                        NOT FOR PUBLICATION WITHOUT THE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-0361-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MICHAEL GOMES, a/k/a
MICHAEL WELLS,

     Defendant-Appellant.
___________________________________

              Submitted January 25, 2017 – Decided            March 22, 2017

              Before Judges Accurso and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              13-09-1698.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Abby P. Schwartz, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Frances Tapia Mateo,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant, Michael Gomes, appeals from an order denying his

petition for post-conviction relief (PCR) after oral argument,

without an evidentiary hearing.            We affirm.
     A grand jury charged defendant with first-degree robbery,

N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon

for unlawful purposes, N.J.S.A. 2C:39-4a (count two); second-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, (count

three);   and   third-degree       receiving   stolen   property,   N.J.S.A.

2C:20-7 (count four).

     Pursuant to a plea agreement on May 8, 2014, defendant pled

guilty to count three of the indictment.           Prior to sentencing, on

June 19, 2014, defendant filed a pro se motion seeking to have

trial counsel relieved and to withdraw his guilty plea.                   Based

upon that motion, a new attorney was appointed to represent

defendant.

     On February 20, 2015, defendant appeared for a hearing on the

motion with his new counsel.          Defendant withdrew his motion and

advised the judge he was prepared to proceed with sentencing. That

same day, defendant was sentenced to a five-year state prison term

with three-years' parole ineligibility.             Appropriate fines and

penalties were imposed.        The remaining counts of the indictment

were dismissed.

     On March 9, 2015, defendant filed a pro se PCR.           Four months

later, defendant's PCR counsel filed a certification on behalf of

defendant    and   submitted   a    supplemental   brief.     In    his   PCR,

defendant argued that his counsel was ineffective for failing to

                                       2                              A-0361-15T1
review the case, failing to provide defendant with discovery,

failing to apprise defendant of the strengths and weaknesses of

the State's evidence, and failing to investigate the plea bargain's

effect on pending criminal charges against him in Massachusetts.

      In a thorough and well-reasoned oral opinion, the judge denied

the petition finding that defendant's arguments primarily amounted

to vague allegations and the assertions were "directly contrary

to the statements [defendant] made under oath at the time he

entered his plea."   Specifically, the judge pointed to defendant's

statement during the plea that counsel fully discussed the case,

its facts and circumstances, and his potential defenses.                  The

judge also noted that counsel properly apprised defendant of his

sentence exposure, explaining that defendant's prior offenses made

him eligible for an extended prison term if convicted after trial.

      Defendant alleged that his second trial counsel did not make

a   sufficient   effort   to   determine   the   status   of   the   pending

Massachusetts charges, and argued that this would have had a "big

effect" on the New Jersey criminal charges.1        The judge disagreed.

Subsequent to the plea, the judge noted those charges remained

pending due to an issue with the testing of the narcotics involved.



1
 There is nothing in the record beyond defendant's bald assertion
as to whether the Massachusetts criminal charges or their status
could have had any impact on the New Jersey charges.

                                    3                                A-0361-15T1
The   judge    found    this    issue     could        not   have   been   reasonably

anticipated by defendant's counsel, and concluded the argument was

without merit.

      Defendant raises the following point on appeal:

                                        POINT I

              BY FAILING TO INVESTIGATE THE OFFENSE, FAILING
              TO GIVE [DEFENDANT] A COPY OF HIS DISCOVERY
              SO THAT [DEFENDANT] COULD GO OVER THE STATE'S
              PROOFS WITH HIS [ATTORNEY], FAILING TO MEET
              WITH [DEFENDANT], AND, FAILING TO FILE A
              MOTION TO WITHDRAW [DEFENDANT'S] GUILTY PLEA,
              COUNSEL WAS INEFFECTIVE IN VIOLATION OF
              [DEFENDANT'S] RIGHTS TO DUE PROCESS AND A FAIR
              TRIAL.

      "Post-conviction         relief    is      New   Jersey's     analogue   to   the

federal writ of habeas corpus."               State v. Preciose, 129 N.J. 451,

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled

to post-conviction relief if there was a "[s]ubstantial denial in

the   conviction       proceedings      of       defendant's      rights   under    the

Constitution of the United States or the Constitution or laws of

the State of New Jersey[.]"               "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, supra, 129 N.J. at 459 (citations omitted).                      "To sustain

that burden, specific facts" that "provide the court with an

adequate basis on which to rest its decision" must be articulated.

State v. Mitchell, 126 N.J. 565, 579 (1992).



                                             4                                 A-0361-15T1
     Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.   See R. 3:22-4(a)(2);

Preciose, supra, 129 N.J. at 460.      In determining whether a

defendant is entitled to relief on the basis of ineffective

assistance of counsel, New Jersey courts apply the two-prong test

articulated by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.

2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648,

658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).

Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-

50 (1987).

     Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693.   Under the second prong, a defendant must demonstrate

"a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

     In demonstrating that counsel's performance was deficient

under the first prong of Strickland, a defendant must overcome "a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance."   Fritz, supra, 105



                                5                          A-0361-15T1
N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct.

at 2065, 80 L. Ed. 2d at 694).

     In satisfying the second prong, because prejudice is not

presumed, a defendant must typically demonstrate "how specific

errors of counsel undermined the reliability of the finding of

guilt."     Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047

n.26, 80 L. Ed. 2d at 668 n.26 (citation omitted); see also Roe v.

Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L.

Ed. 2d 985, 998 (2000).      There must be "a probability sufficient

to undermine confidence in the outcome."         Strickland, supra, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

     The United States Supreme Court has applied 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, 162-163, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07

(2012); Missouri v. Frye, 566 U.S. 134, 144 132 S. Ct. 1399, 1407-

08, 182 L. Ed. 2d 379, 390 (2012).       A defendant must demonstrate

with "reasonable probability" that the result would have been

different     had   he   received   proper    advice   from   his     trial

attorney.    Lafler, supra, 566 U.S. at 163, 132 S. Ct. at 1384, 182

L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104

S. Ct. at 2068, 80 L. Ed. 2d at 698).



                                    6                               A-0361-15T1
     Review    of     an   order   granting    or    denying     PCR   contains

consideration of mixed questions of law and fact. State v. Harris,

181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.

Ct. 2973, 162 L. Ed. 2d 898 (2005).            The appellate court defers

to a PCR court's factual findings and will uphold those findings

that are "supported by sufficient credible evidence in the record."

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

However, a PCR court's interpretations of law are provided no

deference and are reviewed de novo.           Id. at 540-41.

     On     appeal,    defendant    contends    he    received     ineffective

assistance of counsel since his counsel failed to review the case,

failed to provide him with discovery, failed to apprise defendant

of the strengths and weaknesses of the State's evidence, and failed

to investigate the plea bargain's effect on his pending criminal

charges in Massachusetts.

     We view defendant's criticism of his counsel's performance

as directed at his post-conviction dissatisfaction with the plea

agreement.      In essence, defendant alleges that, but for his

counsel's unprofessional errors, he would not have entered into

the plea.     The record belies that bald allegation.            See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,

162 N.J. 199 (1999) (" A petitioner must do more than make bald



                                      7                                 A-0361-15T1
assertions      that   he    was    denied   the   effective   assistance     of

counsel.")

     After the terms of the plea agreement were placed on the

record by counsel, the judge, who was also the PCR judge, addressed

defendant regarding his understanding of its terms.                 The judge

specifically addressed defendant's right to go to trial and the

consequences of pleading guilty to the charged offense.             The judge

also alerted defendant to the imposition of parole ineligibility

and inquired whether he had questions for the court or his counsel.

At the conclusion of the judge's instructions, counsel questioned

defendant about the circumstances surrounding the commission of

the offense. Defendant acknowledged his culpability, specifically

as to the possession of a weapon charge for which he was pleading

guilty.    Despite the opportunity to do so, defendant did not

express reticence in entering the plea based upon the arguments

he now raises; that he was uniformed by a lack of discovery or a

lack of knowledge about the strengths and weaknesses of the State's

case.

     Regarding the plea process, a guilty plea may not be entered

without   the    judge      first   addressing     defendant   personally   and

determining by inquiry of defendant and others, in the court's

discretion, that there is a factual basis for the plea and that

the plea is made voluntarily, with an understanding of the nature

                                         8                             A-0361-15T1
of the charges and consequences of the plea.              R. 3:9-2; State v.

Kovack, 91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J.

416, 443 (1999); State v. Barboza, 115 N.J. 415, 420-21 (1989);

State v. Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107

N.J. 283, 292-93 (1987). Here, the "cold record" not only supports

a finding that the plea hearing complied with R. 3:9-2, the

substance of the hearing directly refutes defendant's arguments

of ineffective assistance.

       Additionally, the plea agreement permitted defendant to plead

guilty to one count of a four-count indictment, which included a

count for first-degree robbery.          The agreement called for a five-

year-term    of    imprisonment     subject    to   a   parole    disqualifier.

However, if convicted after trial on the other charges, defendant

was subject to a more severe aggregate sentence of incarceration,

including eighty-five percent parole ineligibility subject to the

"No Early Release Act" on the robbery. Notably, the State's proofs

included a co-defendant's statement implicating defendant.

       Placed     in    context,    we   are    satisfied       that   counsel's

performance with respect to his obtaining the plea agreement was

well   within     the   minimum    standard    of   effective    assistance     of

counsel.    "The test is not whether defense counsel could have done

better, but whether he [or she] met the constitutional threshold

for effectiveness."        State v. Nash, supra, 212 N.J. at 543.

                                         9                               A-0361-15T1
     The record is devoid of any basis to support the finding that

counsel's performance was deficient or that he was not functioning

in a manner guaranteed by the Sixth Amendment.       See State v.

Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert.

denied, ____ U.S. ____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

Therefore, we conclude defendant has not made out a prima facie

case of ineffective assistance of counsel.   Preciose, supra, 129

N.J. at 463.

     Notwithstanding our determination as to the failure to make

out a prima facie case, we briefly address the second Strickland

prong.   Following our review of the record, we hold with respect

to the second prong that defendant has also failed to demonstrate

how any alleged deficiency resulted in a prejudice that, "but for

counsel's unprofessional errors, the result of the proceeding

would have been different."   Strickland, supra, 466 U.S. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.

at 52 (citations omitted).

     Finally, we reject defendant's argument that it was error to

deny the PCR without an evidentiary hearing.      "An evidentiary

hearing . . . is required only where the defendant has shown a

prima facie case and the facts on which he relies are not already

of record." Pressler & Verniero, Current N.J. Court Rules, comment

2 on R. 3:22-10 (2015).   The mere raising of a claim for PCR does

                                10                         A-0361-15T1
not   entitle   defendant   to   an   evidentiary   hearing.   State    v.

Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,

162 N.J. 199 (1999).        As defendant failed to establish a prima

facie case of ineffective assistance of counsel, no evidentiary

hearing was required.

      In light of our review of the record, we conclude defendant's

arguments lack sufficient merit to warrant discussion in a written

opinion to the extent not already addressed.         R.2:11-3(e)(2).

      Affirmed.




                                      11                         A-0361-15T1
