                                NOT FOR PUBLICATION WITHOUT THE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-2573-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VAUGHN L. SIMMONS, a/k/a
JONES, and MICHAEL SIMMON,

     Defendant-Appellant.
______________________________

                   Submitted May 19, 2020 – Decided June 25, 2020

                   Before Judges Yannotti and Hoffman.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 10-08-1893
                   and 10-10-2395.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique D. Moyse, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Lucille M.
                   Rosano, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant appeals from orders entered by the Law Division on March 2,

2017, and August 18, 2017, which denied his petition for post-conviction relief

(PCR). He also appeals from an order entered on November 28, 2017, which

denied his motion for reconsideration. We affirm.

                                       I.

      In 2010, defendant was charged in Indictment No. 10-08-1893 with

second-degree robbery of a Dunkin' Donuts shop, N.J.S.A. 2C:15-1, and in

Indictment No. 10-10-2395, with second-degree robbery of a McDonald’s

restaurant, N.J.S.A. 2C:15-1. On November 13, 2012, defendant pled guilty to

the charges in both indictments.

      In exchange for defendant’s plea, the State agreed to recommend a ten-

year prison sentence subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2. The State also agreed to recommend that the sentence run concurrent

with a thirty-year sentence defendant was serving at the time, and the dismissal

of various counts of two other Essex County indictments.

      On February 1, 2013, the judge sentenced defendant to an aggregate term

of ten years on both indictments, subject to NERA, to run concurrently with


                                                                         A-2573-17T1
                                       2
defendant’s current sentence. The judge also imposed various fines and

penalties. On February 12, 2003, the judge entered amended judgments of

conviction to clarify the award of jail and gap-time credits. Defendant did not

appeal from the judgments.

      In November 2015, defendant filed a pro se petition for PCR. Defendant

alleged he was denied the effective assistance of counsel because his attorney:

gave him erroneous legal advice regarding the maximum sentence that could be

imposed; did not move to dismiss Indictment No. 10-08-1893; failed to

interview certain witnesses; did not argue the sentence was excessive; and failed

to investigate the guilty plea. Defendant also alleged the trial court had erred in

its award of jail credits.

      The PCR judge heard oral argument and on August 18, 2016, issued a

written opinion. The judge found an evidentiary hearing was required on

defendant's claims that his attorney was ineffective because she gave him

erroneous legal advice regarding his sentencing exposure and failed to file a

motion to dismiss the indictment based on insufficient evidence. The judge

found the other claims lacked merit or were barred by Rule 3:22-4(a).

      The judge conducted an evidentiary hearing and on March 2, 2017, filed

a written opinion and order denying PCR. Thereafter, defendant filed a motion


                                                                            A-2573-17T1
                                         3
for reconsideration of the March 2, 2017 order. On November 28, 2017, the

judge filed a written opinion and order denying reconsideration. This appeal

followed.

     Defendant's appellate counsel has filed a brief and argues:

            POINT ONE
            [DEFENDANT] IS ENTITLED TO RELIEF ON HIS
            CLAIM     THAT     COUNSEL    RENDERED
            INEFFECTIVE ASSISTANCE BY MISADVISING
            HIM ABOUT HIS SENTENCING EXPOSURE SUCH
            THAT HE PLED GUILTY WHEN HE OTHERWISE
            WOULD HAVE GONE TO TRIAL AND BY
            FAILING TO FILE A MOTION TO DISMISS
            INDICTMENT NO. 10-08-1893.

            POINT TWO
            [DEFENDANT]   IS  ENTITLED    TO   AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL FOR FAILING TO
            INVESTIGATE.

            POINT THREE
            THE MATTER MUST BE REMANDED FOR
            FINDINGS OF FACT AND CONCLUSIONS OF
            LAW    ON    [DEFENDANT'S]   MOTION TO
            WITHDRAW HIS PLEA PURSUANT TO STATE v.
            SLATER, 198 N.J. 145 (2009).

     Defendant has filed a pro se supplemental brief in which he argues:

            POINT I
            THE [PCR] COURT ERRED IN DENYING
            [DEFENDANT] A NEW TRIAL BECAUSE IN THE
            PCR COURT[']S OPINION THE FACTUAL BASIS

                                                                       A-2573-17T1
                                      4
FOR A GUILTY PLEA WAS NOT GIVEN OF
[DEFENDANT'S]   OWN    INDEPENDENT
RECOLLECTION.

POINT II
BECAUSE OF TRIAL COUNSEL'S MISLEADING
ADVICE[, DEFENDANT] WAS DENIED HIS
CONSTITUTIONAL RIGHT TO A TRIAL.

POINT III
THE PCR COURT ERRED IN NOT GRANTING
[DEFENDANT] A NEW TRIAL WHEN TRIAL
COUNSEL CROSSED OUT TWENTY YEARS AND
WROTE LIFE AS THE MAXIMUM SENTENCE FOR
A THEFT OR A SECOND DEGREE ROBBERY TO
GET [DEFENDANT] TO PLEAD GUILTY.

POINT IV
THE PCR COURT FAILED        TO REMAIN
IMPARTIAL AND ORDER AN     EVIDENTIARY
HEARING WHEN THE ELEMENT   OF FORCE FOR
A ROBBERY CONVICTION WAS   ABSENT FROM
THE VIDEO.

POINT V
TRIAL COUNSEL WAS NOT FUNCTIONING AS
COUNSEL GUARANTEED BY THE SIXTH
AMENDMENT TO THE U.S. CONSTITUTION
WHEN SHE FAILED TO FILE A MOTION TO
DISMISS.

POINT VI
THE PCR COURT ERRED IN FINDING TRIAL
COUNSEL CREDIBLE AND THE COURT[']S
RATIONALE DENYING [PCR] WAS ARBITRARY,
WHIMSICAL AND CAPRICIOUS.



                                          A-2573-17T1
                  5
                                       II.

      We first consider defendant's contention that the PCR court erred by

finding he was not denied the effective assistance of counsel.         Defendant

contends his attorney provided erroneous advice concerning his sentencing

exposure, failed to file a motion to dismiss the charge in Indictment No. 10 -08-

1893, and did not investigate certain witnesses who would have supported the

defense.

      To prevail on a claim of ineffective assistance of counsel, a defendant

must satisfy the two-prong test established in Strickland v. Washington, 466

U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987). The defendant must show that: (1) counsel's performance

was deficient; and (2) the deficient performance prejudiced the defendant.

Strickland, 466 U.S. at 687.

      To satisfy the first prong of the Strickland test, a defendant must overcome

a "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance . . . ." Id. at 689. A deficient performance

means that "counsel made errors so serious that counsel was not functioning as

the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687.




                                                                           A-2573-17T1
                                        6
      To establish the second prong of the Strickland test, the defendant must

establish "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." Id. at 694.

      The Strickland standard applies to claims of ineffective assistance of

counsel associated with a guilty plea. State v. Gaitan, 209 N.J. 339, 350-51

(2012) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)). To establish the

prejudice prong under Strickland in the context of a plea, a defendant must

establish that "there is a reasonable probability that, but for counsel's errors, [he

or she] would not have pled guilty and would have insisted on going to trial."

Id. at 351 (alteration in original) (quoting State v. Nuñez-Valdéz, 200 N.J. 129,

139 (2009)).

      We note that, on appeal, we must defer to the PCR court's findings of fact

if those findings are supported by sufficient credible evidence in the record.

State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). Our deference to

the trial judge's findings is especially appropriate when "substantially influenced

by [the judge's] opportunity to hear and see the witnesses . . . ." State v. Elders,

192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).


                                                                              A-2573-17T1
                                          7
We need not, however, defer to the trial court's legal conclusions, which we

review de novo. Nash, 212 N.J. at 540-41 (citing State v. Harris, 181 N.J. 391,

415-16 (2004)).

      A. Advice Regarding Sentencing Exposure.

      Defendant claims his attorney advised him that if he went to trial and was

convicted, he would be sentenced to life imprisonment pursuant to the "Three

Strikes Law," which states:

            A person convicted of a crime under any of the
            following: [N.J.S.A.] 2C:11-3; subsection a. of
            [N.J.S.A.] 2C:11-4; a crime of the first degree under
            [N.J.S.A.] 2C:13-1, paragraphs (3) through (6) of
            subsection a. of [N.J.S.A.] 2C:14-2; [N.J.S.A.] 2C:15-
            1; or section 1 of P.L. 1993, c. 221 (C. 2C:15-2), who
            has been convicted of two or more crimes that were
            committed on prior and separate occasions, regardless
            of the dates of the convictions, under any of the
            foregoing sections or under any similar statute of the
            United States, this State, or any other state for a crime
            that is substantially equivalent to a crime under any of
            the foregoing sections, shall be sentenced to a term of
            life imprisonment by the court, with no eligibility for
            parole.

            [N.J.S.A. 2C:43-7.1(a).]

      Defendant contends counsel's advice was incorrect because no force was

involved and he could only be convicted of theft, which is a third-degree offense.

He therefore argues he would not be subject to sentencing under the "Three


                                                                           A-2573-17T1
                                        8
Strikes Law." He claims he chose to plead guilty because he believed he faced

a life sentence if he went to trial and were found guilty.

      The PCR judge determined that in July 2012, defendant's attorney advised

defendant that if convicted, he would be subject to the "Three Strikes Law" and

sentenced to a term of life imprisonment with a sixty-three-year period of parole

ineligibility. The judge found counsel's initial advice was incorrect; however,

defendant decided at that time to reject the State's plea offer and proceed to trial.

The judge found defendant was not prejudiced by counsel's erroneous advice.

      The judge further found defendant's attorney corrected her initial

erroneous advice and on November 13, 2012, "advised [defendant] that the

maximum sentence was twenty years."            The plea form stated defendant's

maximum sentencing exposure for the two robbery charges was twenty years.

Defendant initialed and signed the plea agreement. His attorney testified at the

evidentiary hearing that she reviewed the plea form with defendant.

      Moreover, when defendant entered the plea, the judge advised him that

the maximum sentence was twenty years. Defendant informed the judge he

understood. In addition, on February 1, 2013, when defendant was sentenced,

defendant stated "that he understood the maximum sentence was twenty years."




                                                                              A-2573-17T1
                                          9
      The judge found that "[t]he only evidence that [defendant] was not advised

of the correct maximum sentence [wa]s his own testimony" and defendant's

assertion was not credible. The judge concluded that defendant failed to show

that he pled guilty as a result of incorrect legal advice by his attorney regarding

his maximum sentencing exposure.

      We are convinced there is sufficient evidence in the record to support the

PCR judge's findings of fact and his conclusion that defendant was not denied

the effective assistance of counsel with regard to his plea. The record supports

the judge's finding that when defendant entered his plea to two counts of second-

degree robbery, he was informed and understood that if convicted on both

counts, the maximum sentence that could be imposed was twenty years.

      B. Motion to Dismiss Indictment.

      Defendant claims he was denied the effective assistance of counsel

because his attorney failed to file a motion to dismiss Indictment No. 10-08-

01893, in which he was charged under N.J.S.A. 2C:15-1(a) with second-degree

robbery of the Dunkin' Donuts shop. On appeal, defendant argues the PCR court

erred by finding this claim lacked merit.

      When a defendant seeks dismissal of an indictment on the ground that the

State failed to present sufficient evidence before the grand jury, the defendant


                                                                            A-2573-17T1
                                       10
has a "heavy" burden "to demonstrate that evidence is clearly lacking to support

the charge." State v. Graham, 284 N.J. Super. 413, 417 (App. Div. 1995)

(quoting State v. McCrary, 97 N.J. 132, 142 (1984)). The indictment will not

be set aside if there is some evidence establishing each element of the charged

offense. State v. Morrison, 188 N.J. 2, 12 (2006).

      A defendant may be found guilty of second-degree robbery under N.J.S.A.

2C:15-1(a) if the State proves beyond a reasonable doubt that the defendant: 1)

"was in the course of committing a theft"; and 2) "while in the course of

committing that theft [he] . . . knowingly inflicted bodily injury or used force

upon another . . . ." Model Jury Charges (Criminal), "Robbery in the Second

Degree (N.J.S.A. 2C:15-1)" (rev. July 2, 2009) (emphasis added). Our Supreme

Court has explained that:

            a simple snatching or sudden taking of property from
            the person of another does not of itself involve
            sufficient force to constitute robbery, though the act
            may be robbery where a struggle ensues, the victim is
            injured in the taking, or the property is so attached to
            the victim's person or clothing as to create resistance to
            the taking.

            [State v. Stein, 124 N.J. 209, 213-14 (1991) (quoting
            People v. Patton, 76 Ill. 2d 45, 49 (1979)).]

      Furthermore, "[i]t will be a theft, therefore, and not a robbery, when the

evidence show[s] no more force than the mere physical effort of taking the

                                                                          A-2573-17T1
                                       11
pocketbook from [the victim’s] person and transferring it to [the defendant] ."

Id. at 214 (alterations in original) (quoting People v. Taylor, 129 Ill. 2d 80, 84

(1989)). However, "pushing" a victim can constitute use of force. State v.

Williams, 289 N.J. Super. 611, 617 (App. Div. 1996).

      Here, defendant claimed the State failed to present sufficient evidence to

show that during the theft at Dunkin' Donuts, he used force. In the grand jury

proceeding, the State presented testimony from Detective Angel Perez of the

Newark Police Department.        Perez stated that on November 7, 2009, an

employee of a Dunkin' Donuts shop reported that a male, who was later

identified as defendant, entered the shop and took money from the register.

      Perez noted that he had reviewed a surveillance video of the incident. He

stated that defendant placed an order and gave money to the employee. When

the worker opened the cash register, defendant jumped over the counter and

grabbed money from the register.

      The PCR judge found defendant had not shown that his attorney erred by

failing to seek dismissal of the indictment. The judge stated that defendant had

not shown the motion would have been granted. The PCR judge noted that a

defendant who challenges an indictment has the burden of demonstrating that

there is insufficient evidence to support the charge.


                                                                           A-2573-17T1
                                       12
       The PCR judge stated that based on the evidence presented, the grand

jury could reasonably have inferred defendant pushed the cashier aside in order

to grab the money from the cash register. The judge pointed out that when

defendant provided a factual basis for his plea, he admitted that, after he took

the money, "a struggle ensued and [he] fled." Defendant had stated he "push[ed]

the clerk out of the way during the course of that struggle . . . ."

      The judge also found defendant failed to show there was a reasonable

probability the result of the proceeding would have been different if his attorney

had moved to dismiss the indictment. The judge noted the State could have

again presented the matter to the grand jury and there was no reason to believe

the State could not have been able to establish a prima facie case of robbery at

the Dunkin' Donuts shop.

      The judge observed that the State had a video recording of the incident

and defendant had admitted when he pled guilty that he shoved the cashier. The

judge found this evidence would have been sufficient to establish the element of

force required to charge second-degree robbery under N.J.S.A. 2C:15-1(a). The

judge also observed that dismissal of the charge regarding the robbery at the

Dunkin' Donuts shop would not have affected the plea offer regarding the

robbery at McDonald's.


                                                                           A-2573-17T1
                                        13
      We are convinced there is sufficient credible evidence in the record to

support the judge's findings of fact.        The record supports the PCR court's

determination that defendant failed to show he was denied the effective

assistance of counsel because his attorney did not seek to dismiss the indictment.

      C. Investigation of Other Witnesses.

      Defendant argues the PCR court erred by failing to conduct an evidentiary

hearing on his claim that his attorney was deficient because she failed to

investigate two workers who were in the Dunkin' Donuts shop during the

robbery. He claims these workers would have supported his defense if they had

been called as witnesses.

      The PCR court did not err by refusing to conduct an evidentiary hearing

on this claim. An evidentiary hearing is required on a PCR petition only if the

defendant presents a prima facie case in support of PCR, the court determines

there are material issues of disputed fact that cannot be resolved based on the

existing record, and the court determines that an evidentiary hearing is necessary

to resolve the claims for relief. R. 3:22-10(b).

      Here, defendant alleged the Dunkin' Donuts workers would not have been

able to identify him as the perpetrator of the robbery. However, "[i]n order to

establish a prima facie claim, a [defendant] must do more than make bald


                                                                           A-2573-17T1
                                        14
assertions that he was denied the effective assistance of counsel." State v.

Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999)).    When a defendant claims his attorney failed to

adequately investigate the 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." Ibid.

(quoting Cummings, 321 N.J. Super. at 170).

      Here, defendant did not present affidavits or certifications from the

Dunkin' Donuts workers, setting forth facts an investigation would have

revealed. Thus, the PCR court did not err by finding that defendant did n ot

establish a prima facie case of ineffective assistance of counsel with regard to

the alleged failure to investigate these witnesses. The PCR court correctly found

that defendant was not entitled to an evidentiary hearing on this claim.

                                       III.

      Defendant argues this matter should be remanded to the PCR court

because the judge did not make findings of fact or conclusions of law on his

motion to withdraw his plea. We disagree.

      After a defendant has been sentenced, the court may permit the defendant

to withdraw a guilty plea "to correct a manifest injustice."      R. 3:21-1. In


                                                                           A-2573-17T1
                                      15
determining whether to permit the defendant to withdraw the plea, the court

applies the test in State v. Slater, 198 N.J. 145, 150 (2009). The court should

consider: "(1) whether the defendant has asserted a colorable claim of

innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)

the existence of a plea bargain; and (4) whether withdrawal would result in

unfair prejudice to the State or unfair advantage to the accused." Ibid.

      "No one factor is dispositive, nor must a movant satisfy all four." State v.

O'Donnell, 435 N.J. Super. 351, 369 (App. Div. 2014).            In addition, the

“[d]efendant must ‘present specific, credible facts and . . . point to facts in the

record that buttress [his] claim.’” State v. McDonald, 211 N.J. 4, 17 (2012)

(quoting Slater, 198 N.J. at 158).

      Here, defendant has not asserted a colorable claim of innocence. While

he claims he did not commit the robberies at the Dunkin' Donuts and

McDonald's, he provided an adequate factual basis showing he committed the

offenses when he pled guilty. There also is sufficient evidence indicating that

defendant did, in fact, commit both offenses, which includes the surveillance

video of the robbery at Dunkin' Donuts, and his DNA, which was found on an

earpiece left on the scene at McDonald's.




                                                                            A-2573-17T1
                                       16
      Moreover, defendant has not provided "fair and just reasons" for

withdrawing the plea. Slater, 198 N.J. at 159. The record shows defendant was

informed of the material elements of the plea, including his sentencing exposure.

He does not claim his reasonable expectations in entering the plea have not been

met. Defendant also has not made a "plausible showing" of a valid defense or

"credibly demonstrated" why the defense was not raised in a timely manner. Id.

at 159-60.

      Furthermore, defendant entered his plea pursuant to a plea bargain, and he

would reap an “unfair advantage” if permitted to withdraw his plea at this time.

Id. at 150. When defendant pled guilty, he admitted to facts showing that he

committed the charged offenses, which were committed in December 2009. The

State would be unfairly prejudiced if it were required to try the case after this

lengthy period of time.

      We are therefore convinced that defendant failed to establish he should be

permitted to withdraw his plea in order to correct "a manifest injustice."

R. 3:21-1. Therefore, we reject defendant's contention that the matter should be

remanded to the PCR court for further proceedings on his request to withdraw

his plea.




                                                                          A-2573-17T1
                                      17
      We have considered defendant's other contentions. We conclude these

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

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

      Affirmed.




                                                                       A-2573-17T1
                                     18
