NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Eugene Wilson appeals from the April 23, 2012 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

A jury found defendant not guilty of murder, N.J.S.A. 2C:11-3(a)(1) and (2), but guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one), third-degree leaving a disabled victim at the scene, N.J.S.A. 2C:12-1.2 (count four), third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five), fourth-degree possession of a knife under circumstances manifestly inappropriate for its lawful use, N.J.S.A. 2C:39-4(d) (count six) and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts seven and eight). On appeal, we merged counts five and six with count one, acquitted defendant of count four and remanded for entry of an amended judgment of conviction. State v. Wilson, No. A-2234-06 (App. Div. Oct. 6, 2009) slip op. at 3, certif. denied, 201 N.J. 273 (2010). Defendant was sentenced on counts one, seven and eight, to a twenty-seven year term with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a consecutive five-year term on the remaining counts.

The facts underlying defendant's convictions as well as the trial proceedings are set forth in our opinion affirming his convictions and need not be repeated at length here. Wilson, supra, slip op. at 3-27. Defendant was convicted of stabbing his former girlfriend to death and then leaving their baby and her eight-year-old son alone with the body in her apartment. Defendant, who suffers from a seizure disorder, gave a statement to the police claiming not to remember the assault. He admitted that after smoking crack-cocaine he went to the victim's apartment, smoked more crack-cocaine in the bathroom, and later awoke next to her and saw she had been stabbed. At trial, he testified that the statement was untrue, claiming he had been drinking and smoking crack-cocaine at a friend's apartment and did not see the victim that night. The trial judge gave the jury an alibi charge. No diminished capacity charge was requested by defendant.

In his PCR appeal, defendant raises the following issues:

The standard of review of a PCR petition denial is whether the judge's findings were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we engage in "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted).

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). See also State v. Fritz, 105 N.J. 42, 57-58 (1987) (adopting the Strickland two-part test in New Jersey).

We agree that the PCR judge's reliance on Rule 3:22-4 to find that PCR was precluded by defendant's argument on appeal that the trial judge should have charged diminished capacity sua sponte is misplaced. In State v. Nash, our Supreme Court explained that a "petitioner is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal, R. 3:22-4(a), or that has been previously litigated, R. 3:22-5." 212 N.J. 518, 546 (2013). If a PCR petitioner had ample opportunity to raise a claim in the prior proceeding, then that claim is barred from being heard. R. 3:22-4(a). Defendant's argument on direct appeal that the judge should have sua sponte charged diminished capacity is not sufficiently similar to his PCR claim, that defense counsel was ineffective for not pursuing a diminished capacity defense, to preclude consideration on PCR. See State v. McQuaid, 147 N.J. 464, 484 (1997) (issues that are identical or "substantially equivalent" to those previously adjudicated on direct appeal are barred from review on PCR).

On PCR, defendant argues that his trial counsel should have pursued a diminished capacity defense because the evidence that defendant was at the scene and committed the killing was overwhelming. Defendant states in his brief that

We reject this argument. Defendant personally exercised his absolute right to testify. See State v. Savage, 120 N.J. 594, 626-27 (1990) (stating that a defendant's right to testify on his or her own behalf is guaranteed by the federal and state constitutions). He stated under oath that he was not at the victim's apartment on the night of her death. While this testimony might have been incredible, trial counsel did not have the ability to prevent defendant from testifying nor control the content of his testimony. Once defendant testified in the manner he did, counsel had no alternative but to argue to the jury in support of that testimony. The fact that defendant had a seizure disorder was not contested by the State, but counsel was strategically constrained in crafting a defense by defendant's testimony.

When challenging counsel's performance on PCR, a defendant must overcome a "strong presumption" that counsel's conduct during trial "fell within the range of reasonable professional assistance. ..." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L.Ed. 2d at 695. The Strickland Court further noted, "Strategy choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. at 696.

A trial court may hold an evidentiary hearing to determine whether counsel was ineffective. R. 3:22-10. However, the trial court should only hold an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington. ..." Id. at 463. Absent defendant's showing of a prima facie case, an evidentiary hearing is not required. Claims must be more than "bald assertions." State v. Cummings, 321 N.J.Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999). The PCR judge properly denied an evidentiary hearing here where defendant failed to assert a prima facie case.

Affirmed.