                                NOT FOR PUBLICATION WITHOUT THE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-4590-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY K. WHITE,

     Defendant-Appellant.
____________________________

                    Argued October 23, 2018 – Decided October 31, 2018

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 11-10-2379.

                    Robert C. Pierce, Designated Counsel, argued the cause
                    for appellant (Joseph E. Krakora, Public Defender,
                    attorney; William P. Welaj, of counsel and on the
                    brief).

                    Nicole L. Campellone, Assistant Prosecutor, argued the
                    cause for respondent (Damon G. Tyner, Atlantic
                    County Prosecutor, attorney; Nicole L. Campellone, of
                    counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant Anthony K. White appeals from a May 11, 2017 order denying

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

affirm, substantially for the reasons stated by Judge Michael Blee in his cogent

written opinion.

      Because Judge Blee's opinion thoroughly and correctly addressed all of

defendant's PCR issues, a brief summary will suffice. In July 2011, the police

came to defendant's motel room in Atlantic City and learned that televisions had

been stolen. A one-count indictment charged defendant with third-degree theft.

The State extended a plea offer for defendant to plead to a disorderly person's

offense. Defendant rejected the offer, but then tried to accept it on the day of

the trial. By that time, the initial plea offer had been revoked. The prosecutor

then extended an offer for defendant to plead to a fourth-degree offense. After

the judge denied defendant a continuance to obtain new counsel, defendant

accepted this offer, entered a guilty plea to fourth-degree theft, and received a

six-month suspended sentence.

      Defendant appealed and we affirmed defendant's sentence on an excessive

sentence oral argument calendar. Defendant then filed a motion to withdraw his

guilty plea. The trial court denied the motion, concluding that defendant failed


                                                                         A-4590-16T2
                                       2
to "show a colorable claim of innocence" under State v. Slater, 198 N.J. 145

(2009).   Defendant appealed but withdrew the appeal three months later.

Defendant then filed the PCR petition under review.        Judge Blee denied

defendant's petition without an evidentiary hearing. This appeal followed.

      On this appeal, defendant presents the following arguments:

            1.    THE TRIAL COURT ERRED IN DENYING
                  THE DEFENDANT'S PETITION FOR POST-
                  CONVICTION     RELIEF     WITHOUT
                  AFFORDING HIM AN EVIDENTIARY
                  HEARING TO FULLY ADDRESS HIS
                  CONTENTION THAT HE WAS ENTITLED TO
                  WITHDRAW HIS GUILTY PLEA ON THE
                  BASIS HE HAD FAILED TO RECEIVE
                  ADEQUATE LEGAL REPRESENTATION
                  FROM TRIAL COUNSEL, RESULTING IN A
                  GUILTY PLEA WHICH HAD NOT BEEN
                  FREELY,      KNOWINGLY        AND
                  VOLUNTARILY ENTERED.

                  A.    THE      PREVAILING      LEGAL
                        PRINCIPLES REGARDING CLAIMS OF
                        INEFFECTIVE    ASSISTANCE   OF
                        COUNSEL, EVIDENTIARY HEARINGS
                        AND         PETITIONS      FOR
                        POSTCONVICTION RELIEF.

                  B.    THE DEFENDANT DID NOT RECEIVE
                        ADEQUATE                LEGAL
                        REPRESENTATION   FROM    TRIAL
                        COUNSEL AS A RESULT OF TRIAL
                        COUNSEL'S FAILURE TO PRESENT
                        ANY LEGAL ARGUMENT, LET ALONE
                        A COGENT LEGAL ARGUMENT, WITH

                                                                       A-4590-16T2
                                      3
                     RESPECT TO THE DEFENDANT'S
                     DESIRE FOR A CONTINUANCE TO
                     OBTAIN PRIVATE COUNSEL IN
                     LIGHT     OF       UNEXPECTED
                     DEVELOPMENTS IN HIS CASE.

                C.   THE DEFENDANT DID NOT RECEIVE
                     ADEQUATE                 LEGAL
                     REPRESENTATION    FROM    TRIAL
                     COUNSEL AS A RESULT OF TRIAL
                     COUNSEL'S      FAULTY      AND
                     INACCURATE         INFORMATION
                     PROVIDED TO THE DEFENDANT
                     ASSURING HIM THE STATE'S PLEA
                     OFFER      INVOLVING        THE
                     DISORDERLY PERSONS OFFENSE OF
                     THEFT WOULD REMAIN AVAILABLE
                     TO THE DAY OF TRIAL.

                D.   THE DEFENDANT DID NOT RECEIVE
                     ADEQUATE                 LEGAL
                     REPRESENTATION    FROM    TRIAL
                     COUNSEL AS A RESULT OF HER
                     FAILURE TO PREPARE FOR TRIAL.

      In his supplemental pro se brief, defendant raises an
additional point:

          I.    COUNSEL WAS NOT PREPARED FOR
                TRIAL,  WHICH   CAUSED      HER   TO
                REPRESENT THE DEFENDANT AT THE
                PLEA HEARING WHILE LABORING UNDER
                AN "ACTUAL CONFLICT OF INTEREST"
                THAT HAS ADVERSELY AFFECTED HER
                PERFORMANCE. THIS IS IN VIOLATION OF
                U.S. CONST. AMEND. VI AND THE
                DEFENDANT'S PLEA MUST BE VACATED.


                                                              A-4590-16T2
                                  4
      Having reviewed the entire record presented to us, we conclude these

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

2:11-3(e)(2). We add the following comments.

      A defendant’s claim of ineffective assistance of counsel is considered

under the standards 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 Strickland test applies to challenges to guilty pleas based on alleged

ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). A

defendant must show that his attorney failed to provide advice that "was within

the range of competence demanded of attorneys in criminal cases." Id. at 56

(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A defendant also

must show "there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial." Id. at

59.

      Here, defendant claims he should be permitted to withdraw his plea

because his attorney was deficient and he was forced to enter the plea; however,

this claim is nothing more than a bald assertion. See State v. Cummings, 321

N.J. Super. 154, 170 (App. Div. 1999). Defendant argues his claim that his

counsel did not adequately prepare for trial was sufficient to entitle him to an


                                                                          A-4590-16T2
                                        5
evidentiary hearing. However these claims were unsupported in the record and

defendant offered provided no affidavit or certification to support this assertion.

Nor does the record contain any evidence that defendant had a colorable claim

of innocence.

      As for defendant's argument that counsel misinformed him that the plea

offer would remain available through trial, we agree with Judge Blee's

assessment that "[r]egardless of conversations [defendant] may or may not have

had with his trial counsel, he was made aware that by going on the trial list he

was rejecting the plea offer . . . ." The status arraignment forms signed by

defendant demonstrate he knew of the plea cut off and that he was rejecting an

offer to plead to a disorderly person's offense. At his plea hearing, defendant

did not dispute that the court had confirmed defendant's knowledge and

understanding regarding his previous rejection of the State's plea offer.

      As a result, there was no basis to hold an evidentiary hearing on his claims.

State v. Preciose, 129 N.J. 451, 462-63 (1992); R. 3:22-10(b).

      Affirmed.




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