                                NOT FOR PUBLICATION WITHOUT THE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-4708-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MATTHEW A. MENDES,

     Defendant-Appellant.
__________________________

                    Submitted October 2, 2019 – Decided October 18, 2019

                    Before Judges Yannotti and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 14-01-0007.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Anderson David Harkov, 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 Matthew Mendes, who pled guilty in 2014 to fourth-degree

stalking, appeals from the May 14, 2018 Law Division order denying his petition

for post-conviction relief (PCR). We affirm.

                                          I

        The record establishes the following facts and procedural history. On

October 20, 2013, D.D.,1 an officer with the Lakewood Police Department,

observed defendant standing at the end of his driveway facing his home and then

walking into a nearby wooded area. The next day, D.D. reported the incident to

the Manchester Police.       He told the police that in June 2013, he arrested

defendant for stalking an employee at a local behavioral health center, where

defendant previously received treatment.

        On October 26, 2013, Manchester Police responded to the area

surrounding Manchester Middle School to investigate the report of a suspicious

person. The officers observed defendant, who matched a recently issued Police

Officer Safety Flyer, walking through a parking lot. After a brief inquiry, the

officers released defendant. Moments later, D.D. flagged the officers down and

told them that when he arrived home earlier, he observed defendant "standing

on the sidewalk staring into his [front] glass door."         D.D. further advised


1
    We refer to the victim by his initials to protect his privacy.
                                                                           A-4708-17T3
                                           2
defendant "has several mental health disorders," and expressed concern that

defendant posed a threat to his family's safety. D.D. also reported that defendant

was found guilty, in early October, in the case where D.D. arrested defendant.

         The officers then spoke to D.D.'s neighbor, who said he saw defendant

walk past D.D.'s home on three separate occasions earlier that day, and on two

occasions earlier in the week. The neighbor described defendant's actions as

"alarming."

         Based on the information provided by D.D. and his neighbor, the police

filed stalking and harassment charges against defendant, arresting him the next

day. On January 7, 2014, an Ocean County Grand Jury returned an indictment

charging defendant with fourth-degree stalking, in violation of N.J.S.A. 2C:12-

10(b).

         On February 14, 2014, defendant appeared with counsel for arraignment.

At that time, the State extended a plea offer of probation, conditioned on

defendant serving 180 days in the county jail, in exchange for defendant

pleading guilty to fourth-degree stalking. After reviewing the plea agreement

with counsel, defendant appeared in court later that afternoon.        Defendant

confirmed he reviewed the plea agreement with counsel and that he understood

he was pleading guilty to stalking. He claimed he could read only "[a] little";


                                                                          A-4708-17T3
                                        3
when asked how far he went in school, he responded, "Like fourth grade." 2

Nevertheless, defendant confirmed that his counsel helped him review the plea

form by reading it to him and answering all of his questions.

      While defendant contended he did not know where Officer D.D. lived, he

acknowledged he walked by his house almost every day. The judge then asked

defendant, "And [Officer D.D.] lived in the house [of] the sidewalk you were

walking in front of?"     Defendant replied, "Yeah, yeah."        Defendant also

acknowledged stopping at "the stop sign at Beacon Street," which he admitted

is "right next to [D.D.'s] house." Defendant further acknowledged he understood

the plea agreement, which included a no contact order. The judge then accepted

defendant's guilty plea to one count of fourth-degree stalking.

      On April 25, 2014, the same judge sentenced defendant to a two-year term

of probation. He also sentenced him to 180 days in the Ocean County jail, with

credit for time served, and ordered that defendant have no contact with the D.D.

or his family.

      On August 4, 2014, police executed a warrant for defendant's arrest for

violating his probation. The next day, assigned counsel filed a notice of appeal



2
  At a later hearing on the PCR petition under review, defendant admitted he is
a high school graduate.
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                                       4
of defendant's April 25, 2014 conviction, and later obtained leave to file as

within time. On September 12, 2014, the Law Division negatively terminated

defendant's probation. On March 2, 2015, defendant filed a notice of withdrawal

of his appeal and we dismissed the appeal the next day.

      On December 19, 2016, defendant filed a pro se petition for PCR, alleging

he "was setup . . ." Through assigned counsel, defendant later filed an amended

PCR petition, alleging his plea counsel provided ineffective assistance of

counsel because he "failed to investigate [his] defense" and recommended he

plead guilty "when there was no factual basis for the guilty plea." He also

alleged his appellate counsel provided ineffective assistance when he failed "to

raise the issue" that his "factual basis was insufficient to support the fourth -

degree stalking conviction."

      On August 22, 2017, the same judge who accepted defendant's plea and

sentenced him, heard oral argument on defendant's PCR petition. Defense

counsel argued the transcript of the plea hearing "shows there was no factual

basis" for stalking since defendant "denied knowing where [D.D.] lived ."

Defense counsel further argued that "because there's not a factual basis for the

charge . . . this [c]ourt is required to grant . . . [PCR]."




                                                                         A-4708-17T3
                                           5
       The PCR judge rejected these arguments, explaining his reasons in a nine-

page written opinion.     The judge found defendant received an "extremely

favorable sentence of probation with the only custodial condition being time

already served, which was 180 days . . . . when defendant could have served up

to eighteen months in state prison." Based on the favorable sentence plea

counsel obtained for defendant, the judge concluded defendant failed to satisfy

either Strickland prong.3 He also noted defendant failed to assert he would have

gone to trial instead of pleading guilty.

       The judge recounted what occurred at defendant's plea hearing:

             [P]rior to pleading guilty, [defendant] reviewed the
             discovery with [plea] counsel and acknowledged that
             fact on the record. The discovery included the police
             reports in which [D.D.'s] neighbor . . . reported that
             [defendant] had passed by D.D.'s house on three
             separate occasions and that his behaviors were
             'alarming.'      [Defendant,] having reviewed this
             discovery with his attorney, stated repeatedly under
             oath that he was pleading guilty to the offense of
             stalking and that he was doing so voluntarily.
             [Defendant] attested on the record that he had went over
             the plea form with his attorney, who helped him read it,
             and that his attorney answered all of his questions.

       In addition to finding that defendant provided a factual basis for his guilty

plea, that the plea was voluntary, and that defendant understood the


3
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                            A-4708-17T3
                                            6
consequences of his guilty plea, the judge also analyzed the four factors for

withdrawing a guilty plea set forth in State v. Slater, 198 N.J. 145, 156 (2009),

and found each factor did not favor allowing defendant to withdraw his guilty

plea. The judge therefore denied defendant's petition without an evidentiary

hearing.

      This appeal followed, with defendant presenting the following arguments:

            POINT ONE          THE FAILURE OF TRIAL COUNSEL,
                               TO ASSURE THERE WAS A FACTUAL
                               BASIS FOR THE CRIME DEFENDANT
                               WAS PLEADING GUILTY TO, DESPITE
                               THE FACT COUNSEL HIMSELF
                               ATTEMPTED TO ELICIT THE
                               FACTUAL BASIS, DEPRIVED
                               DEFENDANT OF HIS
                               CONSTITUTIONAL RIGHT TO THE
                               EFFECTIVE ASSISTANCE OF
                               COUNSEL.

            POINT TWO          THE PCR COURT ERRED WHEN IT
                               FAILED [TO] CONDUCT AN
                               EVIDENTIARY HEARING ON THE
                               INEFFECTIVE ASSISTANCE OF
                               COUNSEL ISSUE AND THE LACK OF A
                               FACTUAL BASIS.

                                       II

      To show ineffective assistance of counsel, a defendant must meet the two-

pronged test set forth in Strickland, 466 U.S. at 668, adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42 (1987). First, a "defendant must demonstrate

                                                                         A-4708-17T3
                                       7
[] that counsel's performance was deficient." State v. Parker, 212 N.J. 269, 279

(2012) (citing Strickland, 466 U.S. at 687). Second, "a defendant must also

establish that the ineffectiveness of his attorney prejudiced his defense." Ibid.

When the claim of ineffective assistance relates to a guilty plea, a defendant

must satisfy a modified Strickland standard:

               When a guilty plea is part of the equation, . . . 'a
               defendant must show that (i) counsel's assistance was
               not "within the range of competence demanded of
               attorneys in criminal cases"; and (ii) "that there is a
               reasonable probability that, but for counsel's errors,
               [the defendant] would not have pled guilty and would
               have insisted on going to trial."'

               [State v. Nunez-Valdez, 200 N.J. 129, 139 (2009)
               (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)
               (citations omitted) (second alteration in original)).]

Furthermore, to obtain relief under the second prong, "a petitioner must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372

(2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)).

         Bald assertions of ineffective assistance are not enough.          State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A petitioner "must

allege     facts   sufficient   to   demonstrate   counsel's   alleged   substandard




                                                                             A-4708-17T3
                                           8
performance[,]" and the court must view the facts alleged in the light most

favorable to the petitioner. Ibid.

      A person is guilty of stalking if he or she "purposefully or knowingly

engages in a course of conduct directed at a specific person that would cause a

reasonable person to fear for his safety or the safety of a third person or suffer

some other emotional distress." N.J.S.A. 2C:12-10(b). The term "[c]ourse of

conduct" includes "repeatedly maintaining a visual or physical proximity to a

person; . . . by any action, method, device, or means . . ." N.J.S.A. 2C:12-

10(a)(1). The term "repeatedly" means "on two or more occasions." Ibid.

      A judge must determine that there is "a factual basis for the [guilty] plea

. . ." R. 3:9-2. The factual basis for the plea can be established in either of two

ways: "defendant may either explicitly admit guilt with respect to the elements"

or may acknowledge underlying "facts constituting the essential elements of the

crime." State v. Campfield, 213 N.J. 218, 231 (2013) (citation omitted); see

State v. Gregory, 220 N.J. 413, 419-20 (2015).

      While defendant contended at the plea hearing he did not know where

Officer D.D. lived, he acknowledged he walked by D.D.'s house almost every

day. The judge then asked defendant, "And [D.D.] lived in the house [of] the

sidewalk you were walking in front of?" Defendant replied, "Yeah, yeah." The


                                                                           A-4708-17T3
                                        9
judge found this admission, together with defendant's acknowledgment that he

and his attorney together reviewed the discovery, which included police reports

documenting defendant's stalking behavior, provided a sufficient factual basis

for accepting the plea.

      After defendant entered his plea, he wrote two letters to the court and two

letters to plea counsel. In the letters, defendant registered complaints about his

plea agreement providing for probation, rather than pretrial intervention; in

addition, he expressed concerns about his sentencing date and his bail. In none

of the letters did defendant assert a claim of innocence or a claim that he did not

intend to enter a guilty plea to the stalking charge.

      We find no basis to disturb the PCR judge's decision to deny defendant's

petition. Defendant failed to establish either prong of Strickland – he received

a favorable plea agreement relative to his overall exposure, and otherwise failed

to establish he suffered any prejudice.

      The PCR judge correctly found defendant failed to make a prima facie

showing that his plea counsel prejudiced his defense. Considering defendant's

history with D.D. – a police officer who recently arrested him – and the

observations of defendant in front D.D.'s house witnessed by D.D. and his

neighbor, defendant failed to present any rational argument for rejecting the


                                                                           A-4708-17T3
                                       10
State's plea offer. See State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div.

2014) (quoting Padilla, 559 U.S. at 372). Nor did defendant assert such a claim

in his PCR petition or supporting certification.

         We also reject defendant's contention that the PCR judge erred by failing

to conduct an evidentiary hearing. A defendant is entitled to an evidentiary

hearing only when he or she "'has presented a prima facie [case] in support of

[PCR,]'" meaning that "the defendant must demonstrate a reasonable likelihood

that his or her claim will ultimately succeed on the merits." State v. Marshall,

148 N.J. 89, 158 (first alteration in original) (quoting State v. Preciose, 129 N.J.

451, 462-63 (1992)). A hearing was not required here because defendant failed

to establish a prima facie case for PCR, there were no material issues of disputed

fact that could not be resolved by reference to the existing record, and an

evidentiary hearing was not required to resolve defendant's claims. R. 3:22-

10(b).

         Affirmed.




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                                        11
