                                 NOT FOR PUBLICATION WITHOUT THE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-2066-18T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

DOUGLAS L. BATTLE,

     Defendant-Appellant.
_______________________

                    Submitted April 27, 2020 – Decided May 15, 2020

                    Before Judges Sumners and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Accusation No. 14-08-0379.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Anderson David Harkov, Designated
                    Counsel, on the brief).

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Elizabeth Marie Newton, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Douglas Battle appeals from a November 16, 2018 order

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

hearing. We affirm.

                                        I.

      On March 12, 2013, defendant was indicted for first-degree murder,

N.J.S.A. 2C:11-3(a)(2), second-degree possession of a firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b). Defendant subsequently pled guilty to one count

of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as charged in a superseding

accusation. Defendant also pled guilty to third-degree aggravated assault as

charged in a separate indictment, which is not the subject of this appeal. In

exchange for his guilty plea, the State dismissed the remaining charges in both

indictments and defendant was sentenced to an aggregate twenty-year custodial

sentence, with an eighty-five-percent period of parole ineligibility pursuant to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      Defendant appealed his sentence and we considered his arguments on our

excessive sentence oral argument calendar, see R. 2:9-11, and affirmed.

Defendant did not seek certification.




                                                                        A-2066-18T1
                                        2
      At his plea hearing, defendant admitted he was guilty of the charges and

stated that he entered the hallway of an apartment complex in Trenton late one

night with a firearm and shot Wilfredo Rivera, Jr. He admitted that he was aware

that firing his weapon at such close range would result in Mr. Rivera's death

and, when he shot his weapon at Mr. Rivera, he did not care "whether he lived

or died."

      In addition to providing that factual statement, defendant stated he

understood that he would be sentenced to a twenty-year term, subject to NERA,

and acknowledged the following comments by the court:

            Mr. Battle, by pleading guilty you're giving up certain
            guaranteed constitutional rights. That would include
            the right to have a jury determine your guilt or
            innocence, the right of being presumed innocent by the
            jury, the right to have the State prove your guilt beyond
            a reasonable doubt, the right to testify at trial or to
            remain silent, your silence cannot be used against you,
            a right of confronting State's witnesses and evidence
            against you, the right of bringing in your own witnesses
            and evidence in your defense.

      After further colloquy with defendant, the court accepted the negotiated

plea finding that defendant entered it "voluntarily, with knowledge of the

consequences."

      At sentencing, the court considered the arguments of counsel and

statements from family members of the victim, as well as defendant. After

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                                       3
finding aggravating factors three, six, and nine, see N.J.S.A. 2C:44-1(a)(3), (6)

and (9), and no mitigating factors, the court sentenced defendant consistent with

the plea agreement. 1

      Defendant filed a pro se PCR petition and certification which he

supplemented by appointed PCR counsel's brief.              Before the PCR court,

defendant maintained his counsel was ineffective for, among other reasons,

failing to: 1) challenge a witness' recantation and probable cause for the search

warrant of his telephone records, 2) file pretrial motions, and 3) adequately

prepare and confer with him prior to his plea.         In his August 17, 2017

certification, defendant further explained his ineffectiveness claims, and

proclaimed his innocence claiming he acted in self-defense.

      In PCR counsel's brief, defendant also claimed that his plea counsel failed

to conduct an adequate investigation and elicit a sufficient factual basis. PCR

counsel also argued that defendant's sentencing counsel was ineffective for

failing to advocate for mitigating factors at sentencing.




1
  Prior to sentencing, defendant advised the court in a written communication
not in the record that he believed his plea counsel was ineffective and requested
to withdraw his plea. Prior to sentencing, however, defendant stated on the
record that he no longer sought to withdraw his plea and requested that the court
proceed with sentencing.
                                                                          A-2066-18T1
                                        4
      After considering the submissions of the parties and hearing oral

arguments, Judge Thomas M. Brown denied defendant's petition in a

comprehensive October 22, 2018 oral decision and coincident order concluding

that defendant failed to establish a prima facie claim of ineffective assistance of

either his plea or sentencing counsel under the standard established in Strickland

v. Washington, 466 U.S. 668 (1984) and State v. Fritz, 105 N.J. 42 (1987).

      Judge Brown rejected defendant's claim that his counsel was ineffective

for allegedly failing to conduct an adequate investigation and interview

witnesses because defendant failed to "to assert the facts that would have been

revealed had his attorney conducted the investigation" and the facts defendant

asserted were "unsupported by any affidavits or certifications." He concluded

that defendant's "bald and conclusory assertions fail to identify credible

exculpatory facts that an investigation would have revealed" and thus, defendant

failed to make a prima facie showing of ineffective assistance of counsel.

      Regarding defendant's argument that his counsel was ineffective for

recommending a plea to first-degree aggravated manslaughter without an

adequate factual basis to sustain such a charge, Judge Brown explained that

defendant testified "he shot the victim . . . one time at close range[,]" that he

"understood the likely result would be death which did occur[,]" and admitted


                                                                           A-2066-18T1
                                        5
that he "did not care whether the victim lived or died when he shot him." He

also noted that the factual basis was not inadequate merely because the only

words defendant uttered were "yes" or "no." Citing State v. Campfield, 213 N.J.

218, 230 (2013) and State v. Sainz, 107 N.J. 283, 293 (1987), Judge Brown

stated that defendant "may either explicitly admit guilt . . . or may acknowledge

facts constituting the essential elements of the crime[,]" and here, defendant's

factual basis "encompassed the elements of the crime and clearly demonstrate[d]

an understanding of the nature of the charge to which he was pleading guilty[,]"

as required by Rule 3:9-2.

      Judge Brown further found that defendant could not establish that he

suffered any prejudice from his counsel's representation during the plea as

defendant "indicated he [was] satisfied" with his counsel during the plea

colloquy, defendant "fully completed, initialed and signed the plea form[,]" and

he "testified during the sentencing that trial counsel provide[d] effective

assistance of counsel."

      With respect to defendant's claim that his counsel failed to argue in

support of any mitigating factors, Judge Brown found that his sentencing

counsel "argued that [he] acted under provocation" in support of mitigating

factor three, argued that the victim "may have induced or facilitated the


                                                                         A-2066-18T1
                                       6
commission of defendant's conduct" in support of mitigating factor four, and

noted that defendant "was a young man" and "has a family" in support of

mitigating factor eleven. He concluded that defendant could not make a prima

facie case of ineffective assistance on this claim "simply because the sentencing

[c]ourt established that there were no mitigating factors to apply to the case."

      Finally, the court concluded that defendant failed to establish that he was

entitled to withdraw his plea under the four-part test detailed in State v. Slater,

198 N.J. 145 (2009).       The court also denied defendant's request for an

evidentiary hearing.

      On appeal, defendant limits his arguments to the following contentions:

            POINT I

            THE [PCR] COURT ERRED WHEN IT FAILED TO
            CONCLUDE THAT PLEA COUNSEL'S FAILURE
            TO PRODUCE A FACTUAL BASIS FROM WORDS
            ARTICULATED BY DEFENDANT ESTABLISHING
            HIS GUILT AND WAIVING ANY CLAIM OF SELF[-
            ]DEFENSE DEPRIVED DEFENDANT OF HIS
            CONSTITUTIONAL RIGHT TO THE EFFECTIVE
            ASSISTANCE OF COUNSEL.

            POINT II

            THE PCR COURT ERRED WHEN IT FAILED TO
            GRANT DEFENDANT A NEW SENTENCE
            HEARING AS A RESULT OF TRIAL COUNSEL'S
            FAILURE TO ARGUE IN FAVOR OF MITIGATING
            FACTORS.

                                                                           A-2066-18T1
                                        7
            POINT III

            THE PCR COURT ERRED WHEN IT FAILED TO
            GRANT DEFENDANT'S REQUEST FOR AN
            EVIDENTIARY HEARING BECAUSE THE PLEA
            AND        SENTENCING       TRANSCRIPTS
            ESTABLISHED A PRIMA FACIE CASE THAT
            PLEA COUNSEL FAILED TO ESTABLISH
            DEFENDANT WAIVED HIS RIGHT TO CLAIM
            SELF[-]DEFENSE AND SENTENCING COUNSEL
            FAILED TO ARGUE MITIGATING FACTORS. 2

      Having considered defendant's contentions in light of the record and the

applicable law, we affirm the denial of defendant's PCR petition substantially

for the reasons detailed in Judge Brown's thoughtful written opinion. We add

the following comments.

                                      II.

      Because defendant's PCR petition is predicated on his claim that his plea

and sentencing counsel were ineffective, he must satisfy the two-part test

pronounced in Strickland by demonstrating that "counsel's performance was

deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 58. The first prong



2
  We have reorganized and renumbered the points on appeal for the purposes of
our analysis.
                                                                       A-2066-18T1
                                      8
requires a showing that "counsel's representation fell below an objective

standard of reasonableness." Strickland, 466 U.S. at 688. It is the defendant's

burden to prove by a preponderance of the evidence that counsel's decisions

about trial strategy were not within the broad spectrum of competent legal

representation. See Fritz, 105 N.J. at 52.

      Under the second prong, a defendant must demonstrate that his counsel 's

errors prejudiced the defense to the extent that the defendant was deprived of a

fair and reliable trial outcome. Strickland, 466 U.S. at 687. To prove this

element, 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.

                                     III.

      In defendant's first point, he asserts his plea counsel was constitutionally

ineffective because he improperly "produced a factual basis made up of entirely

'yes' and 'no' answers" and thus was not an "admission in defendant's own

words." He also asserts that plea counsel failed to address defendant's assertions

of self-defense, despite information contained in the presentence report that

revealed witnesses "said the victim threatened to shoot defendant."             He

maintains that had counsel explained the claim of self-defense, he would have


                                                                          A-2066-18T1
                                        9
"been [in] a position to knowingly waive his self[-]defense claim as part of his

factual basis or to proceed to trial."

      In his second point, defendant maintains that sentencing counsel was

ineffective for failing to advocate for certain mitigating factors. Specifically,

defendant contends that while counsel did make a sentencing argument it was

"essentially an argument in a vacuum" as he never specifically referred to any

of the statutory mitigating factors prescribed in N.J.S.A. 2C:44-1(b) and

specifically those set forth in N.J.S.A. 2C:44-1(b)(3) (defendant acted under a

strong provocation), (4) (substantial grounds to excuse defendant's conduct), (5)

(the victim induced or facilitated the commission of the crime), (9) (defendant's

character and attitude indicated that he was unlikely to commit another offense),

and (11) (imprisonment will entail excessive hardship to him or his dependents),

and had counsel advocated appropriately, defendant would have received less

than the twenty-year NERA sentence. 3 We disagree with all these arguments.




3
   Defendant has not challenged the court's determination that he failed to
establish relief under Slater, 198 N.J. at 145, and accordingly any argument
related to that ruling is waived. See State v. Amboy Nat'l Bank, 447 N.J. Super.
142, 148 n.1 (App. Div. 2016) (noting an issue not briefed is deemed waived).
We have nevertheless considered the merits of defendant's Slater-based claims
and agree with Judge Brown that they are without merit.
                                                                         A-2066-18T1
                                         10
      The record fully supports Judge Brown's determination that defendant,

after admitting his guilt, provided an adequate factual basis for his plea, and that

the court fully explained to defendant that by accepting the negotiated plea he

was waiving the right to present "evidence in [his] defense." Further, counsel

was not ineffective in how defendant stated the factual basis for the aggravated

manslaughter charge.      In this regard, we note that leading questions are

permitted at a plea hearing to establish a factual basis for a plea. See Campfield,

213 N.J. at 231 ("judge's leading questions may be necessary to ensure an

adequate factual basis for the guilty plea"); State v. Smullen, 118 N.J. 408, 415

(1990) (a plea will be valid even if factual basis for it is a result of leading

questions).

      Moreover, the facts here bear no resemblance to those in State v. Urbina,

221 N.J. 509 (2015), principally relied upon by defendant, which held that

"before allowing a defendant to waive a claim of self-defense, we require 'a

thorough and searching inquiry' into 'his or her understanding of the nature of

the right being waived and the implications that flow from that choice." Id. at

528 (quoting State v. Handy, 215 N.J. 334, 362 (2013)). In that case, the

defendant stated during the plea colloquy that he pulled out his gun after the

victim and his cousin pulled out their guns. Id. at 529. The Urbina Court


                                                                            A-2066-18T1
                                        11
determined that after hearing defendant's statements, "the trial court should have

explored whether defendant was claiming he acted in self-defense . . . ensure[d]

that defendant truly understood the law of self-defense . . . [and] understood that

the State had the burden to disprove self-defense once asserted." Ibid.

      The Urbina Court, however, also held that the trial court must inquire

whether defendant is factually asserting self-defense "if a suggestion of self-

defense is raised in the plea colloquy." Id. at 528. Here, defendant did not raise

his self-defense claim before pleading guilty, and there were no indications

during the plea colloquy to suggest that defendant was acting in self-defense

when he shot the victim.

      Significantly, defendant's statements before the plea and sentencing

courts, as well as his own PCR submissions, established the legal insufficiency

of any self-defense claim.4 At the plea hearing, defendant admitted he was guilty

and acknowledged that he walked into the apartment building with a gun, he

understood firing his gun at close range would likely result in the victim's death,

he shot the victim, and he did not care whether the victim lived or died.


4
   We note that in support of his argument regarding the insufficiency of his
factual basis, defendant relies on the presentence report to support his belated
argument that he acted in self-defense. Nothing in that report, however, supports
the claim that defendant was in imminent danger or that the victim possessed a
weapon.
                                                                            A-2066-18T1
                                       12
      At the sentencing hearing, defendant further admitted to leaving the scene

after his initial interaction with defendant and returned with a gun that he

admitted discharging. Similarly, in PCR counsel's brief, defendant refers to that

same portion of his sentencing hearing transcript when he admitted he "went to

go get a gun" and "came back," but emphasizes that he "armed himself only after

the victim threatened to kill him." Under these circumstances, a claim of self-

defense was not cognizable. See State v. Kelly, 97 N.J. 178, 197 (1984) ("[S]elf-

defense is justifiable 'when the actor reasonably believes that such force is

immediately necessary for the purpose of protecting himself against the use of

unlawful force by such other person on the present occasion.'" (quoting N.J.S.A.

2C:3-4(a))); see also State v. Rodriguez, 195 N.J. 165, 175 (2008) ("[I]f a person

'knows that he can avoid the necessity of using [deadly] force with complete

safety by retreating,' he must do so or lose self-defense as a justification for his

conduct." (quoting N.J.S.A. 2C:3-4(b)(2)(b)) (alteration in original)).

      We also concur with Judge Brown that defendant's sentencing counsel was

not ineffective for failing to specifically enumerate the statutory mitigating

factors upon which he relied. Sentencing counsel advocated for leniency and

relied on certain mitigating factors related to the crime and defendant's

background stating:


                                                                            A-2066-18T1
                                        13
            My client has a child who is probably going to be an
            adult before he gets out. He was trying to leave that
            particular lifestyle. He recognized that participation in
            gangs was a no-brainer.        It wasn’t getting him
            anywhere. And, as you described it, it really was not
            benefitting anymore the way that the gang situation has
            deteriorated.

            Be that as it may, he acted, he brought a gun, the gun
            went off and a man died. And he clearly has some
            responsibility – a lot of responsibility as to what
            happened that evening. Perhaps not alone, but he’s the
            one that’s here, and he’s the one that did the shooting.
            All I can ask, Your Honor, is to recognize the fact that
            he was a young man at the time and that there was to
            some extent some provocation.

            And certainly there was influence of many others who
            had preceded him. I think we can consider his family
            situation. There are a lot of things that influenced this
            young man the wrong way, and he just didn’t have the
            opportunity to – the time to get out of it. I would ask
            Your Honor to be lenient.

      Defendant's sentencing counsel was not ineffective as it is clear from the

sentencing transcript that the court here comprehensively considered the

aggravating and mitigating factors, finding certain aggravating factors and no

mitigating factors.

      We also agree with Judge Brown that defendant's petition failed to

establish that he was prejudiced by his plea counsel's alleged ineffectiveness.

Had defendant not accepted the plea, he faced going to trial on murder and


                                                                        A-2066-18T1
                                      14
weapons offenses, exposing himself to a potential life sentence with a period of

parole ineligibility of no less than thirty years. See N.J.S.A. 2C:11-3(a)(2).

Given that the State's offer significantly reduced defendant's substantial

sentencing exposure and period of parole ineligibility, defendant failed to

establish that it would have been rational to reject the plea offer and that he

probably would have done so. State v. Maldon, 422 N.J. Super. 475, 486 (App.

Div. 2011).5 Similarly, defendant has failed to establish any prejudice related

to his counsel's performance at sentencing. Finally, because defendant failed to

establish a prima facie case of ineffective assistance, an evidentiary hearing was

not required. State v. Preciose, 129 N.J. 451, 462 (1992).




5
   Citing State v. Mitchell, 126 N.J. 565, 577 (1992) and State v. D.D.M., 140
N.J. 83, 95 (1995), the State also maintains that defendant's claims related to his
purported deficient factual basis are not "one of constitutional issue" and
therefore not cognizable for PCR under Rule 3:22-2, particularly where, as here,
defendant did not also proclaim his innocence. See Mitchell, 126 N.J. at 577;
but see Urbina, 221 N.J. at 527 (recognizing that "[c]hallenges to the sufficiency
of the factual basis for a guilty plea" may be brought "on post-conviction
relief"). Because we find no substantive merit to defendant's PCR claims, we
need not address this argument. For similar reasons, we do not resolve the
State's claim that defendant was obligated to raise any error related to his factual
basis on direct appeal and, having failed to do so, his petition is procedurally
barred by Rule 3:22-4.
                                                                            A-2066-18T1
                                        15
      To the extent we have not addressed any of defendant's arguments it is

because we have concluded that they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                       A-2066-18T1
                                         16
