                                NOT FOR PUBLICATION WITHOUT THE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-5427-17T3

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,
v.

JOSEPH J. BROWN,

          Defendant-Appellant.
____________________________

                    Submitted October 17, 2019 – Decided October 23, 2019

                    Before Judges Haas and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment Nos. 09-12-2137,
                    10-09-1609, and Accusation No. 11-01-0151.

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

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; Roberta DiBiase,
                    Supervising Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Joseph J. Brown appeals from the January 17, 2018 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      On December 2, 2009, an Ocean County grand jury returned Indictment

No. 09-12-2137 charging defendant with two counts of third-degree theft by

deception, N.J.S.A. 2C:20-4 (counts one and three); two counts of fourth-degree

credit card theft, N.J.S.A. 2C:21-6(c)(1) (counts two and four); third-degree

impersonation/theft of identity, N.J.S.A. 2C:21-17(a)(1) (count five); fourth-

degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3) (count six); third-

degree tampering with public records or information, N.J.S.A. 2C:28-7(a) (count

seven); fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4(a)

(count eight); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1)

(count nine).

      On September 7, 2010, an Ocean County grand jury returned Indictment

No. 10-09-1609 charging defendant with ten counts of third-degree fraudulent

use of a credit card, N.J.S.A. 2C:21-6(h). On January 31, 2011, defendant was

charged under Accusation No. 11-01-151 with one count of third-degree

fraudulent use of a credit card, N.J.S.A. 2C:21-6(h).




                                                                       A-5427-17T3
                                       2
      On January 31, 2011, defendant pled guilty pursuant to a negotiated

agreement to counts one and five under Indictment No. 09-12-2137. The parties'

written plea agreement originally required defendant to also plead guilty to

count nine of this indictment. However, after defendant denied possessing the

cocaine involved in that charge during his plea colloquy, the State moved to

dismiss this count. Defendant did not object to this motion, and the judge

granted it.

      Defendant next pled guilty to counts one and two under Indictment No.

10-09-1609, charging him with third-degree fraudulent use of a credit card.

Defendant also pled guilty to the one count of third-degree fraudulent use of a

credit card charged under Accusation No. 11-01-151.

      In return for defendant pleading guilty to these charges, the State agreed

to recommend that the judge sentence defendant to five years in prison on each

count, with a two-year period of parole ineligibility. At the judge's discretion,

these terms could be either concurrent or consecutive. All of the remaining

counts would be dismissed. At the plea hearing, the judge carefully examined

defendant concerning whether he understood all of the terms of the plea, and

defendant provided a factual basis for his plea to all the charges involved in the




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                                        3
parties' agreement, including the three counts of third-degree fraudulent use of

a credit card.

      Sometime prior to sentencing, defendant filed a motion to withdraw his

plea. On the day of sentencing, defendant, who was now representing himself,

agreed to withdraw this motion. In return, the State agreed to dismiss count two

under Indictment No. 10-09-1609, charging defendant with third-degree

fraudulent use of a credit card. The State also agreed to recommend that the

judge sentence defendant to four, rather than five, years in prison on each

remaining count, with no period of parole ineligibility, and that the judge make

all of the sentences concurrent to each other, and to a sentence defendant was

then serving under a prior indictment. Defendant also retained the right to argue

that the judge sentence him to concurrent three-year terms on the remaining

charges.

      As was the case at the plea hearing, the judge thoroughly examined

defendant concerning his understanding of the amended plea agreement. After

defendant agreed that he was satisfied with the agreement, the judge granted the

State's motion to dismiss count two of Indictment No 10-09-1609, and sentenced

defendant to concurrent four-year terms on each count, with no period of parole

ineligibility.


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                                       4
      Defendant subsequently appealed his sentence. We heard the appeal on

our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and

affirmed defendant's sentence.

      Defendant then filed a petition for PCR, alleging that his attorney was

ineffective. When asked in paragraph eight of the form to provide "the facts

upon which the claim for relief [was] based," defendant cryptically stated:

            INEFFECTIVE ASSISTANCE OF COUNSEL,
            LEGAL DIRECT CONFLICT OF INTEREST BY ALL
            PARTY''S [sic]. VIOLATIONS OF THE LAW.
            Prosecutory misconduct along with felony misconduct.
            Petitioner was intimated [sic] and threaten [sic] into a
            guilty plea. Police misconduct along with violations of
            civil, legal and constitutional rights.

Defendant did not provide any further explanation for this bald assertion.

      Defendant subsequently abandoned this argument. Instead, in a brief

submitted on defendant's behalf, his attorney stated that defendant

            contends that the terms of the agreement were altered
            after he signed the plea form. It was never his intent to
            plea[d] to any count of fraudulent use of a credit card.
            Thus, he was surprised when the plea colloquy
            contained questions about those charges. However,
            because of this surprise and a fear of upsetting the
            agreement, he answered the relevant questions in the
            manner that appeared to be expected by everyone else
            involved.




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                                       5
      Defendant did not submit a certification providing a factual basis for this

new claim. In addition, defendant's attorney conceded in another portion of his

brief that "[t]he terms of the plea agreement were modified by consent of the

State and [defendant]."

      In a thorough written opinion, the judge considered defendant's assertion

and denied his petition. The judge concluded that defendant failed to satisfy the

two-prong test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which

requires a showing that a defendant's performance was deficient and that, but

for that deficient performance, the result would have been different. This appeal

followed.

      On appeal, defendant raises the following contention:

            POINT ONE

            [DEFENDANT]   IS  ENTITLED    TO   AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL BY FAILING TO
            INFORM HIM ADEQUATELY OF THE NATURE OF
            HIS PLEA.

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). The

                                                                            A-5427-17T3
                                         6
United States Supreme Court has extended these principles to a criminal defense

attorney's representation of an accused in connection with a plea negotiation.

Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 566 U.S. 134,

143-44 (2012).

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific

errors of counsel undermined the reliability" of the proceeding. United States

v. Cronic, 466 U.S. 648, 659 n.26 (1984).

      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); 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).

      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 [or she] was denied the effective assistance of counsel."         State v.


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                                        7
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999); see also R. 3:22-10(e)(2)

(stating that a court shall not shall hold an evidentiary hearing if "the defendant's

allegations are too vague, conclusory or speculative"). Therefore, a defendant

must present facts "supported by affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification."

Cummings, 321 N.J. Super. at 170.

         Here, defendant's petition was unsupported by cognizable evidence,

except the pro se petition in which defendant generally asserted that he was

forced to plead guilty. No further information was provided in support of this

claim.

         After this argument was abandoned, defendant's attorney stated in his brief

that defendant was asserting that "the terms of the [plea] agreement were altered

after he signed the plea form[,]" and "[i]t was never his intent to plea[d] to any

count of fraudulent use of a credit card." However, defendant did not submit a

certification or affidavit demonstrating that he was confused by the plea

negotiations, either at the plea hearing or later at sentencing. See R. 1:6-6;

Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div.

2004), aff’d, 184 N.J. 415 (2005).




                                                                             A-5427-17T3
                                          8
       Thus, defendant's contention is a classic "bald assertion" that did not

warrant an evidentiary hearing or PCR relief. Cummings, 321 N.J. Super. at

170.

       Affirmed.




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