NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1305-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK W. LYCZAK,
Defendant-Appellant. _______________________
Submitted June 3, 2025 – Decided June 23, 2025
Before Judges Gooden Brown and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 18-05-1111.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Mark Lyczak appeals from the July 19, 2023 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
In 2018, a Camden County Grand Jury returned an indictment charging
defendant with two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2)
(counts one and two); one count of first-degree attempted murder, N.J.S.A.
2C:5-1 and 2C:11-3(a)(1) (count three); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count four); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d) (count six); and fourth-degree
criminal contempt of a domestic violence restraining order, N.J.S.A. 2C:29-
9(b)(1) (count seven).
The charges stemmed from events that took place on December 30, 2017,
when defendant stabbed three women, two of whom died from the stab wounds.
One decedent was defendant's former girlfriend, and the other was her sister.
Defendant entered into a negotiated plea agreement whereby he pled guilty to
counts one, two, and four, in exchange for the State's dismissal of the remaining
counts and recommendation of an aggregate sentence of forty-seven years in
prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant
A-1305-23 2 received the recommended sentence in 2019, which encompassed three
concurrent terms. Defendant appealed his sentence, and we affirmed on our
Sentencing Oral Argument calendar pursuant to Rule 2:9-11.
Thereafter, defendant filed a timely PCR petition in which he asserted he
was denied the effective assistance of counsel because plea counsel failed to
provide him with complete discovery, including minutes of the grand jury
proceedings, the indictment, the list of potential witnesses and their statements,
and autopsy reports. Defendant asserted that as a result, his plea "was entered
unknowingly and unintelligently." With the assistance of assigned counsel,
defendant later argued that the withheld discovery would have supported a
passion provocation defense.
Following oral argument, the PCR judge denied defendant's petition
without an evidentiary hearing. In an oral opinion, the judge stated that even if
defendant established his attorney's performance was deficient to meet the first
Strickland/Fritz1 prong, "consider[ing] [defendant's allegation] in a light most
favorable to him," he failed to establish prejudice to meet the second prong.
Specifically, the judge determined that defendant failed to demonstrate "a
1 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987). A-1305-23 3 reasonable probability that but for counsel's unprofessional errors the result [] of
the proceeding would have been different" as defendant failed "to show . . . that
the outcome of the plea process would have been different with competent
advice." The judge explained that defendant knew "he was getting a [favorable]
plea agreement" and that "if [he] had gone to trial and been convicted," his
sentence would probably "have been consecutive sentence[s]" and would have
been "longer." The judge therefore concluded that an evidentiary hearing was
unwarranted.
On appeal, defendant raises the following single point for our
consideration:
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL PRETRIAL BY FAILING TO PROVIDE DISCOVERY BECAUSE, AS A RESULT, [DEFENDANT] MADE AN UNKNOWING PLEA, HIS PLEA DEAL WAS HIGHER THAN IT SHOULD HAVE BEEN, AND HE DID NOT OTHERWISE GO TO TRIAL.
We begin by setting out the guideposts that inform our review. We
"review the legal conclusions of a PCR judge de novo," State v. Reevey, 417
N.J. Super. 134, 146 (App. Div. 2010), but "review under the abuse of discretion
standard the PCR court's determination to proceed without an evidentiary
A-1305-23 4 hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013).
"[W]here . . . no evidentiary hearing was conducted," as here, "we may review
the factual inferences the [trial] court has drawn from the documentary record
de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing
State v. Harris, 181 N.J. 391, 421 (2004)).
An evidentiary hearing is only required when (1) a defendant establishes
"a prima facie case in support of [PCR]," (2) the court determines that there are
"material issues of disputed fact that cannot be resolved by reference to the
existing record," and (3) the court determines that "an evidentiary hearing is
necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354
(2013) (alteration in original) (quoting R. 3:22-10(b)); see also R. 3:22-10(e)(2)
(providing that "[a] court shall not grant an evidentiary hearing . . . if the
defendant's allegations are too vague, conclusory or speculative"). Indeed, "[i]f
the court perceives that holding an evidentiary hearing will not aid the court's
analysis of whether the defendant is entitled to [PCR], . . . then an evidentiary
hearing need not be granted." Brewster, 429 N.J. Super. at 401 (omission in
original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997)).
"To establish a prima facie case, [a] defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the facts alleged in the light
A-1305-23 5 most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-
10(b). Moreover, a defendant must make this showing "by a preponderance of
the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002).
Rule 3:22‑2 recognizes five cognizable grounds for PCR, including a
"[s]ubstantial denial in the conviction proceedings of [a] defendant's
[constitutional] rights," R. 3:22-2(a), which encompasses the right to the
effective assistance of counsel at issue in this appeal, State v. Nash, 212 N.J.
518, 541-42 (2013). To establish a prima facie claim of the denial of the
effective assistance of counsel as contemplated under Rule 3:22-2(a), a
defendant must demonstrate that the performance of counsel fell below the
objective standard of reasonableness set forth in Strickland v. Washington, 466
U.S. 668, 687-88 (1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58
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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-1305-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK W. LYCZAK,
Defendant-Appellant. _______________________
Submitted June 3, 2025 – Decided June 23, 2025
Before Judges Gooden Brown and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 18-05-1111.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Mark Lyczak appeals from the July 19, 2023 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
In 2018, a Camden County Grand Jury returned an indictment charging
defendant with two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2)
(counts one and two); one count of first-degree attempted murder, N.J.S.A.
2C:5-1 and 2C:11-3(a)(1) (count three); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count four); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d) (count six); and fourth-degree
criminal contempt of a domestic violence restraining order, N.J.S.A. 2C:29-
9(b)(1) (count seven).
The charges stemmed from events that took place on December 30, 2017,
when defendant stabbed three women, two of whom died from the stab wounds.
One decedent was defendant's former girlfriend, and the other was her sister.
Defendant entered into a negotiated plea agreement whereby he pled guilty to
counts one, two, and four, in exchange for the State's dismissal of the remaining
counts and recommendation of an aggregate sentence of forty-seven years in
prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant
A-1305-23 2 received the recommended sentence in 2019, which encompassed three
concurrent terms. Defendant appealed his sentence, and we affirmed on our
Sentencing Oral Argument calendar pursuant to Rule 2:9-11.
Thereafter, defendant filed a timely PCR petition in which he asserted he
was denied the effective assistance of counsel because plea counsel failed to
provide him with complete discovery, including minutes of the grand jury
proceedings, the indictment, the list of potential witnesses and their statements,
and autopsy reports. Defendant asserted that as a result, his plea "was entered
unknowingly and unintelligently." With the assistance of assigned counsel,
defendant later argued that the withheld discovery would have supported a
passion provocation defense.
Following oral argument, the PCR judge denied defendant's petition
without an evidentiary hearing. In an oral opinion, the judge stated that even if
defendant established his attorney's performance was deficient to meet the first
Strickland/Fritz1 prong, "consider[ing] [defendant's allegation] in a light most
favorable to him," he failed to establish prejudice to meet the second prong.
Specifically, the judge determined that defendant failed to demonstrate "a
1 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987). A-1305-23 3 reasonable probability that but for counsel's unprofessional errors the result [] of
the proceeding would have been different" as defendant failed "to show . . . that
the outcome of the plea process would have been different with competent
advice." The judge explained that defendant knew "he was getting a [favorable]
plea agreement" and that "if [he] had gone to trial and been convicted," his
sentence would probably "have been consecutive sentence[s]" and would have
been "longer." The judge therefore concluded that an evidentiary hearing was
unwarranted.
On appeal, defendant raises the following single point for our
consideration:
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL PRETRIAL BY FAILING TO PROVIDE DISCOVERY BECAUSE, AS A RESULT, [DEFENDANT] MADE AN UNKNOWING PLEA, HIS PLEA DEAL WAS HIGHER THAN IT SHOULD HAVE BEEN, AND HE DID NOT OTHERWISE GO TO TRIAL.
We begin by setting out the guideposts that inform our review. We
"review the legal conclusions of a PCR judge de novo," State v. Reevey, 417
N.J. Super. 134, 146 (App. Div. 2010), but "review under the abuse of discretion
standard the PCR court's determination to proceed without an evidentiary
A-1305-23 4 hearing," State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013).
"[W]here . . . no evidentiary hearing was conducted," as here, "we may review
the factual inferences the [trial] court has drawn from the documentary record
de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (citing
State v. Harris, 181 N.J. 391, 421 (2004)).
An evidentiary hearing is only required when (1) a defendant establishes
"a prima facie case in support of [PCR]," (2) the court determines that there are
"material issues of disputed fact that cannot be resolved by reference to the
existing record," and (3) the court determines that "an evidentiary hearing is
necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354
(2013) (alteration in original) (quoting R. 3:22-10(b)); see also R. 3:22-10(e)(2)
(providing that "[a] court shall not grant an evidentiary hearing . . . if the
defendant's allegations are too vague, conclusory or speculative"). Indeed, "[i]f
the court perceives that holding an evidentiary hearing will not aid the court's
analysis of whether the defendant is entitled to [PCR], . . . then an evidentiary
hearing need not be granted." Brewster, 429 N.J. Super. at 401 (omission in
original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997)).
"To establish a prima facie case, [a] defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the facts alleged in the light
A-1305-23 5 most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-
10(b). Moreover, a defendant must make this showing "by a preponderance of
the credible evidence." State v. Goodwin, 173 N.J. 583, 593 (2002).
Rule 3:22‑2 recognizes five cognizable grounds for PCR, including a
"[s]ubstantial denial in the conviction proceedings of [a] defendant's
[constitutional] rights," R. 3:22-2(a), which encompasses the right to the
effective assistance of counsel at issue in this appeal, State v. Nash, 212 N.J.
518, 541-42 (2013). To establish a prima facie claim of the denial of the
effective assistance of counsel as contemplated under Rule 3:22-2(a), a
defendant must demonstrate that the performance of counsel fell below the
objective standard of reasonableness set forth in Strickland v. Washington, 466
U.S. 668, 687-88 (1984), and adopted in State v. Fritz, 105 N.J. 42, 49-58
(1987), and that the outcome would have been different without the purported
deficient performance. Stated differently, a defendant must show that: (1)
counsel's performance was deficient; and (2) the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.
To satisfy the first prong, a defendant must "show[] that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" and "that counsel's representation fell
A-1305-23 6 below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88.
"[I]n making the evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance . . . ." Id. at 689. As such, a defendant "must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)).
To satisfy the second prong, "[t]he error committed must be so serious as
to undermine the court's confidence in the jury's verdict or result reached." State
v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694). This
prong generally requires that a defendant establish a "reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.
In the context of a guilty plea, to satisfy the second prong,
the defendant must establish a reasonable probability that he or she would not have pled guilty but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012). Thus, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
A-1305-23 7 [State v. Vanness, 474 N.J. Super. 609, 624 (App. Div. 2023) (citations reformatted).]
Stated differently, to set aside a guilty plea based on ineffective assistance
of counsel, a defendant must show "that there is a reasonable probability that,
but for counsel's errors, [the defendant] would not have pled guilty and would
have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In that regard, "[s]olemn
declarations in open court carry a strong presumption of verity." State v. Simon,
161 N.J. 416, 444 (1999) (alteration in original) (quoting Blackledge v. Allison,
431 U.S. 63, 74 (1977)).
Failure to meet either prong of the two-pronged Strickland/Fritz test
results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280
(2012) (citing State v. Echols, 199 N.J. 344, 358 (2009)). That said, "courts are
permitted leeway to choose to examine first whether a defendant has been
prejudiced, and if not, to dismiss the claim without determining whether
counsel's performance was constitutionally deficient." Gaitan, 209 N.J. at 350
(citation omitted) (citing Strickland, 466 U.S. at 697).
Applying these principles, we agree with the PCR judge that defendant
failed to establish the prejudice prong of the Strickland/Fritz test. Defendant
has not even averred that but for counsel's errors, he would not have pled guilty
A-1305-23 8 and would have insisted on going to trial,2 or that it would have been rational
for him to have done so under the circumstances. Instead, defendant claims that
had he been provided complete discovery, he would have obtained a better plea
deal. However, mere dissatisfaction with a plea bargain does not present a
cognizable claim for PCR. See Vanness, 474 N.J. Super. at 624 ("Plea counsel's
performance will not be deemed deficient if counsel has provided the defendant
'correct information concerning all of the relevant material consequences that
flow from such a plea.'" (quoting State v. Agathis, 424 N.J. Super. 16, 22 (App.
Div. 2012))). Even after receiving and reviewing all the discovery, defendant
still provides no competent evidence to support his claim that he could have
obtained a better plea offer. Marshall, 148 N.J. at 270 ("PCR 'is not a device for
investigating possible claims, but a means for vindicating actual claims.'"
(quoting People v. Gonzalez, 800 P.2d 1159, 1206 (Cal. 1990))). We therefore
discern no abuse of discretion in the judge's denial of defendant's PCR petition
without an evidentiary hearing
Affirmed.
2 Although defendant argues in his merits brief that plea counsel's failure to provide him with complete discovery led him to enter a negotiated guilty plea "when he otherwise would have gone to trial," an argument is not a substitute for a sworn statement which carries "a strong presumption of verity." Simon, 161 N.J. at 444 (quoting Blackledge, 431 U.S. at 74). A-1305-23 9