NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3107-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KARLA L. FREEMAN,
Defendant-Appellant. _______________________
Submitted May 6, 2024 – Decided August 30, 2024
Before Judges DeAlmeida and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-02-0122.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Jeffrey C. McElwee, Jr., Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Karla Freeman appeals from the Law Division's March 31,
2022 order denying her second petition for post-conviction relief (PCR) without
an evidentiary hearing. After a review of the arguments in light of the record
and applicable principles of law, we affirm.
I.
In November 2006, a jury convicted defendant of first-degree felony
murder, N.J.S.A. 2C:11-3(a)(3), and second-degree robbery, the lesser-included
offense of first-degree robbery, N.J.S.A. 2C:15-1, and acquitted her of first-
degree murder, N.J.S.A. 2C:11-3(a)(1), and first-degree robbery. The two
convictions were merged, and defendant was sentenced to a term of thirty years
with a parole ineligibility period of thirty years. The details of defendant's
offenses are recounted thoroughly in our unpublished opinion affirming
defendant's conviction on direct appeal which need not be repeated here. State
v. Freeman, No. A-1369-07 (App. Div. Sept. 10, 2010). Relevant to this appeal,
we concluded defendant's conviction of felony murder was not precluded by her
acquittal of purposeful or knowing murder or first-degree robbery, and the jury
was given the proper jury instruction requiring a finding on causation before it
found felony murder. The Supreme Court denied her petition for certification.
State v. Freeman, 205 N.J. 100 (2011).
A-3107-21 2 On March 2, 2011, defendant filed a PCR petition alleging ineffective
assistance of trial counsel for failing to advise defendant to accept the State's
pre-trial plea offer of fifteen years, and failure to locate, interview, and call a
witness at trial who could have testified that defendant "consumed numerous
alcoholic drinks" on the day of the murder and was intoxicated. Following the
appointment of PCR counsel, a supplemental petition was filed raising
additional claims that trial counsel was ineffective for failing to argue for
dismissal of the indictment on double jeopardy grounds after the mistrial and for
failing to discuss defendant's right to testify with her. Defendant also claimed
appellate counsel failed to argue that the trial judge committed reversible error
by denying trial counsel's request for a jury charge on conspiracy.
We affirmed the PCR court's denial of defendant's petition but remanded
the matter to correct the judgment of conviction (JOC) to reflect the second-
degree robbery conviction and not first-degree robbery. State v. Freeman, No.
A-3386-14 (App. Div. Sept. 7, 2017). The JOC was corrected on October 2,
2017. Defendant's petition for certification was denied, State v. Freeman, 232
N.J. 303 (2018), followed by the denial of defendant's petition for writ of habeas
corpus. Freeman v. Davis, 2021 WL 4705009 (D.N.J. Oct. 7, 2021).
A-3107-21 3 Defendant, then self-represented, filed a second PCR petition on October
20, 2020, claiming a vacation of her conviction was warranted because her right
to effective assistance of counsel was denied at trial, on appeal, on her first PCR
petition, and with her habeas corpus petition. She further argued her Fifth
Amendment right against self-incrimination had been violated because her
statements to the police were not suppressed at trial and that the conflicting
theories of culpability presented at trial violated her due process rights. In a
supplemental brief, PCR counsel raised the additional claim that trial counsel
failed to request a charge on the affirmative defense for felony murder, that
appellate counsel failed to appeal the denial of defendant's motion to suppress
her statements, and that the time restriction should be relaxed for this second
PCR.
Following oral argument, the PCR court issued a written opinion and a
memorializing order on March 31, 2022, denying defendant's PCR petition. At
the outset, the PCR court ruled defendant's second PCR was untimely pursuant
to Rule 3:22-12(a)(2) because it was filed more than two years after her petition
for certification on February 28, 2018, following the denial of her first PCR
petition on January 5, 2015.
A-3107-21 4 The PCR court next determined defendant's second PCR was procedurally
barred under Rule 3:22-5. The court explained defendant previously challenged
the trial court's jury charge regarding felony murder on direct appeal.
Defendant's claim that her first PCR counsel was ineffective because the first
PCR petition was untimely is not supported by the first PCR court's ruling that
the petition was not time-barred. Lastly, the PCR court further explained that
defendant could have previously raised all other claims asserted in the second
PCR, and therefore, the claims are barred under Rule 3:22-3 and -4.
The PCR court, nonetheless, addressed the merits of defendant's "new
claims" of ineffective assistance of counsel. The court concluded defendant
failed to meet the requisite criteria under Strickland v. Washington, 466 U.S.
668, 686 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987).
II.
On appeal, defendant presents the following argument for our
consideration:
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HER CLAIMS THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO REQUEST A CHARGE ON THE AFFIRMATIVE DEFENSE TO FELONY MURDER AND FAILING TO RAISE A SUPPRESSION ISSUE ON DIRECT APPEAL.
A-3107-21 5 We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard also applies to
mixed questions of law and fact. Id. at 420. Where an evidentiary hearing has
not been held, we "conduct a de novo review of both the factual findings and
legal conclusions of the PCR court . . . ." Id. at 421 (emphasis in original). We
apply that standard here. Id.
To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the two-prong Strickland/Fritz test by a preponderance
of the evidence: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"
and (2) "the deficient performance prejudiced the defense." Strickland, 466 U.S.
at 687; Fritz, 105 N.J. at 52. A failure to satisfy either prong of the Strickland
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3107-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KARLA L. FREEMAN,
Defendant-Appellant. _______________________
Submitted May 6, 2024 – Decided August 30, 2024
Before Judges DeAlmeida and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-02-0122.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Jeffrey C. McElwee, Jr., Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM Defendant Karla Freeman appeals from the Law Division's March 31,
2022 order denying her second petition for post-conviction relief (PCR) without
an evidentiary hearing. After a review of the arguments in light of the record
and applicable principles of law, we affirm.
I.
In November 2006, a jury convicted defendant of first-degree felony
murder, N.J.S.A. 2C:11-3(a)(3), and second-degree robbery, the lesser-included
offense of first-degree robbery, N.J.S.A. 2C:15-1, and acquitted her of first-
degree murder, N.J.S.A. 2C:11-3(a)(1), and first-degree robbery. The two
convictions were merged, and defendant was sentenced to a term of thirty years
with a parole ineligibility period of thirty years. The details of defendant's
offenses are recounted thoroughly in our unpublished opinion affirming
defendant's conviction on direct appeal which need not be repeated here. State
v. Freeman, No. A-1369-07 (App. Div. Sept. 10, 2010). Relevant to this appeal,
we concluded defendant's conviction of felony murder was not precluded by her
acquittal of purposeful or knowing murder or first-degree robbery, and the jury
was given the proper jury instruction requiring a finding on causation before it
found felony murder. The Supreme Court denied her petition for certification.
State v. Freeman, 205 N.J. 100 (2011).
A-3107-21 2 On March 2, 2011, defendant filed a PCR petition alleging ineffective
assistance of trial counsel for failing to advise defendant to accept the State's
pre-trial plea offer of fifteen years, and failure to locate, interview, and call a
witness at trial who could have testified that defendant "consumed numerous
alcoholic drinks" on the day of the murder and was intoxicated. Following the
appointment of PCR counsel, a supplemental petition was filed raising
additional claims that trial counsel was ineffective for failing to argue for
dismissal of the indictment on double jeopardy grounds after the mistrial and for
failing to discuss defendant's right to testify with her. Defendant also claimed
appellate counsel failed to argue that the trial judge committed reversible error
by denying trial counsel's request for a jury charge on conspiracy.
We affirmed the PCR court's denial of defendant's petition but remanded
the matter to correct the judgment of conviction (JOC) to reflect the second-
degree robbery conviction and not first-degree robbery. State v. Freeman, No.
A-3386-14 (App. Div. Sept. 7, 2017). The JOC was corrected on October 2,
2017. Defendant's petition for certification was denied, State v. Freeman, 232
N.J. 303 (2018), followed by the denial of defendant's petition for writ of habeas
corpus. Freeman v. Davis, 2021 WL 4705009 (D.N.J. Oct. 7, 2021).
A-3107-21 3 Defendant, then self-represented, filed a second PCR petition on October
20, 2020, claiming a vacation of her conviction was warranted because her right
to effective assistance of counsel was denied at trial, on appeal, on her first PCR
petition, and with her habeas corpus petition. She further argued her Fifth
Amendment right against self-incrimination had been violated because her
statements to the police were not suppressed at trial and that the conflicting
theories of culpability presented at trial violated her due process rights. In a
supplemental brief, PCR counsel raised the additional claim that trial counsel
failed to request a charge on the affirmative defense for felony murder, that
appellate counsel failed to appeal the denial of defendant's motion to suppress
her statements, and that the time restriction should be relaxed for this second
PCR.
Following oral argument, the PCR court issued a written opinion and a
memorializing order on March 31, 2022, denying defendant's PCR petition. At
the outset, the PCR court ruled defendant's second PCR was untimely pursuant
to Rule 3:22-12(a)(2) because it was filed more than two years after her petition
for certification on February 28, 2018, following the denial of her first PCR
petition on January 5, 2015.
A-3107-21 4 The PCR court next determined defendant's second PCR was procedurally
barred under Rule 3:22-5. The court explained defendant previously challenged
the trial court's jury charge regarding felony murder on direct appeal.
Defendant's claim that her first PCR counsel was ineffective because the first
PCR petition was untimely is not supported by the first PCR court's ruling that
the petition was not time-barred. Lastly, the PCR court further explained that
defendant could have previously raised all other claims asserted in the second
PCR, and therefore, the claims are barred under Rule 3:22-3 and -4.
The PCR court, nonetheless, addressed the merits of defendant's "new
claims" of ineffective assistance of counsel. The court concluded defendant
failed to meet the requisite criteria under Strickland v. Washington, 466 U.S.
668, 686 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987).
II.
On appeal, defendant presents the following argument for our
consideration:
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HER CLAIMS THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO REQUEST A CHARGE ON THE AFFIRMATIVE DEFENSE TO FELONY MURDER AND FAILING TO RAISE A SUPPRESSION ISSUE ON DIRECT APPEAL.
A-3107-21 5 We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard also applies to
mixed questions of law and fact. Id. at 420. Where an evidentiary hearing has
not been held, we "conduct a de novo review of both the factual findings and
legal conclusions of the PCR court . . . ." Id. at 421 (emphasis in original). We
apply that standard here. Id.
To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the two-prong Strickland/Fritz test by a preponderance
of the evidence: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"
and (2) "the deficient performance prejudiced the defense." Strickland, 466 U.S.
at 687; Fritz, 105 N.J. at 52. A failure to satisfy either prong of the Strickland
standard requires the denial of a PCR petition. State v. Nash, 212 N.J. 518, 542
(2013).
"[I]n order to establish a prima facie claim, a petitioner must do more than
make bald assertions that [she] was denied effective assistance of counsel."
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "[R]ather, the
defendant must allege facts sufficient to demonstrate counsel's alleged
A-3107-21 6 substandard performance." State v. Jones, 219 N.J. 298, 312 (2014) (internal
quotation marks omitted) (quoting State v. Porter, 216 N.J. 343, 355 (2013)).
Where a "court perceives that holding an evidentiary hearing will not aid the
court's analysis of whether the defendant is entitled to [PCR] or that the
defendant's allegations are too vague, conclusory, or speculative to warrant an
evidentiary hearing, then an evidentiary hearing need not be granted." State v.
Marshall, 148 N.J. 89, 158 (1997) (internal citations omitted); see R. 3:22-
10(e)(1)-(2).
"[A] prior adjudication on the merits ordinarily constitutes a procedural
bar to the reassertion of the same ground as a basis for post-conviction review."
State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-5). Additionally, a
defendant is precluded from raising an issue on PCR that could have been raised
on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997).
The application of these standards requires the "'[p]reclusion of
consideration of an argument presented in post-conviction relief proceedings
. . . if the issue raised is identical or substantially equivalent to that adjudicated
previously on direct appeal.'" State v. Marshall, 173 N.J. 343, 351 (2002)
(quoting Marshall, 148 N.J. at 150). The same principle applies to issues
decided on the merits in a prior PCR proceeding. A PCR claim is based upon
A-3107-21 7 the "same ground" as a claim already raised by direct appeal when "'the issue is
identical or substantially equivalent'" to the issue previously adjudicated on the
merits. McQuaid, 147 N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-
77 (1971)).
Under Rule 3:22-4(b), a defendant is barred from raising any issue in a
second PCR petition that could have been raised on direct appeal or in the first
PCR petition unless one of three exceptions apply. The petition must "allege[]
on its face" one of the three criteria: (1) "the petition relies on a new rule of
constitutional law . . . that was unavailable during the pendency of any prior
proceedings[,]" (2) "the factual predicate for the relief sought could not have
been discovered earlier through the exercise of reasonable diligence," or (3) "the
petition alleges a prima facie case of ineffective assistance of counsel" of prior
PCR counsel. R. 3:22-4(b)(2)(A)-(C).
Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any
ground for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding . . . or in any appeal taken from
such proceedings." A PCR petition is not "an opportunity to relitigate a claim
already decided on the merits." McQuaid, 147 N.J. at 483.
A-3107-21 8 We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of counsel. Applying these
principles, the PCR court analyzed and rejected defendant's second PCR petition
claims as untimely and procedurally barred because the claims were adjudicated
in her first PCR petition. Therefore, we need not consider defendant's argument
a second time as we have already substantively decided the same issue in
connection with the first PCR petition.
We are satisfied the second PCR court appropriately concluded an
evidentiary hearing was not warranted because defendant presented only bald
assertions. Defendant has not shown that trial counsel was ineffective. We
discern no such abuse of discretion by the second PCR court.
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
A-3107-21 9