NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant, Donnell Gideon, appeals from an August 14, 2013 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We find defendant presented a prima facie case for relief in his petition. Therefore, we reverse and remand for an evidentiary hearing.
We discern the following facts from the record on appeal. On September 1, 2004, defendant gave a statement to an investigator at the Camden County Police Department regarding a July 27, 2004 shooting. In his statement, defendant explained his "workers" sold marijuana, supplied by E.J., in Camden's Yorkship Square area. Defendant learned T.A. had been robbing his "workers" at gunpoint. As a result of these robberies, defendant sought out T.A. on July 27, 2004, and engaged him in a fist fight. After the fight was broken up, defendant returned home.
Immediately after returning home, defendant called E.J. to explain what transpired. Soon after, E.J. arrived at defendant's home and told him to "suit up" and "get your black on," meaning change into black clothing. Defendant "suited up" knowing they were going to "handle the situation from earlier." Defendant then got into a car with E.J. and another individual and drove looking for T.A. The three individuals thought they saw T.A. standing on a corner near the Yorkship Square area. They parked the car and exited, E.J armed with an AK-47 rifle and the other individual armed with a Mossberg shotgun. The three individuals then walked down an alleyway where defendant asked E.J. "what's up?" E.J. responded, "just look up." At that moment, E.J. and the other individual opened fire on a group of people standing on the corner. Defendant later learned three people were injured and one person was killed in the shooting.
At trial, defendant asserted the investigator coached him on what to say during his statement. Defendant then proceeded to testify to a different version of what he was doing the night of the shooting. Defendant admitted to fighting T.A. earlier in the day, but while defendant was walking home from the fight, he ran into his mother. Defendant's mother drove defendant to find T.A. in order for the two to shake hands and "peace up." Then, defendant got back into the car with his mother who dropped him off at home before she went to work. After being dropped off, defendant contended he never left his home the rest of the night. On cross-examination, defendant stated his girlfriend was with him in the home the night of the shooting.
A jury convicted defendant of: aggravated manslaughter, attempted murder, aggravated assault, conspiracy to commit murder, possession of a weapon for an unlawful purpose, and hindering apprehension or prosecution. Defendant was sentenced to a twenty-seven-year prison term subject to the eighty-five percent parole ineligibility provision under N.J.S.A. 2C:43-7.2(a).
Defendant filed a direct appeal where he argued his right to confrontation was violated and his sentence was excessive. Additionally, he argued his conviction should have been reversed because his Fifth Amendment rights were violated, the verdict was against the weight of the evidence, and a jury instruction was flawed. We affirmed defendant's conviction and sentence.1 Defendant then petitioned the New Jersey Supreme Court for certification, which the Court denied on March 15, 2011.2
Defendant filed a PCR petition on April 27, 2012. Defendant argued his trial counsel was ineffective because he failed to call defendant's mother and girlfriend as alibi witnesses and failed to raise mitigating factor twelve at sentencing. Defendant also claimed evidence introduced under N.J.R.E. 404(b) at trial prejudiced him, and he was denied his right to choice of counsel.
The PCR judge denied defendant's PCR petition without a hearing. Defendant appealed. On appeal, defendant asserts his trial counsel was ineffective because he failed to investigate defendant's mother and his girlfriend as alibis and failed to call them at trial. In defendant's original PCR brief, he supplied certifications from both alibi witnesses stating they were home with defendant during the shooting.3 Defendant contends if the alibi witnesses were produced, there was a reasonable probability of acquittal.
Defendant also argues the PCR judge should have conducted a hearing in order to resolve a choice of counsel issue regarding whether defendant consented to a substitution of his trial counsel. In addition, defendant contends evidence regarding his drug trafficking and related altercation with T.A. during the hours before the shooting were prejudicial and improperly adduced at trial.
In New Jersey, PCR is analogous to the federal writ of habeas corpus. State v. Jones, 219 N.J. 298, 310 (2014). When petitioning for PCR, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). The court must view the facts alleged in a light most favorable to the petitioner. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We defer to the trial court's factual findings and uphold them if they are supported by sufficient credible evidence. Nash, supra, 212 N.J. at 540. However, legal conclusions are reviewed de novo. Id. at 540-41.
Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The right of counsel includes the right of effective counsel. State v. Cottle, 194 N.J. 449, 466 (2008). To establish a prima facie claim of ineffective assistance of counsel, the defendant must satisfy the two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) as adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing that trial counsel's performance was deficient and, but for the deficient performance, the result would have been different. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The standard "for attorney performance is that of reasonably effective assistance," and to show ineffective assistance of counsel, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There is a strong presumption counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing, and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. Rather, trial courts should grant evidentiary hearings only if the defendant has presented a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim, the defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. In alleging facts to demonstrate trial counsel inadequately investigated a case, the defendant must assert "the facts that an investigation would have revealed, supported by affidavits or certifications." Ibid. The PCR court should view the facts in a light most favorable to the defendant when evaluating whether the defendant has presented a prima facie claim. Ibid.
In Cummings, we addressed whether failure to present an alibi defense was sufficient support to show a prima facie claim of ineffective assistance of counsel. Id. at 170-71. The defendant in Cummings contended in a supplemental certification to his PCR certification, if he had testified at trial, he would have stated he was not present during the crime's commission because he was at an acquaintance's apartment. Id. at 162, 170. The court concluded the defendant's assertion alone was insufficient to support a prima facie claim of ineffectiveness. Id. at 170-71. The court noted the defendant failed to supply an affidavit or certification by the alibi supporting his claim. Id. at 171. See also Jones, supra, 219 N.J. at 314 (stating "the PCR court should have heard from the witnesses, including trial counsel, whose reason for not ensuring the testimony of an apparent alibi and corroborative witness is unexplained on the record as it presently stands.").
In this appeal, defendant argues his trial counsel was ineffective because he failed to investigate defendant's mother and girlfriend as alibi witnesses, and his trial counsel's subsequent failure to produce the alibis at trial resulted in defendant's conviction. The PCR judge concluded that this argument did not satisfy the first prong under Strickland. He found it was trial counsel's strategy not to call the two alibi witnesses. The PCR judge reasoned the certifications were unreliable and incredible because of the contradictions between defendant's own testimony and the certification of the mother.
Viewing the facts in a light most favorable to defendant, we find defendant asserted sufficient facts to present a prima facie claim of ineffective assistance of counsel. The girlfriend's certification stated she was home with defendant during the time of the shooting. Defendant's trial testimony supported this claim. This fact, coupled with defendant's assertion his trial counsel never investigated his alibi witnesses presents a prima facie case of ineffective assistance of counsel. As a result, defendant was entitled to an evidentiary hearing on this matter.
One purpose served by an evidentiary hearing is it enables the judge to hear testimony about possible trial strategy from counsel and then make credibility findings. Here, the PCR judge made a credibility decision about the reasons the witnesses were not called without the benefit of hearing testimony on the defendant's assertions. Consequently, the judge's decision was based only on speculation.
Defendant's argument about the introduction of prejudicial evidence lacks merit, as the evidence was admissible to demonstrate his motive under Rule 404(b). Defendant's claim regarding choice of counsel lacks sufficient merit to be addressed in a written opinion. R. 2:11-3(e)(2). We do not address defendant's claim regarding mitigating factor twelve because it was not properly briefed on appeal. Drinker Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, Div. of Law, 421 N.J.Super. 489, 496 n.5 (App. Div. 2011) (explaining failure to address an issue in a merits brief is considered abandoned); see also Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2016) (stating "an issue not briefed is deemed waived.").
We reverse and remand for an evidentiary hearing. We do not retain jurisdiction.
Reversed and remanded.
