NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Shawn Johnson appeals the Law Division's January 7, 2011 order dismissing his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Based on a tip received from a confidential informant, members of the Camden Police Department initiated a surveillance of co-defendant Pedro Rivera. A few days later, while observing Rivera's movements, Detective Shane Sampson followed Rivera's vehicle when it stopped at Johnson's house. Rivera remained in his vehicle and beeped the horn. Johnson came out of the house and approached the rear of the blue Pontiac Sunbird parked on the street behind Rivera's vehicle. Sampson observed Johnson as he "opened the trunk, bent down to his ... feet, appear[ing] to be tying his shoes ... for a couple of seconds, came up in one motion, [and] placed something in the back of the trunk that had a barrel and a handle on it." Based on his experience, Sampson believed Johnson had placed a handgun in the trunk of the Sunbird. Johnson then entered the driver's side of the Sunbird. River got out of his vehicle and joined Johnson in the Sunbird.

Sampson continued his observations as Rivera "lean[ed] back," "remove[d] something from his waist area," and handed a black plastic bag to Johnson, who "took the bag" and "put[] it in his left [side] pocket." According to Sampson, the black bag was "crumpled up" and small enough that he would not have been able to see it had he not been using binoculars. Johnson and Rivera then drove away in the Sunbird.

Concluding that he had witnessed an illegal drug transaction, Sampson radioed for backup units to stop the Sunbird. When he arrived at the scene where the Sunbird had been stopped, Sampson observed the Sunbird "in the middle of the street, parked on an angle with the driver's side door ... open." Johnson was running from the vehicle. Sampson got out of his unmarked vehicle, "yelling `police, stop.'" Sampson saw Johnson reach into his pocket, remove the black bag, and throw it to the ground. The black bag contained a "[s]maller sandwich bag containing a white rock substance" later identified as cocaine. When Sampson looked in the Sunbird's trunk, he found a handgun loaded with hollow point bullets. Further investigation revealed that the vehicle was registered to Johnson's wife, Keysha.1

Sampson returned to Johnson's house with some of the other officers, and knocked at the door. Keysha "came to [a second floor] window, [and] asked who it was." Sampson identified himself and asked whether she was Johnson's wife. Keysha acknowledged that she was. Sampson told Keysha about Johnson's arrest and asked whether she would "consent or let [them] look through the house." He advised Keysha that she did not have to consent, but "she said yeah you can go ahead and search the house." Keysha also signed a consent form.

During the search, the police recovered a coffee grinder with a white powdery substance in the grinder area, a digital scale with a white powdery substance on it, numerous small clear and blue plastic bags of the type used to package and sell illegal drugs, a box of ammunition in a night stand, a revolver in a dining room hutch, and a bag of marijuana on the top of a dresser.

Johnson waived his Miranda2 rights at the police station. He gave a statement in which he acknowledged that the items found in the home belonged to him.

Johnson and Rivera were indicted in December 2001. Johnson was charged with second-degree possession of a controlled dangerous substance (CDS) with intent to distribute (Count 3) (N.J.S.A. 2C:35-5(b)(2)); two counts of third-degree possession of CDS with intent to distribute within 1000 feet of school property (Counts 4 and 6) (N.J.S.A. 2C:35-7); third-degree possession of CDS (Count 5) (N.J.S.A. 2C:35-10(a)); fourth-degree possession of CDS with intent to distribute (Count 7) (N.J.S.A. 2C:35-5(b)(12)); third-degree unlawful possession of a handgun (Count 8) (N.J.S.A. 2C:39-5(b)); fourth-degree possession of prohibited device (hollow nose bullets) (Count 9) (N.J.S.A. 2C:39-3(f)); second-degree firearm possession during drug distribution (Count 10) (N.J.S.A. 2C:39-4.1(a)); fourth-degree resisting arrest (Count 11) (N.J.S.A. 2C:29-2(a)); and second-degree certain persons not to have weapons (Count 12) (N.J.S.A. 2C:39-7(b)).

Johnson's motion to suppress the physical evidence was denied following an evidentiary hearing in June 2002. His motion to suppress his recorded statement to police was denied on the first day of the trial, April 15, 2003, and the statement was subsequently played to the jury. The trial continued until April 25. The trial judge dismissed count six on April 23, the same day that Johnson, who had previously been released on bail, failed to appear for trial. The trial proceeded in his absence.

Johnson was convicted on counts five, eight, nine, ten and eleven, with a mistrial on counts three and four, and an acquittal on count seven. Johnson was then tried on count twelve, the certain persons offense, and was found guilty.

Johnson remained a fugitive until his November 2004 arrest on unrelated charges. He was sentenced on January 14, 2005. The trial judge granted the State's motion for an extended term on count twelve, and sentenced Johnson to seventeen years subject to eight and one-half years of parole ineligibility. Count eight was merged into count twelve. Counts three and four were dismissed at the request of the State. The judge imposed the following additional sentences, to run concurrent to each other but consecutive to the first sentence: five years on count five; one year on count nine; five years on count ten; and one year on count eleven. Consequently, the aggregate sentence was twenty-two years imprisonment with a parole ineligibility period of eight and one-half years.

Johnson appealed and we affirmed the conviction, but remanded for resentencing on count twelve in accordance with the Supreme Court's then recent decision in State v. Pierce, 188 N.J. 155 (2006). State v. Johnson, No. A-3192-04 (App. Div. May 6, 2008) (slip op. at 18). The Supreme Court denied Johnson's petition for certification. State v. Johnson, 196 N.J. 465 (2008). On September 5, 2008, Johnson was resentenced to the same sentence on count twelve. He did not appeal that sentence.

Johnson filed a pro se petition for PCR in April 2009. He subsequently secured representation, and his attorney filed a supplemental brief in December 2009. The PCR judge heard oral argument on January 7, 2011. Following argument, the judge placed an oral decision on the record, concluding that Johnson's claims were procedurally barred and, in any event, substantively without merit. The judge entered an order dismissing the petition the same day. This appeal followed.

II.

Johnson raises the following issues on appeal:

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S.Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Johnson argues that the PCR judge erred in failing to hold an evidentiary hearing and denying relief. He contends that his trial counsel "failed to conduct cross-examination and direct examination in an appropriate manner," "failed to lay a proper foundation for the exhibits moved into evidence," "failed to consult with defendant in a meaningful manner," and "failed to conduct adequate pre-trial investigation and failed to take the necessary steps to present a defense." He also argues that his appellate counsel was ineffective, and that counsel should have appealed the sentence following the remand. In addition, he argues that his claims were not procedurally barred under Rule 3:22-4.

Although the decision to order an evidentiary hearing pursuant to a PCR petition is discretionary under Rule 3:22-10, our Supreme Court has stated that PCR courts

"[I]n determining the propriety of an evidentiary hearing, the PCR court should ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed `in the light most favorable to defendant.'" Ibid. (quoting Preciose, supra, 129 N.J. at 463). An evidentiary hearing on an ineffective assistance of counsel claim is therefore required only where the defendant has established a prima facie case which alleges facts not already part of the record. State v. Taccetta, 351 N.J.Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002); see also Preciose, supra, 129 N.J. at 462.

To allege a prima facie ineffective assistance of counsel claim, the defendant must show first that counsel's performance was deficient, and second, that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Johnson argues that his claims were not procedurally barred under Rule 3:22-4 because application of the bar would result in "fundamental injustice ... contrary to the state or federal constitution" and because his claims raise important constitutional issues. See R. 3:22-4(a)(2) and (3). The State disagrees, arguing that the claims were procedurally barred because Johnson failed to raise the issues on direct appeal. The State further argues that in any event, no prejudice resulted from invocation of the procedural bar because the PCR judge denied Johnson's claims for relief on their substantive merits as well.

Rule 3:22-4(a) provides that "[a]ny ground for relief not raised in the proceedings resulting in the conviction ... is barred from assertion in a PCR proceeding," unless

It is a well-settled principle that "post-conviction proceedings are not a substitute for direct appeal." State v. Cerbo, 78 N.J. 595, 605 (1979); State v. Cacamis, 230 N.J.Super. 1, 5 (App. Div. 1988), certif. denied, 114 N.J. 496 (1989). However, the procedural bar will not be applied if it would result in a fundamental injustice, which occurs "if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise `wrought a miscarriage of justice for the individual defendant.'" Mitchell, supra, 126 N.J. at 587 (quoting State v. Laurick, 120 N.J. 1, 10, cert. denied, 498 U.S. 967, 11 S.Ct. 429, 112 L. Ed. 2d 413 (1990)).

We conclude that the PCR judge correctly ruled that Johnson failed to meet the Mitchell standard because his substantive ineffective-assistance claims are without merit. Nevertheless, we, like the PCR judge, will examine the merits of Johnson's contentions.

Johnson first argues that his trial counsel "failed to conduct cross-examination and direct examination in an appropriate manner," alleging that trial counsel "repeatedly had objections sustained regarding his questioning," counsel had an "inability ... to ask direct questions to the defense's witnesses," the court had to "direct trial counsel in how to properly ask questions of its own witnesses," and counsel used "open-ended questions on cross-examination." Johnson asserts that these errors prevented trial counsel from mounting an adequate defense.

In rejecting Johnson's contention, the PCR judge observed that

We agree with the judge that Johnson has failed to demonstrate any prejudice from his trial counsel's manner of direct and cross-examination.

Johnson further contends that trial counsel "failed to lay a proper foundation for the exhibits moved into evidence" and was thus "denied his right to conduct an adversarial testing of the State's case and his right to confront witnesses against him." The PCR judge found that

We agree. Johnson was not unduly prejudiced by counsel's performance because the trial judge's rulings were based on the merits of the evidence at issue, rather than the manner in which they were offered.

Johnson argues that his trial counsel "failed to consult with defendant in a meaningful manner" and "failed to conduct adequate pre-trial investigation and failed to take the necessary steps to present a defense." These are bare assertions and were properly rejected by the PCR judge. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Johnson fails to supply such a factual basis to support his allegations. In addition, we note that there was overwhelming evidence of guilt. Nevertheless, trial counsel was successful in obtaining an acquittal on one count and a mistrial on two other counts.

Johnson's reliance on "additional errors," including that trial counsel "failed to file a motion for severance," "failed to argue for a `false to one' charge," "failed to object to the flight charge," "failed to present an affirmative defense that [Johnson] did not own or rent the house in question where one of the firearms and some of the drugs were found," "failed to investigate and ultimately raise as an issue as to whether or not there were permits for the weapons and as to whether or not the weapons were operable," "failed to seek out and call, as a witness, individuals who could testify as to the chain of evidence for the State's evidence," and "failed to adequately challenge the State's motion for an extended term" are equally conclusory, unsupported by factual bases, and, most significantly, would not have led to a different result.

We have held that "an otherwise valid conviction will not be upset" merely because a defendant is dissatisfied "with counsel's exercise of judgment" during trial. State v. Coruzzi, 189 N.J.Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983). Strategic miscalculations or trial mistakes are insufficient to warrant reversal "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." State v. Buonadonna, 122 N.J. 22, 42 (1991) (quoting State v. Dennis, 43 N.J. 418, 428 (1964)) (internal quotation mark omitted). Johnson has simply not demonstrated that trial counsel's supposed "mistakes" prevented him from receiving a fair trial, and his claims are thus without merit.

Johnson next argues that his appellate counsel was ineffective for failing to argue on appeal that trial counsel had been ineffective. We note initially that we generally do not consider allegations concerning ineffective assistance of counsel on direct appeal because they usually involve issues outside of the trial record. Preciose, supra, 129 N.J. at 460. In any event, the Supreme Court has held that, if appellate counsel would have been unsuccessful had an issue been raised on appeal, there is no merit to an ineffective assistance of appellate counsel claim. See State v. Harris, 181 N.J. 391, 499 (2004), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L. Ed. 2d 898 (2005). Because Johnson's claims of ineffective assistance of trial counsel are without merit, we hold that his claim that appellate counsel failed to raise them on direct appeal is also without merit.

Finally, Johnson argues that he received ineffective assistance of counsel following his resentencing because, "despite his request, counsel failed to file a notice of appeal to challenge the resentencing." We note, however, that there is no certification from Johnson asserting that he requested his resentencing attorney to file an appeal from the resentencing or that counsel was ineffective in failing to file an appeal.

Johnson alleges that, had there been an appeal, he would have challenged the extended-term sentencing and the imposition of consecutive sentences. The PCR judge correctly held that there was "no question that defendant was eligible for extended-term sentencing under the [Persistent Offender] statute because the statute is essentially a mathematical formula based on the age of the defendant at the time of various convictions and the existence of at least two separate convictions." Johnson met those statutory requirements. N.J.S.A. 2C:44-3(a). The sentencing judge reiterated that "the defendant had six indictable convictions in excess or in addition to the two that make him minimally eligible, and in light of the seriousness of the conviction, ... I find that an extended term sentence is necessary for the protection of the public."

Concurrent or consecutive sentences are at the discretion of the sentencing judge. See State v. Carey, 168 N.J. 413, 422 (2001) (citing N.J.S.A. 2C:44-5(a)). The Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed. 2d 308 (1986), set forth general criteria to be weighed when considering consecutive or concurrent sentences, including:

The criteria "generally concentrate on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Baylass, 114 N.J. 169, 180 (1989).

Consecutive sentencing is appropriate for convictions involving separate and distinct elements which do not merge. See State v. Mosch, 214 N.J.Super. 457, 465 (App. Div. 1986), certif. denied, 107 N.J. 131 (1987). A "court may look not only to the separate, distinct and dissimilar nature of the offenses for which a defendant is convicted, but may also consider the relevant aggravating and mitigating circumstances." Id. at 466. Indeed, "[s]ometimes circumstances will indicate that defendant is the type of repetitive offender not likely to be rehabilitated and, therefore, should be incarcerated under consecutive sentences for the protection of the public." Id. at 464.

Given Johnson's record and the nature of the certain-persons offense, we find no error in the judge's determination to impose a consecutive sentence for that offense.

III.

In summary, we are satisfied that the PCR judge reached the correct conclusions with respect to each of Johnson's allegations of ineffective assistance of counsel, both singularly and taken together. Consequently, we affirm the order on appeal.

Affirmed.