                                NOT FOR PUBLICATION WITHOUT THE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-3274-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHABBA Z. GREEN,
a/k/a SHABBA K. GREEN,
and ZIARE GREEN,

     Defendant-Appellant.
_________________________

                    Submitted May 28, 2020 – Decided June 15, 2020

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-03-0980.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Richard Sparaco, Designated Counsel, on the
                    brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Shabba Z. Green appeals from a January 14, 2019 order

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

hearing. We affirm.

      In 2015, defendant was arrested for robbing a juvenile at knife point in

East Orange. A grand jury indicted defendant for first-degree robbery, N.J.S.A.

2C:15-1, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d),

and possession of a weapon under circumstances not manifestly appropriate,

N.J.S.A. 2C:39-5(d).

      In 2016, defendant pled guilty to first-degree robbery, and pursuant to a

plea agreement, was sentenced as a second-degree offender. He received a six-

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

2C:43-7.2, and five years of parole supervision. In his PCR petition, defendant

argued his plea counsel did not advise him he was subject to five years of parole

supervision, and instead he should have received three years of parole

supervision consistent with a second-degree robbery conviction. The PCR judge

rejected defendant's argument, and referencing defendant's plea form, noted the

following:

             Defendant was asked . . . "Do you understand that
             because you pled to these charges the Court must

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            impose a five year term of parole supervision, and that
            term will begin as soon as you complete the sentence of
            incarceration?" Below it says, "First degree term for
            parole supervision, five years. Second degree parole
            supervision, three years." This defendant circled yes.

      The judge concluded defendant did not demonstrate a prima facie case of

ineffective assistance of counsel because his "counsel could not have effectively

argued for three years, because by law statutorily . . . he pled guilty to a first

degree robbery he must have received and did receive the five years term of

parole supervision."

      Defendant raises the following point on this appeal:

            THE PCR COURT SHOULD HAVE GRANTED THE
            DEFENDANT AN EVIDENTIARY HEARING ON
            HIS PETITION FOR POST-CONVICTION RELIEF
            BASED UPON HAVING MADE A PRIMA FACIE
            SHOWING OF INEFFECTIVE ASSISTANCE OF
            COUNSEL WHERE COUNSEL GAVE INCORRECT
            ADVICE THAT HE WOULD RECEIVE THREE
            YEARS OF PAROLE SUPERVISION RATHER
            THAN FIVE YEARS WHEN PLEADING TO A
            FIRST-DEGREE CRIME.

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

must meet the two-part test Strickland v. Washington, 466 U.S. 668, 687 (1984)

established, which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58

(1987). Under Strickland, a defendant first must show his or her attorney made

errors "so serious that counsel was not functioning as the 'counsel' guaranteed

                                                                          A-3274-18T1
                                        3
the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Counsel's

performance is deficient if it falls "below an objective standard of

reasonableness." Id. at 688.

      A defendant also must show counsel's "deficient performance prejudiced

the defense." Id. at 687. He or she must establish "there is a reasonable

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

proceeding would have been different." Id. at 694. "A reasonable probability

is a probability sufficient to undermine confidence in the outcome" of the

proceeding. Ibid.

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

hearing for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401

(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). A

defendant is entitled to an evidentiary hearing if he or she presents a prima facie

case supporting PCR, the court determines there are material issues of fact that

cannot be resolved based on the existing record, and the court finds that an

evidentiary hearing is required to resolve the claims presented. R. 3:22-10(b);

see also State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

      Having considered the PCR judge's findings and having reviewed the

transcript of defendant's testimony at his plea hearing, we are convinced


                                                                             A-3274-18T1
                                        4
defendant has not established a prima facie case of ineffective assistance of

counsel. Before we address the plea proceedings, we note—as the PCR judge

did—that where a defendant pleads guilty to a first-degree NERA offense, but

receives a second-degree sentence, the parole supervision period remains five

years. N.J.S.A. 2C:43-7.2(c). Therefore, defendant could not receive a shorter

period of parole supervision.

      Moreover, the transcript of the plea proceedings resolves any doubt that

defendant's attorney misled him, as noted in the following colloquy:

            THE COURT: Do you understand that because you are
            pleading guilty to a first degree robbery charge that
            there is a period of parole ineligibility of [eighty-five
            percent] of the sentence that applies to that charge?

            THE DEFENDANT: Yes.

                  ....

            THE COURT: Do you understand also that once you
            are released from custody that you will be subject to a
            period of parole supervision for five years following
            your release?

            THE DEFENDANT: Yes.

Defendant also testified he was satisfied with his counsel's advice and did not

need more time to speak with him.




                                                                        A-3274-18T1
                                       5
      Defendant was not entitled to an evidentiary hearing because he did not

demonstrate a prima facie case of ineffective assistance of counsel. The record

before us does not demonstrate that plea counsel committed any errors, let alone

ones which prejudiced the outcome in this case.

      Affirmed.




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