NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant Ricky Williams appeals from the trial court's July 29, 2013, order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.

I.

We discussed the underlying facts of the case at length in our opinion affirming defendant's conviction and sentence on direct appeal. State v. Williams, No. A-3960-09 (App. Div. June 7, 2011), certif. denied, 208 N.J. 599 (2011). Suffice it to say here that police witnesses at the trial in January and February 2009 testified they observed defendant engage in a drug transaction with his co-defendant, Ismael Binbow, on June 14, 2007, on Milford Avenue in Newark. As police approached, defendant received a block of heroin from Binbow, who was seated in the driver's seat of a parked automobile. Defendant was standing at the driver's side door. Upon spotting the police, defendant returned the package to Binbow and began to walk away. Police detained defendant, while Binbow fled in his vehicle, leading police on a high speed chase, and, after a collision, a foot pursuit, during which Binbow discarded the drugs. Searches of defendant and Binbow subsequent to arrest revealed that defendant possessed $618 in cash, and Binbow possessed $928. An expert testified that the cash was consistent with drug dealing.

Neither defendant nor Binbow testified. However, defendant's wife, daughter, and two neighbors testified. The daughter and one neighbor asserted that before defendant's arrest, they saw defendant leave the porch of their home, counting money as he walked in the street. After the arrest, defendant's wife, daughter and a neighbor claimed police searched his car and home.

The jury found defendant guilty of third-degree possession of CDS heroin, N.J.S.A. 2C:35-10(a)(1); second-degree possession of CDS heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(2); doing so in a school zone, a third-degree offense, N.J.S.A. 2C:35-7; and doing so within 500 feet of a park, a second-degree offense, N.J.S.A. 2C:35-7.1. After merger, and granting the State's motion for an extended term, the court sentenced defendant on August 3, 2009, to an aggregate term of sixteen years, with an eight-year period of parole ineligibility.

In affirming the conviction, we considered eight points challenging the conviction, as well as the argument that defendant received an excessive sentence. Without extensively summarizing our prior opinion, we note defendant challenged the court's denial of his motions for a mistrial and acquittal; he contended the court erred in various evidentiary rulings; he objected to aspects of the drug expert's testimony, and other testimonial evidence; and he challenged the State's failure to disclose an alleged investigation into two police witnesses' use of excessive force in another case. We found none of his arguments persuasive.

II.

In his December 2011 pro se petition, defendant alleged, without amplification, that he was entitled to relief based on: "Ineffective Assistance of Counsel, Prosecutorial Misconduct, Newly discovered Evidence, False Testimony, P[er]jury, [and] Challenge on weight from Lab Report."

In a certification prepared in June 2012, he alleged his trial counsel was ineffective because he failed to adequately pursue various investigative avenues and to call certain witnesses. Defendant maintained that he asked counsel to obtain evidence to demonstrate that police did search his home and car, which he asserted would have undermined the police witnesses' credibility. Defendant added in oral argument on the PCR petition that police allegedly seized $400 from his home, not from his person. Evidence of that seizure, he argued, would have undermined the State's contention that the amount of cash on his person was consistent with drug dealing. Defendant also asserted that he asked counsel to obtain video surveillance footage of the intersection where the accident, apparently involving Binbow, took place. He asserted that this would demonstrate that police left the accident long before they arrived at the police station; defendant contended that during the interim, police conducted the alleged search.

Defendant asserted that he asked his attorney to talk to neighbors who would have confirmed that the search took place. He stated that he asked counsel to "file a motion to suppress," but he did not state in his certification what evidence he sought to suppress. He claimed he asked counsel to file a motion for a severance, because trial with Binbow prejudiced him. He also asked counsel to call an Officer Mahoney as a witness; defendant clarified at oral argument that he believed Mahoney would confirm police searched his home. He contended that trial counsel failed to appear in court numerous times when the case was before a judge other than the one who presided over the trial. He also noted that his pre-indictment plea offer was for no jail time, but it was contingent on Binbow's plea. Defendant later asserted that police considered Binbow the principal target.

Although we do not have a complete copy of counsel's supplemental letter brief, excerpts indicate that the following points were raised on defendant's behalf:

Counsel also incorporated "all points raised by petitioner in any and all prior submissions," but the record before us contains only the certification described above, and the initial pro se petition. We gather that at some point, defendant contended that his attorney was ineffective by failing to move for a speedy trial, because the PCR court addressed the issue; but it is not presented in any of the pre-hearing documents in the record before us.

In the PCR hearing, Judge Thomas M. Moore permitted defendant to supplement the oral argument of counsel. In extensive remarks, and colloquy with the court, defendant focused on his trial counsel's failure to interview and call Officer Mahoney, whom he identified as a retired sheriff's officer. As noted, defendant contended that if Mahoney had been interviewed, he may have corroborated his claim that his house was searched.

In an extensive oral opinion denying relief, Judge Moore applied the well-settled two-pronged test for assessing claims of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

Judge Moore found that defendant had failed to present a prima facie case of ineffective assistance of counsel, or issues of fact warranting an evidentiary hearing. With respect to the speedy trial issue, Judge Moore concluded defendant had failed to establish that defendant would have succeeded on a speedy trial motion under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed. 2d 101 (1972). In particular, he noted that defendant had not established that the delay was unjustified, or that defendant suffered prejudice. The court rejected defendant's claim that his trial counsel failed to conduct an adequate investigation — by obtaining surveillance tapes — because there was no proof the tapes existed or what they would show.1

On appeal, defendant presents the following points for our consideration:

III.

We review a PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005). When the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.

We also apply the same two-pronged Strickland standard that the trial court applied. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S.Ct. 2066, 80 L. Ed. 2d at 695. A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J.Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing. . . ." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed. 2d 88 (1997).

Where a defendant asserts his attorney was ineffective by failing to file a motion, he must establish that the motion would have had merit. State v. O'Neal, 190 N.J. 601, 619 (2007). "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion. . . ." Ibid. For example, where a petitioner complains his counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). "[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." Cummings, supra, 321 N.J. Super. at 170.

Applying these principles, we discern no error in the court's decision. Defendant has failed to demonstrate that a speedy trial motion would have been meritorious. Defendant was arrested in June 2007, indicted in September 2007, and tried sixteen months later. He was free on bail from June 25, 2007 until the day he was convicted. Defendant has fallen far short of presenting facts that would support the argument that a speedy trial motion would have succeeded under the four-part test established in Barker, supra, 407 U.S. at 530-33, 92 S. Ct. at 2192-2193, 33 L. Ed. 2d at 115-19 (stating that a court must consider the length of the delay; the reasons for the delay; whether and how defendant asserted his speedy trial right; and the prejudice caused).

Defendant's argument that counsel was ineffective by failing to pursue Mahoney as a witness fails because defendant has provided no competent evidence of what Mahoney would have stated. Absent such proof, defendant has not demonstrated a prima facie case of prejudice under the second prong on the Strickland test.

Finally, defendant argues that the trial court erred in not expressly addressing the six points incorporated in PCR counsel's supplemental brief, which were based on defendant's certification. We quoted the six points above. Defendant argues that we must remand.

No remand is necessary. Defendant has failed to describe what evidence trial counsel should have sought to suppress; the basis for the motion; let alone demonstrate its likelihood of success. Defendant has not presented any basis to believe that a motion to sever would have succeeded. In determining whether to grant or deny a severance motion, trial courts should "balance the potential prejudice to defendant's due process rights against the State's interest in judicial efficiency." State v. Brown, 118 N.J. 595, 605 (1980) (quoting State v. Coleman, 46 N.J. 16, 24 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L. Ed. 2d 212 (1966)). "The danger by association that inheres in all joint trials is not in itself sufficient to justify a severance. . . ." Ibid. If the facts necessary to prove one offense are also the same facts that would be admissible to prove another offense, then a joint trial is preferable. Ibid. "Central to the inquiry is `whether, assuming the charges were tried separately, evidence of the offense sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).

It is also unclear how counsel's alleged failure to appear on multiple occasions before trial caused defendant prejudice. Both this court and the PCR court have already addressed the issue of Mahoney as a witness. Defendant's remaining points regarding allegedly false testimony of police witnesses, and the pre-indictment plea offer, are not directly tied to defendant's claim of ineffective assistance of counsel.

Affirmed.