NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Alonzo E. Hill appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the judge properly found the evidence inadequate to sustain defendant's burden on the application, we affirm.

We described this matter on direct appeal as arising out of a "horrific series of events." State v. Hill, No. A-6583-95 (App. Div. Mar. 23, 1999) (slip op. at 7). Briefly, defendant, then in his early twenties, and two co-conspirators stole a station wagon from the driveway of a home in East Orange, while its owner, Sandra McKnight, unloaded groceries. Forcing McKnight into the backseat, defendant got behind the wheel to drive the station wagon away. Before he could, McKnight's husband came from the backyard to investigate the commotion, and defendant twice ran over him with the car. The three finally drove away with McKnight still captive. They emptied her pocketbook and split the hundred dollars they found inside three ways.

In his statement to the police, defendant claimed that McKnight started "bugging" as they drove along the Garden State Parkway, and that his fifteen-year old co-defendant, Tony Frazier, threatened her with a gun and suggested they throw her out of the car. Defendant testified at trial that McKnight begged them to release her, but he declined to do so because he feared she would call the police and they would be caught in the car. He claimed he intended to steal another car and then leave McKnight in the station wagon somewhere without the keys.

Looking for a car to replace the station wagon, the three came upon a Saab in a driveway in Roselle with its engine running. The third carjacker, James Lomack, got into the Saab and both cars drove off. The owner of the Saab, an off-duty Linden police officer, Durham, and his cousin gave chase in another car. In the ensuing high-speed pursuit, Lomack drew a gun and repeatedly shot at his pursuers. The officer returned fire with his service weapon. One of the bullets fired by Lomack grazed the officer's cousin and several hit their car. The chase ended when the officer lost the Saab as it turned onto the Parkway.

Defendant and Frazier drove to Newark to meet up with Lomack. They abandoned the station wagon near Vailsburg Park, after killing McKnight approximately two hours after they abducted her. The medical examiner testified McKnight died as a result of a single gunshot wound created by an assault weapon held against her head when fired. Each man claimed the other was the shooter.

Several weeks later, Lomack was killed in a shoot-out with police in an unrelated matter. In the course of investigating that incident, police linked Lomack to the McKnight murder, and then uncovered the role played by defendant and Frazier. When the police arrested defendant, he was in possession of a.38 caliber handgun that the State was unable to connect to the crimes and the keys to the stolen Saab.

Defendant was convicted by a jury in 1996 of second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and 2C:15-2; first-degree kidnapping, N.J.S.A. 2C:13-1b(1); two counts of first-degree carjacking, N.J.S.A. 2C:15-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3a; three counts of first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1; two counts of third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5f and 2C:39-5b; two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; murder, N.J.S.A. 2C:11-3a(1) and (2); and felony murder, N.J.S.A. 2C:11-3a(3). The judge sentenced defendant to five consecutive life terms with a total parole ineligibility term of one hundred and thirty-five years.

We affirmed defendant's conviction on direct appeal but remanded for resentencing, State v. Hill, No. A-6583-95 (App. Div. Mar. 23, 1999), and the Supreme Court denied certification, 161 N.J. 147 (1999). We found the trial court erred in imposing an extended term of life, with a thirty-five year mandatory minimum, for McKnight's murder because N.J.S.A. 2C:43-7a(6), under which the trial court acted, did not become effective until several months after her death. The court further erred in imposing a mandatory extended term for carjacking, which is not an offense included in N.J.S.A. 2C:43-6c. We also agreed with defendant that his sentences for attempted murder of the officer and his cousin should have been run concurrently instead of consecutively. Defendant was re-sentenced on remand to four consecutive terms of life imprisonment. Defendant must serve 105 years of his sentence before becoming eligible for parole.

Defendant filed his petition in 1999, shortly after the Supreme Court denied certification in the case, raising six points:

Although the Public Defender assigned counsel to represent defendant, that counsel failed to ultimately pursue the matter. Nine years later, in 2008, the same assigned counsel re-filed defendant's PCR petition, as well as a brief in support and a supplemental brief prepared by defendant. In the amended petition filed by assigned counsel, defendant raised the following points:

Counsel explained in an accompanying certification that he met with defendant when he was first designated as his counsel and pursued witnesses on defendant's behalf without success. He advised defendant that without affidavits from those witnesses, it was unlikely he could prevail. Counsel averred that after discussing the matter with defendant, he believed defendant concurred in his assessment and declined to pursue the petition.

Counsel further certified that some years later he was served with an ethics complaint filed by defendant claiming that counsel had failed to pursue his PCR petition. Counsel responded to the complaint explaining his understanding that defendant had agreed the petition would be fruitless without the cooperation of certain witnesses and determined not to pursue it. Counsel heard nothing further about the matter until the Public Defender contacted him in 2008, advising that defendant wished him to re-file defendant's petition and to represent him in the PCR proceeding.

When defendant appeared in court with his counsel on the petition in August 2008, he expressed dissatisfaction with the brief his counsel had submitted. Questioned by the court, defendant explained that he possessed additional proofs in support of his claims not included in the brief. The judge asked defendant if he was seeking to have his counsel relieved. Defendant explained that he was not asking to have counsel relieved but only the opportunity to submit additional documents. The judge granted the request for additional submissions and rescheduled the matter for December. On that date, the court acknowledged receipt of supplemental submissions from both sides and advised that the court would take the petition under advisement and issue an opinion "by the beginning of the year."

The judge, however, did not issue an opinion but only an order denying the petition without a hearing. The order was unaccompanied by a statement of reasons or any explanation for the decision. Defendant appealed and we reversed and remanded the matter to the trial court "to determine whether an evidentiary hearing is required, and to state separately its findings of fact and conclusions of law as required by Rules 1:7-4 and 3:22-11." State v. Hill, No. A-2448-09 (App. Div. May 1, 2012) (slip op. at 7).

At an on-the-record conference on June 8, 2012, which defendant attended, the judge advised the parties that the file could not be located and that steps needed to be taken to recreate it. The court, counsel and defendant agreed that the only issues to be addressed were those before the court in 2008, and any new issues defendant wished to raise would have to be addressed in a new petition. Counsel advised that defendant, having raised his PCR counsel's ineffectiveness, wished new counsel going forward. He explained that defendant had gathered supplemental proofs in support of the issues raised in 2008 and would be seeking to expand the record with those proofs. Defendant sought to clarify that it was his assigned PCR counsel who suggested defendant get new counsel and not defendant himself. The court allowed defendant to submit additional proofs in support of issues previously raised and to seek the appointment of new counsel.

When the court heard argument on the petition on October 19, 2012, he acknowledged receipt of defendant's supplemental submission of three certifications, one from each of his two sisters, and one from his girlfriend at the time of his arrest. Assigned counsel also explained that the Public Defender declined to appoint new counsel for defendant because the remand required the court to render an opinion based on the record existing in 2008. Defendant addressed the court explaining his reasons for seeking new counsel based on assigned counsel's ineffectiveness.

The court made clear that it was "deciding this case based on a decision I previously made in 2008." The court, however, noted that it had read the certifications submitted by defendant and found they did not establish a prima facie claim of ineffective assistance of trial counsel and thus did not alter his decision to deny the petition without an evidentiary hearing. As to defendant's desire for new counsel, the court noted that defendant expressly agreed to continue with assigned counsel in 2008 when the court put the question to him directly. The court went on to briefly explain its reasons for denying the petition, explaining those reasons were more fully addressed in a written opinion of the same date. The court determined the issues raised in defendant's petition were all ripe for review in prior proceedings and were thus barred by Rule 3:22-4. Considering the claims on the merits, notwithstanding the procedural bar, the court found defendant failed to put forth a prima facie claim for relief.

On appeal, defendant presents the following arguments:

Defendant presents the following arguments in his pro se supplemental brief:

We review the legal conclusions drawn by a trial court on PCR de novo. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005). Because there was no evidentiary hearing in this matter, we likewise exercise de novo review over the factual inferences the trial court drew from the record. Id. at 421.

To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial;" instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J.Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). Measured by that standard, defendant has not established that he received ineffective assistance of counsel on this record.

Although the case has had a tortured procedural history from the filing of the petition in 1999, we are satisfied that the trial court correctly determined to review the claims raised in the amended and supplemental petition filed by assigned counsel in 2008. We are likewise satisfied the court correctly determined that the evidence defendant presented was inadequate to establish a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant's claim that his counsel failed to investigate the circumstances surrounding his statement to the police and invocation of his right to counsel and to call witnesses to testify that defendant requested counsel and sought to exercise his right to remain silent before making a statement to the police is squarely refuted by the record. Trial counsel moved to preclude defendant's statement to the police. Counsel called one of defendant's sisters to testify at the Miranda hearing, and she and defendant testified at length. Judge Perretti did not find either one to be a credible witness. She concluded the police advised defendant of his rights, that he understood them and that he voluntarily waived them without threats, promises, psychological pressures or inducement.

Further, trial counsel stated on the record that he had met with defendant twenty times in the course of preparing for trial. Counsel succeeded in having two counts of the indictment dismissed, moved to suppress the gun seized from defendant at the time of his arrest and hired a ballistics expert on his behalf. Defendant has presented no proof of his claims that his counsel failed to adequately investigate the case or that additional witnesses would have changed the result of the Miranda hearing. Having reviewed the additional certifications defendant submitted to the court in 2012, we note they are not consistent with defendant's statements in his 2008 verified petition. In light of Judge Perretti's findings at the Miranda hearing based on the testimony of defendant and his sister, we cannot conclude that had counsel been able to secure the testimony of these additional witnesses that the result would have been different.

Regarding defendant's claim that his counsel failed to file a formal motion for change of venue, to preclude other crimes evidence and prejudicial photographs of the victim, we note that Judge Perretti stated on the record, in response to defendant's request, that she would not grant a motion to change venue. Further, trial counsel filed motions to sanitize defendant's prior record and to suppress evidence, including the.38 caliber handgun confiscated at the time of his arrest. We affirmed the judge's decision to admit the handgun on direct appeal. State v. Hill, No. A-6583-95 (App. Div. Mar. 23, 1999) (slip op. at 9-11).

Defendant nowhere identifies the pictures of the victim he claims prejudiced him or notes whether counsel objected to their admission. He also nowhere explains the effect of his counsel's alleged failure to provide the court with proposed instructions regarding conspirator liability, accomplice liability and vicarious liability. His counsel objected to the court's instructions at trial, and appellate counsel pressed the issue on appeal. We rejected the argument, finding the instructions "a clear, adequate, and accurate statement of the law." State v. Hill, No. A-6583-95 (App. Div. Mar. 23, 1999) (slip op. at 11-12). Based on the above, defendant's claims as to ineffective assistance of his trial counsel contained in points one and two of his petition are clearly without merit.

We agree with the PCR judge that defendant's claims in points three and four of the petition, that he was prejudiced by the trial court's decision to increase security during his trial, and that the judge erred in failing to instruct the jury on the lesser-included offense of theft with respect to the alleged carjacking of the Saab, are barred by Rule 3:22-4.2 All of the information necessary to raise these claims was clearly available to defendant on direct appeal, the claims are not of constitutional dimension and no fundamental injustice arises from the failure to consider them. State v. Mitchell, 126 N.J. 565, 583-89 (1992). Defendant has failed to put forth any evidence indicating any error in the jury's determination of his guilt or any sign of a miscarriage of justice.

Defendant's assertion that the two witnesses who implicated him in the crimes have recanted their statements finds no support in the record. His bald assertions that these witnesses would recant sworn testimony is insufficient to establish a prima facie claim for relief. See State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

As for defendant's claim that appellate counsel failed to consult with him and omitted issues he wished included in the appeal, it is well-established that appellate counsel need not advance every argument a defendant urges, even if non-frivolous. Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14, 77 L. Ed. 2d 987, 993-95 (1983). Appellate counsel raised five claims on appeal, three of which are variants of claims defendant has raised on PCR. The other two claims asserted errors in defendant's sentence resulting in a remand and consequent reduction in sentence. Because defendant offers no basis on which we could conclude that the failure to have raised additional or different issues on direct appeal would have altered its result, we reject his claim.3 Preciose, supra, 129 N.J. at 463-64.

Finally, we reject defendant's claim that the matter must be remanded because PCR counsel, who allegedly provided ineffective assistance, represented him on the remand. PCR claims of ineffective assistance grounded in alleged attorney conflicts are analyzed under our conflicts rules as applied in criminal cases. See generally State v. Bellucci, 81 N.J. 531 (1980). We held in State v. Drisco, 355 N.J.Super. 283, 294-95 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003), that unlike in cases of dual representation, prejudice is not presumed by defendant's allegation of conflict created by the defendant having previously charged trial counsel with ineffectiveness. Instead, "the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel." State v. Norman, 151 N.J. 5, 25 (1997).

Although we acknowledge the possibility of conflict when a defense attorney has been previously charged with ineffective assistance by the client, we are also aware that ineffective assistance claims are commonplace and not every such filing creates an adversarial relationship between client and lawyer compromising the lawyer's ability to defend the case effectively. Drisco, supra, 355 N.J. Super. at 294. Here, defendant has not demonstrated any conflict, much less one so significant as to present "a great likelihood of prejudice." Norman, supra, 151 N.J. at 25. Indeed, defendant took pains to explain to the PCR court in 2008 that he was not seeking to replace his counsel and that it was counsel who first broached the topic. Under these circumstances, we reject defendant's claim that a further remand is required in this already protracted matter.

Having thoroughly reviewed each of defendant's alleged points of error, we reject his contention that any error, either singly or in combination, could be deemed to have rendered his trial unfair. State v. Orecchio, 16 N.J. 125, 129 (1954). No further discussion of any particular claim, including those contained in defendant's pro se submissions, is warranted. R. 2:11-3(e)(2). Finally, we agree with the judge that no evidentiary hearing on defendant's PCR petition was required as defendant failed to establish a prima facie case of ineffective assistance of counsel under Strickland. Preciose, supra, 129 N.J. at 462.

Affirmed.