State v. Harris, No. A-1576-11 (App. Div. July 12, 2013). The Supreme Court denied his petition for certification. 217 N.J. 293 (2014).

Defendant filed a pro se petition for post-conviction relief (PCR), alleging police improperly obtained consent to search the vehicle he was driving at the time of his arrest, from the owner of the car, Tatiana Danzo. Police seized a shotgun from the trunk of the car. See Harris, supra, slip op. at 3. The court appointed PCR counsel, who filed a brief that raised claims of ineffective assistance of counsel (IAC). Specifically, defendant contended that trial counsel failed to argue defendant's arrest was illegal and police coerced Danzo into consenting. He further claimed that Danzo would have stated she was coerced, but trial counsel failed to question her or call her as a witness at the suppression hearing. Lastly, PCR counsel contended defendant did not plead guilty knowingly and voluntarily because of trial counsel's failure to adequately raise the consent issue.

The PCR judge, who denied the motion to suppress, accepted defendant's guilty plea and sentenced defendant, heard oral 2 A-3298-15T4 argument on the petition. In a written opinion that accompanied his order, the judge concluded "[t]he issues of third-party consent and voluntariness of the consent were litigated before the Appellate Division and . . . specifically denied." He further determined that defendant provided "no evidence to support his contention that Ms. Danzo was coerced" into giving consent. The judge denied the petition without an evidentiary hearing and entered the May 18, 2015 order under review.

On appeal, appellant provided the following points for our consideration.

POINT I THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT THE TRIAL LEVEL. (RAISED BELOW) POINT II TRIAL COUNSEL'S FAILURE TO ARGUE THAT THE ARREST OF DEFENDANT WAS ILLEGAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (RAISED BELOW) POINT III THE PCR COURT ERRED IN FINDING THAT DEFENDANT'S CLAIM WAS BARRED AS PREVIOUSLY LITIGATED, PURSUANT TO RULE 3:22-4 AND 5. (RAISED BELOW)

3 A-3298-15T4 POINT IV THE COURT ERRED IN FINDING THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO CALL A WITNESS AT THE SUPPRESSION HEARING. (RAISED BELOW) Having considered these arguments in light of the record and applicable legal standards, we affirm.

To establish an IAC claim, a defendant must satisfy the two- prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must demonstrate "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To satisfy prong one, [a defendant] ha[s] to "overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." "[I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is 'virtually unchallengeable.'" Mere dissatisfaction with a "'counsel's exercise of judgment'" is insufficient to warrant overturning a conviction.

[State v. Nash, 212 N.J. 518, 542 (2013) (third alteration in original) (citations omitted).]

4 A-3298-15T4 Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).

Our Rules anticipate the need to hold an evidentiary hearing "only upon the establishment of a prima facie case in support of post-conviction relief." R. 3:22-10(b). A "prima facie case" requires a defendant "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," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013). "[W]e 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) (citing 5 A-3298-15T4 State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

In Point III, defendant claims the PCR judge erred to the extent he concluded the IAC claims relating to Danzo's consent to search were procedurally barred. The PCR judge cited, without explanation, Rule 3:22-4 as barring the petition. That Rule forecloses a PCR claim that could have been raised at trial or on direct appeal, but was not. Ibid. Defendant's appellate brief fails to thoroughly address this issue, but clearly, defendant could have challenged the voluntariness of Danzo's consent at trial. However, Rule 3:22-4(a)(2) permits us to consider an IAC claim if "enforcement of the bar to preclude claims . . . would result in fundamental injustice." Rule 3:22-5 states "[a] prior adjudication upon the merits of any ground for relief is conclusive . . . in any post-conviction proceeding." We agree with defendant that we did not address the issue of Danzo's consent on direct appeal. See Harris, supra, slip op. at 4 (noting defendant did not dispute "that Danzo's consent was anything but knowing and voluntary"). We therefore consider the merits of defendant's arguments.

In Point IV, defendant argues trial counsel was ineffective for failing to call Danzo as a witness at the suppression hearing.

6 A-3298-15T4 The PCR judge concluded counsel made a strategic decision not to call Danzo.

Defendant admits that he provided no certification from Danzo or anyone else indicating defense counsel failed to interview Danzo. There is no certification leading to a conclusion that Danzo's testimony would have supported defendant's motion to suppress. The record is clearly inadequate to compel any evidentiary hearing on this aspect of defendant's IAC claim. Porter, supra, 216 N.J. at 355.

In Point II, defendant argues trial counsel was ineffective for failing to challenge the legality of his arrest. However, the testimony at the motion to suppress demonstrated defendant was driving Danzo's car with a suspended license. Police have the right to arrest for this violation. See State v. Pierce, 136 N.J. 184, 205 (1994) (citing N.J.S.A. 39:3-40) ("We first sustain the validity of the custodial arrest . . . for operating a motor vehicle during the period in which his driver's license had been suspended."). Trial counsel was not ineffective for failing to raise a losing argument. State v. Echols, 199 N.J. 344, 360-61 (2009).

To the extent we have not specifically addressed defendant's other arguments, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

7 A-3298-15T4 Affirmed.

8 A-3298-15T4