State of New Jersey v. T.O.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 22, 2025
• Docket: A-3324-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3324-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T. O.,1

Defendant-Appellant. ________________________

Submitted December 9, 2025 – Decided December 22, 2025

Before Judges Perez Friscia and Vinci.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 13-05-0528.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the briefs).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Timothy P. Kerrigan, Jr., Chief Assistant Prosecutor, of counsel and on the brief).

1 We use initials to protect an alleged victim of domestic violence or sexual offenses. R. 1:38-3(b)(12). PER CURIAM

Defendant T.O. appeals from a May 16, 2024 order denying her petition

for post-conviction relief (PCR) without an evidentiary hearing. We affirm for

the reasons set forth in Judge Marybel Mercado-Ramirez's thorough and well-

reasoned oral opinion.

The State alleged that on September 8, 2012, defendant, who was then

twenty-one years old, and her co-defendant Robert Myers, who was forty-five

years old, carjacked a victim in Paterson. After the victim stopped his car to

make a phone call, Myers opened the door of the victim's car, pointed a handgun

at him, demanded he get out of the car, and struck him with the handgun.

Defendant entered the passenger side and unbuckled the victim's seatbelt.

Defendant and Myers then drove off in the victim's car.

Shortly thereafter, defendant was involved in a motor vehicle accident on

the Garden State Parkway while driving the victim's car. When police officers

arrived, defendant admitted she was driving the car and that there was a gun in

the glove compartment. She told police there was another individual in the car

with her named "Robert," but refused to provide any additional information

about him. Police located Myers walking a short distance away. Police found

a black starter pistol with a black handle in the glove compartment of the car.

A-3324-23 2 In a recorded statement, defendant admitted she committed the carjacking.

She claimed she acted alone and picked up Myers after she stole the victim's car.

Defendant said she "finally got the guts to actually do it after [she] smoked

PCP." The victim subsequently identified defendant and Myers as the

perpetrators and recognized the black starter pistol as the gun used in the

carjacking.

Defendant was indicted by a Passaic County grand jury and charged with:

first-degree carjacking, N.J.S.A. 2C:15-2(a)(1-3), N.J.S.A. 2C:2-6; first-degree

robbery, N.J.S.A. 2C:15-1(a)(1) and/or N.J.S.A. 2C:15-1(a)(2), N.J.S.A. 2C:2-

6; and other related third- and fourth-degree offenses. While those charges were

pending, defendant was indicted on four separate matters and charged with:

fourth-degree aggravated assault for attempting to cause bodily injury to a

corrections officer on February 4, 2013; fourth-degree throwing bodily fluid at

a second law enforcement officer on February 4, 2013; fourth-degree throwing

bodily fluid at a law enforcement officer on February 7, 2013; and two counts

of fourth-degree throwing bodily fluid at law enforcement officers on May 10,

2013.

In March 2013, defendant underwent a competency evaluation and was

found competent to stand trial. According to the competency evaluation,

A-3324-23 3 defendant reported an abusive childhood, including sexual abuse by her father,

and she had been a gang member since the age of twelve. She did not recall

giving a statement to law enforcement following the carjacking because "she

was intoxicated on alcohol and PCP at the time[.]" The evaluation indicated

defendant had a tattoo on her neck "of the name 'Robert.'" The evaluation did

not reveal any allegations of abuse by Myers.

On August 4, 2015, defendant pleaded guilty to first-degree carjacking

and three counts of fourth-degree throwing bodily fluid at law enforcement

officers in exchange for the State's agreement to recommend a sentence of

fifteen years subject to an eighty-five percent period of parole ineligibility under

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first-degree

carjacking, concurrent sentences of eighteen months for the fourth-degree

charges, and dismissal of all other charges.

On September 11, 2015, defendant was interviewed for an adult

presentence report (PSR). The PSR did not indicate she alleged any abuse by

Myers. According to the PSR, defendant had a prior history of juvenile offenses

and adult convictions for simple battery in Georgia in 2008 and second-degree

eluding in New Jersey in 2009, for which she was sentenced to three years in

prison.

A-3324-23 4 On October 9, 2015, Myers was sentenced in accordance with a plea

agreement to ten years subject to NERA for carjacking.

On November 6, 2015, defendant was sentenced by Judge Mercado-

Ramirez. Defense counsel acknowledged defendant "ha[d] a history" but asked

the court to find mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), based on her

cooperation with law enforcement, and consider "the issues of what she went

through through[out] her life." Defense counsel asked the court to impose a

sentence of thirteen years subject to NERA for carjacking instead of the State's

recommended fifteen-year sentence.

Defendant spoke at sentencing. She attributed her conduct on September

8, 2012 to "flashbacks from when [she] was younger . . . the way [her] father

used to treat [her] when [she] was little." She said she "was just following in

the wrong direction with [her] now ex-boyfriend . . . [Myers]."

The judge found aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk

defendant will commit another offense, and nine, N.J.S.A. 2C:44-1(a)(9), the

need for deterring the defendant and others from violating the law, applied. The

judge also found mitigating factor twelve applied. The judge noted defendant

"committed a very serious offense" and defense counsel "did a very good job for

[her]" because she "[was] facing double what [she] pled guilty to."

A-3324-23 5 The judge sentenced defendant in accordance with the plea agreement to

fifteen years subject to NERA for carjacking and eighteen months concurrent on

each of the fourth-degree convictions. A conforming judgment of conviction

relating to the carjacking conviction was entered on November 10, 2015.

Judgments of convictions relating to the other convictions were entered on

November 9, 2015.

Defendant filed a direct appeal of her sentence, which was heard on our

sentencing oral argument calendar. Appellate counsel argued for application of

mitigating factor four, N.J.S.A. 2C:44-1(b)(4), that there were substantial

grounds tending to excuse or justify defendant's conduct, based on defendant's

"mental health problems." We affirmed defendant's sentence. State v. Overbay,

No. A-1781-16 (App. Div. Mar. 10, 2017).

On April 27, 2022, defendant filed a self-represented petition for PCR.

She alleged "from the age of [twelve] [she] had been

involved . . . with . . . Myers . . . who is [twenty-three] years [her] senior" and

she "was sexually abused and under his control until the date of [her] arrest."

She claimed defense counsel "did not have [her] evaluated at the time for

psychiatric issues or substance abuse."

A-3324-23 6 After PCR counsel was appointed, defendant underwent a psychological

evaluation "to determine whether [she] was a victim of domestic violence and

what effect the relationship had on [her] mental health." The evaluation

concluded defendant "suffered from battered wom[an] syndrome marked by

coercion and control, psychological and physical abuse perpetrated by [Myers,]"

which "significantly contributed to her involvement in the instant matter."

Based on that evaluation, PCR counsel filed a supplemental brief arguing

"evidence of defendant's [b]attered [w]om[an] [s]yndrome diagnosis if proffered

through an expert report, would have supported a viable defense and argument

for the application of" additional mitigating factors. Defendant argued

"[b]ecause trial counsel failed to properly investigate and present a [b]attered

[w]om[an] [s]yndrome defense, the prosecution, sentencing court, and appellate

court failed to consider in mitigation the magnitude of [Myers's] influence and

control over defendant." As a result, she "received [five] years more

imprisonment than" Myers.

On May 16, 2024, following oral argument, the judge entered an order

denying defendant's petition for PCR supported by an oral opinion. She found

defendant's petition was time-barred pursuant to Rule 3:22-12(a) because it was

A-3324-23 7 filed on April 27, 2022, more than five years after entry of the judgments of

conviction on November 9 and 10, 2015.

The judge nevertheless considered defendant's claims of ineffective

assistance of counsel and concluded they lack merit. The judge determined her

claims fail both prongs of the Strickland 2 test.

As to prong one, the judge determined "it would have been impossible for

[trial] counsel to investigate and present the [b]attered [w]oman [s]yndrome

defense, even for mitigating factor purposes, because [defendant] did[ not] tell

anybody." "[D]espite having numerous opportunities to do so, at no point did

[defendant] allege she was compelled to commit the carjacking as a result

of . . . Myers physically . . . or . . . psychologically battering and abusing [her]

over an extended period of time, prior to the time of the events in question."

"[T]he only time that [came] out [was] in her evaluation by a defense expert,

January 18[], . . . 2024, years later."

The judge also found plaintiff's claims fail prong two of the Strickland

test. She determined "even if [defendant] had presented an expert report setting

forth [her] diagnosis of [b]attered [w]oman [s]yndrome, the [c]ourt still would

2 Strickland v. Washington, 466 U.S. 668, 687 (1984). A-3324-23 8 not have found" additional mitigating factors. The judge determined defendant's

claim of ineffective assistance of appellate counsel fail for the same reasons.

On appeal defendant raises the following point for our consideration.

THE PCR JUDGE ERRED IN ITS DETERMINATION THAT TRIAL AND APPELLATE COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO ARGUE MITIGATING FACTORS BECAUSE THE DEFENDANT DID NOT DIRECTLY INFORM THEM THAT SHE WAS A BATTERED WOMAN.

"Where, as here, the PCR court has not conducted an evidentiary hearing,

we review its legal and factual determinations de novo." State v. Aburoumi, 464

N.J. Super. 326, 338 (App. Div. 2020) (citing State v. Jackson, 454 N.J. Super.

284, 291 (App. Div. 2018)). Based on our de novo review, we are satisfied the

judge correctly determined defendant's petition was time-barred because it was

filed more than five years after the entry of the judgments of conviction in

violation of Rule 3:22-12(a)(1).3

3 Defendant failed to address the court's determination that the petition was time-barred. If an issue is not briefed, it is deemed waived. State v. Huang, 461 N.J. Super. 119, 125 (App. Div. 2018); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025) ("It is, of course, clear that an issue not briefed is deemed waived"). A-3324-23 9 Defendant was sentenced on November 9 and 10, 2015. She filed her PCR

petition on April 27, 2022, more than six years later. In State v. Brewster, we

explained:

[Rule] 3:22-12(a)(1) sets a five-year time limitation for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing and fundamental injustice if defendant's claims are not considered on their merits. By its subsection (a)[(1)(B)], [Rule] 3:22-12 allows an additional one- year limitation period if the courts recognize a new constitutional right or defendant discovers a previously unknown factual predicate justifying relief from the conviction.

[429 N.J. Super. 387, 398 (App. Div. 2013).]

Defendant's petition was filed more than five years after the judgments of

conviction were entered and she does not assert excusable neglect or that her

petition is based on a previously unknown factual predicate. Accordingly, the

judge properly determined the petition was time-barred.

We are also persuaded the judge correctly determined defendant's claims

of ineffective assistance of counsel lack merit. To establish a claim of

ineffective assistance of counsel, a defendant must satisfy the two-prong

Strickland test by showing: (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."

A-3324-23 10 Strickland, 466 U.S. at 687; accord State v. Fritz, 105 N.J 42, 58 (1987)

(adopting the Strickland two-prong test). Failure to meet either prong of the

Strickland/Fritz test results in the denial of a petition for PCR. State v. Parker,

212 N.J. 269, 280 (2012).

The defendant must establish, by a preponderance of the credible

evidence, they are entitled to the requested relief. State v. Nash, 212 N.J. 518,

541 (2013) (citing State v. Preciose, 129 N.J. 451, 459 (1992)). 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). Defendants must do more than make "bald assertions"

of ineffective assistance. State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999).

Under the first prong, counsel's representation must be objectively

unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). "The test is not whether

defense counsel could have done better, but whether [they] met the

constitutional threshold for effectiveness." Nash, 212 N.J. at 543. The court

should review counsel's performance in the context of the evidence against

defendant at the time of trial. State v. Castagna, 187 N.J. 293, 314 (2006). "The

A-3324-23 11 failure to raise unsuccessful legal arguments does not constitute ineffective

assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990).

Under the "'second, and far more difficult, prong of the' Strickland

standard[,]" State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Preciose, 129

N.J. at 463), a defendant "'must show that the deficient performance prejudiced

the defense.'" State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland, 466

U.S. at 687). To establish prejudice, "[t]he defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Gideon, 244

N.J. at 550-51 (alteration in original) (quoting Strickland, 466 U.S. at 694).

Claims of ineffective assistance of appellate counsel must assert that

errors existed at the trial level that could have been ascertained by appellate

counsel's review of the record but were never raised as issues on appeal. See

State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on

ineffective assistance of appellate counsel, it must be established that appellate

counsel failed to raise an issue that would have constituted reversible error on

direct appeal. Id. at 361. Appellate counsel will not be found ineffective if

counsel's failure to appeal the issue could not have prejudiced the defendant

A-3324-23 12 because the appellate court would have found either that no error had occurred

or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State

v. Harris, 181 N.J. 391, 499 (2004).

We review the PCR court's decision to proceed without an evidentiary

hearing for an abuse of discretion. State v. L.G.-M., 462 N.J. Super. 357, 365

(App. Div. 2020). A petitioner is not automatically entitled to an evidentiary

hearing. State v. Porter, 216 N.J. 343, 355 (2013). Rule 3:22-10(b) provides a

court should hold an evidentiary hearing on a PCR petition only if the defendant

establishes a prima facie case in support of PCR, "there are material issues of

disputed fact that cannot be resolved by reference to the existing record," and

"an evidentiary hearing is necessary to resolve the claims for relief." See also

Porter, 216 N.J. at 354.

We affirm substantially for the reasons set forth in the judge's oral

opinion. We add the following comments.

Defendant's claim that trial counsel should have "referred the defendant

to an expert psychologist in 2013" finds no support in the record. As the judge

noted, the first time defendant alleged physical or mental abuse by Myers, much

less that his alleged abuse contributed to her criminal conduct, was in her 2022

petition for PCR. Moreover, the first time she was diagnosed with battered

A-3324-23 13 woman syndrome was when she was evaluated at the request of PCR counsel in

2024. There is no basis for defendant's claim that trial counsel should have

suspected she was a victim of domestic violence because she had "Robert"

tattooed on her neck or because there was a significant age difference between

her and Myers. Nor is there any basis to find appellate counsel should have

reached the same conclusion.

Counsel is not charged with knowledge of facts or circumstances known

to a client if they are never disclosed. "[C]ounsel cannot be ineffective for

failing to raise claims as to which his client has neglected to supply the essential

underlying facts when those facts are within the client's possession; clairvoyance

is not required of effective trial counsel." Dooley v. Petsock, 816 F.2d 885, 890-

91 (3d. Cir. 1987), cert. denied, 484 U.S. 863 (1987). See also State v.

Hernandez-Peralta, 261 N.J. 231, 254 (2025) (failure to determine client

incorrectly represented she was a United States citizen did not constitute

deficient performance under Strickland).

Defendant's claims also fail prong two of the Strickland test. Her claim

that a "favorable report from the expert could have been used either in trial or

to negotiate a more favorable plea bargain" is nothing more than speculation.

Trial counsel negotiated an extremely favorable plea agreement on the

A-3324-23 14 carjacking charge and concurrent sentences on the other convictions. There is

no basis for defendant's claim that an expert report would have resulted in a

more lenient plea agreement. In fact, the judge, who also sentenced defendant,

expressly concluded that an expert report would not have resulted in a more

lenient sentence because it would not have caused her to find any additional

mitigating factors, and she believed the negotiated plea was appropriate.

We are satisfied the judge correctly determined defendant's petition for

PCR was time-barred. In addition, defendant did not establish a prima facie case

of ineffective assistance. She failed to set forth any meritorious basis to find

trial or appellate counsel was ineffective or that, but for counsel's alleged errors,

she would have obtained a more favorable plea agreement and sentence. The

judge did not abuse her discretion by denying defendant's request for an

evidentiary hearing and properly denied her petition for PCR.

To the extent we have not addressed any remaining arguments, it is

because they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

A-3324-23 15