                        NOT FOR PUBLICATION WITHOUT THE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-4205-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CELSO LAREDO MADRIGAL, a/k/a
CELSO MADRIGAL-LAREDO,

     Defendant-Appellant.
___________________________________

              Submitted October 10, 2017 – Decided June 26, 2018

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 10-
              06-1210.

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

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for respondent (Samuel J. Marzarella,
              Chief Appellate Attorney, of counsel and on
              the brief).

PER CURIAM

        Defendant appeals from an April 6, 2016 order, denying his

petition for post-conviction relief (PCR) without an evidentiary
hearing.    Defendant argues his attorney pursued a "bizarre" trial

strategy; did not communicate with him about the strategy before

trial; and dissuaded him from accepting the State's plea offer in

favor of pursuing the defense.           Defendant contends the trial court

should have ordered an evidentiary hearing.            We reject defendant's

arguments and affirm.

      A jury found defendant guilty of third-degree possession of

cocaine, and first-degree possession with intent to distribute it.

N.J.S.A.    2C:35-10(a)(1),        -5(a)(1),     -5(b)(1).        After    merger,

defendant was sentenced to a fifteen-year term with a seven-and-

a-half-year     parole    bar.     We    detailed   the   facts    in     State   v.

Madrigal, No. A-2713-11 (App. Div. July 21, 2014) (slip op. at 2-

4).

      Relevant to this appeal is defense counsel's guns-instead-

of-drugs trial strategy. As we discussed in our previous decision,

defense counsel advanced a strategy that cast doubt on the State's

proofs   that   defendant     sold   a    confidential    informant       cocaine.

Instead,    counsel      argued,   and    defendant    testified,       that      the

informant gave him cash to purchase guns, a task defendant never

completed.      Notably, defendant was not charged with gun-related

offenses.    Thus, if the jury accepted the defense theory, it would

have resulted in an acquittal.               The defense strategy was raised

in concert with an entrapment defense, but the trial court declined

                                         2                                 A-4205-15T4
to charge the jury on the latter, finding the evidence did not

support it.

     We   declined   to   consider       on   direct   appeal    defendant's

contention that the guns-instead-of-drugs defense was, on its

face, ineffective assistance of counsel.         Id. at 7.      We noted that

the evidence was overwhelming that defendant sold almost ten ounces

of cocaine to a confidential informant.1          Id. at 6.      The defense

strategy provided an alternative explanation for the evidence

presented.    We noted that defendant offered no evidence regarding

an alternative defense     that may have been available, or his

consultations with counsel.    Id. at 7.        Defendant rejected a plea

offer of a ten-year-term with a thirty-month parole bar, although

by that time, he had already served almost two years.                   Ibid.

However, an immigration detainer was lodged against him.              Ibid.

     In denying defendant's petition, Judge James M. Blaney — who

did not preside at the trial — found that defendant failed to

establish a prima facie claim of ineffective assistance of counsel.

Applying the first prong of the Strickland test, see Strickland

v. Washington, 466 U.S. 668, 687 (1984), the judge found defendant



1
 The three transactions were videotaped. Although the recordings
did not show the drugs or money exchanged, they depicted defendant
and the informant engage in conversations consistent with the
exchange or sale of something.     The informant testified, along
with the officers who supervised him.

                                     3                                A-4205-15T4
failed to establish his attorney was deficient in raising the

guns-instead-of-drugs defense.           Judge Blaney explained that trial

counsel   engaged    in    a   "legitimate,   albeit   unsuccessful,    trial

strategy to attack the credibility of the confidential informant."

He also found, in view of the evidence the State presented, that

defendant failed to establish it was reasonably probable the result

would have been different had the defense pursued a different

strategy.   See ibid. (discussing second prong of test).              Lastly,

quoting State v. Marshall, 148 N.J. 89, 158 (1997), the court

denied an evidentiary hearing, concluding it would "not aid the

court's analysis . . . ."

     On appeal, defendant raises one point for our consideration:

                POINT ONE

                MR. MADRIGAL IS ENTITLED TO AN
                EVIDENTIARY HEARING ON HIS CLAIM
                THAT    HIS    ATTORNEY    RENDERED
                INEFFECTIVE ASSISTANCE OF COUNSEL.

     We affirm, substantially for the reasons expressed by Judge

Blaney in his cogent written opinion.           We add the following brief

comments.

     We   declined    to       reach   defendant's   claim   of   ineffective

assistance of counsel on direct appeal because the defense appeared

plausible and strategic, and defendant presented no competent

evidence of his consultations with counsel, or any alternative


                                         4                            A-4205-15T4
defenses he may have considered in the face of the compelling case

against him.         Defendant still has provided no competent evidence

of his consultations with counsel, or the alternative strategy he

would have pursued. Nor is there any competent evidence to support

defendant's      claims      that      his       attorney     did   not     adequately

communicate with him, and steered him to reject the plea offer by

telling him his case was "easy."

      Defendant's pro se petition says nothing about these claims.

Although defendant's counseled brief includes assertions on these

topics, they lack any verification from defendant as to their

truth.      On this basis alone, defendant failed to present any

evidence to support PCR, see R. 3:22-8 (requiring a verified

petition in support of PCR), let alone a prima facie case that

might warrant an evidentiary hearing, see R. 3:22-10(b) (stating

a   court     should    grant     an   evidentiary       hearing    only    "upon   the

establishment of a prima facie case in support of" PCR, where "an

evidentiary      hearing     is    necessary       to    resolve    the    claims   for

relief").

      In any event, defendant's claims lack merit.                         Defendant's

claim    he    was     not   consulted       about      the   guns-instead-of-drugs

strategy is belied by his testimony in support of it. Furthermore,

defense counsel referred to the strategy in defendant's presence

in court, when discussing defendant's plan to testify. Defendant's

                                             5                                 A-4205-15T4
contention about plea offers is likewise belied by the record.          At

a pre-trial hearing, defense counsel stated he reviewed the plea

offer with defendant numerous times, and advised defendant to

accept it, because the case would be "difficult" to try. Defendant

acknowledged those conversations, but was steadfast in his desire

to go to trial.2

     Instead    of   the   guns-instead-of-drugs   strategy,   defendant

argues his attorney should have focused on reasonable doubt, and

the fact that the drugs and currency were not visible on the

videotape.     Even if that were a preferable strategy in hindsight

— certainly, it could not have produced a worse result — trial

counsel was not deficient in pursuing a strategy that provided an

alternative explanation for what transpired between defendant and

the informant. "A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight . . . ."         Strickland, 466 U.S. at 689.    We are also

unpersuaded that it was reasonably probable that an acquittal

would have resulted from the trial strategy defendant now endorses.



2
  Inasmuch as an immigration detainer was already lodged against
him, perhaps, defendant was motivated to go to trial, however
unlikely an acquittal might have been, to avoid removal, rather
than plead guilty and face the near certainty of that outcome.
See Lee v. United States, ___ U.S. ___, 137 S. Ct. 1958, 1968-69
(2017) (stating that it is not "irrational" for a defendant facing
deportation to reject a plea offer and take a chance at trial).

                                    6                            A-4205-15T4
Affirmed.




            7   A-4205-15T4
