                                NOT FOR PUBLICATION WITHOUT THE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-3682-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

URIE RIDGEWAY,

     Defendant-Appellant.
_____________________________

                    Submitted February 5, 2020 – Decided March 11, 2020

                    Before Judges Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 15-12-
                    1315.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel, on
                    the brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Alexis R. Agre, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Urie Ridgeway appeals from the September 13, 2018 Law

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

evidentiary hearing. We affirm.

      We glean these facts from the record. Along with his uncle, co-defendant

Willie Hymon, defendant was charged in a ten-count indictment with first-

degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); first-degree kidnapping,

N.J.S.A. 2C:13-1(b)(1) (count two); second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1) (count three); second-degree burglary, N.J.S.A. 2C:18-2(a)(1)

(count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count five);

third-degree theft, N.J.S.A. 2C:20-3(a) (count six); third-degree criminal

restraint, N.J.S.A. 2C:13-2(a) (count seven); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2) (count eight); third-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(d) (count nine); and fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count ten). The charges

stemmed from a home invasion robbery, during which the sixty-four-year-old

victim was bound, terrorized, tortured, and threatened with a deadly weapon.

      On July 27, 2016, defendant entered a negotiated guilty plea to count one,

as amended to reflect that the robbery was committed "[w]hile armed with a




                                                                         A-3682-18T2
                                       2
deadly weapon, to wit: [a] blunt object." 1      See N.J.S.A. 2C:15-1(b).      The

prosecutor explained that "the amendment [was] appropriate under the [c]ourt

[r]ules" because it was "consistent with what was presented to the grand jury

and . . . consistent with the discovery . . . provided to defense counsel, so there

[was] no surprise." See State v. Dorn, 233 N.J. 81, 96 (2018) ("[T]he analysis

as to whether an indictment was sufficient and whether an amendment under

Rule 3:7-4 was appropriate hinges upon whether the defendant was provided

with adequate notice of the charges and whether an amendment would prejudice

defendant in the formulation of a defense."). When questioned by the trial court,

defense counsel responded he had no objection to the amendment as part of the

plea agreement, which also included the prosecutor's agreement to move the

dismissal of the remaining counts, and to recommend a twelve-year sentence,

subject to an eighty-five percent period of parole ineligibility pursuant to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      During the plea allocution, defendant admitted that he and co-defendant

Hymon robbed the victim on February 8, 2014, in Medford Township, by

committing a theft while armed with a deadly weapon. Specifically, while co-



1
  The original charge alleged that the robbery was committed while "inflict[ing]
bodily injury or us[ing] force upon another." See N.J.S.A. 2C:15-1(a)(1).
                                                                           A-3682-18T2
                                        3
defendant Hymon was armed with a blunt object, they entered the victim's home,

and stole items from the house. Among the items stolen, defendant admitted

stealing the victim's cell phone. After ensuring that the plea conformed with the

requirements of Rule 3:9-2, and that the factual basis sufficed to establish

accomplice liability, see N.J.S.A. 2C:2-6, the judge accepted defendant's guilty

plea.

        At the sentencing hearing on October 6, 2016, defense counsel argued

there were "mitigating factors that the [c]ourt should consider." Defense counsel

pointed to defendant's agreement to pay "restitution . . . to the extent t hat

[defendant] has the ability to pay," see N.J.S.A. 2C:44-1(b)(6), and to

defendant's lifetime struggle with "drug addiction . . . since . . . age [twenty -

two]." Defense counsel elaborated that defendant's use of "cocaine and alcohol

. . . has contributed to his departures from living a law-abiding life" and

prevented him from "being the productive citizen" he hoped to be. Defense

counsel added that, in fact, defendant "was under the influence of cocaine" when

the crime occurred but "because of the nature of the offense . . . he was not

eligible for drug court."     See N.J.S.A. 2C:44-1(b)(4).       Additionally, in

mitigation, defense counsel asserted that defendant believed the house he was




                                                                          A-3682-18T2
                                        4
entering with his co-defendant "was actually an abandoned house," but that

turned out not to be the case. See N.J.S.A. 2C:44-1(b)(2).

      The judge sentenced defendant in accordance with the plea agreement.

Notwithstanding defense counsel's arguments, the judge found "no mitigating

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

("[t]he risk that the defendant will commit another offense"); N.J.S.A. 2C:44 -

1(a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness

of the offenses of which he has been convicted"); N.J.S.A. 2C:44-1(a)(9) ("[t]he

need for deterring the defendant and others from violating the law").             In

"conclud[ing] that the aggravating factors clearly and substantially outweigh[ed]

the mitigating factors," the judge explained that while he "sympathize[d] with"

and had "compassion towards" "somebody [like defendant] who has a drug

addiction," his "compassion . . . and . . . sympathy end[ed] when the drug-

addicted person's conduct turn[ed] to violence, as it did here."

      On June 5, 2017, we heard defendant's challenge to his sentence on the

sentence only argument calendar. See R. 2:9-11. We affirmed the sentence but

remanded the matter "to the trial court for an amended judgment of conviction

to reflect one . . . [additional] day of jail credit." On September 28, 2017, the

Supreme Court denied defendant's petition for certification. State v. Ridgeway,


                                                                           A-3682-18T2
                                        5
230 N.J. 610 (2017). Shortly thereafter, on October 27, 2017, defendant filed

the PCR petition that is the subject of this appeal, asserting ineffective assistance

of counsel (IAC).

      In his supporting pro se brief, defendant alleged that his plea counsel

pressured him into pleading guilty, "failed to communicate with [him]

throughout the plea process," failed to provide him with "the complete

discovery," "failed to investigate" the case, failed to file any "motions to

suppress . . . evidence" or dismiss charges, and gave "minimal argument at

sentencing." He asserted he pled guilty because "he feared the consequences of

going to trial" with his attorney representing him. Defendant also alleged that

his appellate counsel was ineffective by failing to raise several arguments on

appeal that "may" have resulted in "a lesser sentence." In his counseled brief,

defendant alleged his attorney was ineffective by failing to file a motion to

withdraw his guilty plea based on an inadequate factual basis.

      During oral argument, defendant relied on the arguments contained in both

briefs.   However, rather than seeking "a new trial" or "a new sentencing

hearing," defendant specified that "the relief [he was] seeking" was limited to

"a reduction in the custodial sentence." Defendant argued that had plea "counsel

fulfilled all his duties without any errors," the court would have sentenced him


                                                                             A-3682-18T2
                                         6
to "a ten-year sentence," subject to NERA. The State responded that there was

no basis to reduce defendant's sentence because "it was a negotiated plea," and

the sentence was reasonable given the serious charges defendant faced "that

carried a very significant amount of exposure." The State also pointed out that

his co-defendant was convicted following a jury trial, during which "the victim

testified at length," and the co-defendant subsequently received a thirty-year

NERA sentence.

      Following oral argument, the PCR court denied defendant's petition. In a

written decision, the judge reviewed the factual background and procedural

history of the case, applied the applicable legal principles, and concluded

defendant failed to establish a prima facie case of IAC.         The judge found

defendant failed to show that either counsel's performance fell below the

objective standard of reasonableness set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105

N.J. 42, 49-53 (1987), or that the outcome would have been different as required

under the second prong of the Strickland/Fritz test. Additionally, in rejecting

defendant's request for an evidentiary hearing, the judge concluded defendant

failed to present any issues that could not be resolved by reference to the existing

record.


                                                                            A-3682-18T2
                                         7
      Specifically, the judge determined defendant's attorney "acted in an

objectively reasonable manner when he negotiated [defendant's] plea" because

defendant was facing "four charges of first[-] or second-degree crimes" and

defendant's "potential custodial exposure was vastly greater than his current

twelve-year term of incarceration." The judge pointed out that during the plea

colloquy, defendant acknowledged that he was entering the plea voluntarily, that

no one had pressured him into pleading guilty, that he understood the charge he

was pleading guilty to, that he understood the consequences of his plea, that he

had discussed the matter with his attorney, and that he was satisfied with his

attorney's services and advice.

      Further, the judge determined that during the plea hearing, plea "counsel

elicited a factual basis that satisfied each element of [N.J.S.A.] 2C:15-1(a)"

under "an accomplice liability theory" because "[t]he elicited factual basis"

demonstrated that defendant and co-defendant Hymon "both entered the victim's

home without consent," and "Hymon threatened the victim's life" with "a blunt

object" while "[defendant] stole [the victim's] phone." Additionally, the judge

explained that "[e]ven if [he] . . . accept[ed] defendant's argument that [his




                                                                        A-3682-18T2
                                       8
attorney's] failure to file a Slater[2] motion [met] the first Strickland prong,"

defendant provided no showing that "he would have been successful in a

[m]otion to [w]ithdraw [his] [g]uilty [p]lea" "to satisfy the second [Strickland]

prong," because defendant "fail[ed] to raise a colorable claim of innocence," as

required under Slater.3

      On appeal, defendant raises the following point for our consideration:

            POINT ONE – DEFENDANT'S PLEA COUNSEL
            PROVIDED      HIM    WITH    INEFFECTIVE
            ASSISTANCE BY PERMITTING HIM TO ENTER A
            GUILTY PLEA WITHOUT A PROPER FACTUAL
            BASIS, FAILING TO MOVE TO WITHDRAW THE
            PLEA,     FAILING     TO    ADEQUATELY
            COMMUNICATE WITH DEFENDANT AND
            INVESTIGATE THE CASE AND FAILING TO
            MAKE     AN   EFFECTIVE   ARGUMENT    IN
            MITIGATION OF SENTENCE.

                   A.   THE   PREVAILING   LEGAL
                   PRINCIPLES REGARDING CLAIMS
                   FOR INEFFECTIVE ASSISTANCE OF
                   COUNSEL, EVIDENTIARY HEARINGS

2
  See State v. Slater, 198 N.J. 145, 157-58 (2009) (establishing four factors trial
courts must "consider and balance . . . in evaluating motions to withdraw a guilty
plea," namely, "(1) whether the defendant has asserted a colorable claim of
innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused.").
3
  Defendant correctly points out that, contrary to the judge's analysis, "when the
issue is solely whether an adequate factual basis supports a guilty plea, a Slater
analysis is unnecessary." State v. Tate, 220 N.J. 393, 404 (2015).
                                                                           A-3682-18T2
                                        9
                   AND   PETITIONS    FOR               POST-
                   CONVICTION RELIEF.

                   B.    TRIAL    COUNSEL    WAS
                   INEFFECTIVE   FOR   PERMITTING
                   DEFENDANT TO PLEAD GUILTY TO A
                   FIRST[-]DEGREE CRIME WITHOUT A
                   FACTUAL BASIS, AND FOR FAILING
                   TO MOVE TO WITHDRAW THE
                   GUILTY PLEA.

                   C. FAILURE TO            COMMUNICATE,
                   INVESTIGATE              AND    CALL
                   WITNESSES.

                   D. COUNSEL'S PERFORMANCE AT
                   SENTENCING.

      Defendant asserts the judge erred by denying "[his] [p]etition without

affording him an evidentiary hearing." Merely raising a claim for PCR does not

entitle a defendant to relief or an evidentiary hearing. See Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant evidentiary

hearings only if the defendant has presented a prima facie claim of IAC, material

issues of disputed fact lie outside the record, and resolution of those issues

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).

A PCR court deciding whether to grant an evidentiary hearing "should view the

facts in the light most favorable to a defendant." State v. Preciose, 129 N.J. 451,

463 (1992). However, "[a] court shall not grant an evidentiary hearing" if "the


                                                                           A-3682-18T2
                                       10
defendant's allegations are too vague, conclusory or speculative."         R. 3:22-

10(e)(2). Indeed, the defendant "must do more than make bald assertions that

he was denied the effective assistance of counsel. He must allege facts sufficient

to demonstrate counsel's alleged substandard performance." Cummings, 321

N.J. Super. at 170.

      In turn, we review under the abuse of discretion standard the PCR court's

determination to proceed without an evidentiary hearing. State v. Marshall, 148

N.J. 89, 157 (1997). We also typically review a PCR petition with "deference

to the trial court's factual findings . . . 'when supported by adequate, substantial

and credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in

original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549

(2002)). However, where, as here, "no evidentiary hearing has been held, we

'may exercise de novo review over the factual inferences drawn from the

documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134,

146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at

421). We also review de novo the legal conclusions of the PCR judge. Harris,

181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).

      To establish a prima facie claim of IAC, defendant must satisfy the two -

prong Strickland test: he must show that (l) "counsel's performance was


                                                                            A-3682-18T2
                                        11
deficient" and he "made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment" to the United States

Constitution; and (2) "there is a reasonable probability that, but for counsel's

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

Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable

probability is defined as "a probability sufficient to undermine confidence in the

outcome." Strickland, 466 U.S. at 694.

      Under the first Strickland prong, "counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment."       Id. at 690. Adequate assistance of

counsel must be measured by a standard of "'reasonable competence.'" State v.

Jack, 144 N.J. 240, 248 (1996) (quoting Fritz, 105 N.J. at 53). However,

"'[r]easonable competence' does not require the best of attorneys . . . ." State v.

Davis, 116 N.J. 341, 351 (1989).

      Under the second Strickland prong, defendant must prove prejudice.

Fritz, 105 N.J. at 52. In order to establish the Strickland prejudice prong to set

aside a guilty plea based on IAC, a defendant must show "'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. DiFrisco, 137 N.J.


                                                                           A-3682-18T2
                                       12
434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Moreover,

"'a [defendant] must convince the court that a decision to reject the plea bargain'"

and "insist on going to trial" would have been "'rational under the

circumstances.'" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011)

(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). That determination

should be "based on evidence, not speculation." Ibid. Because there is a strong

presumption that counsel "rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment," Strickland, 466

U.S. at 690, a defendant "bears the burden of proving" both prongs of an IAC

claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350

(2012).

      Applying these standards, we are satisfied defendant failed to make a

prima facie showing of IAC under the Strickland/Fritz test, and we discern no

abuse of discretion in the judge's denial of defendant's PCR petition without an

evidentiary hearing.     Defendant argues "plea counsel was ineffective for

permitting the improper amendment of the robbery charge, [4] for permitting him



4
  We note that this specific claim was never presented to the PCR judge, and,
therefore, is not properly before us. See State v. Galicia, 210 N.J. 364, 383
(2012) ("Generally, an appellate court will not consider issues, even


                                                                            A-3682-18T2
                                        13
to enter a plea to a first[-]degree crime without an adequate factual basis, and

for failing thereafter to move to withdraw the plea." Additionally, defendant

claims his attorney "was ineffective for failing to adequately communicate with

him, and to properly investigate the case, including interviewing and producing

trial witnesses."5 Finally, defendant asserts his plea counsel "was ineffective for

failing to make an effective argument in mitigation of sentencing." 6


constitutional ones, which were not raised below." (citing Deerfield Estates, Inc.
v. E. Brunswick, 60 N.J. 115, 120 (1972))).
5
  Contrary to defendant's claim, the record includes letters he received from his
attorney advising him of the status of the case, the results of plea negotiations,
and the outcome of the investigation and interview of a potential witness.
Defendant provides no information about investigative leads his attorney failed
to pursue or specific witnesses his attorney failed to interview. Instead,
defendant seeks an evidentiary hearing to explore these issues. However,
"[d]efendant must demonstrate a prima facie case for relief before an evidentiary
hearing is required, and the court is not obligated to conduct an evidentiary
hearing to allow defendant to establish a prima facie case not contained within
the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421,
436-37 (App. Div. 2008).
6
  Relying on defendant's challenge to his sentence as excessive on direct appeal,
the PCR judge mistakenly applied Rule 3:22-5, barring claims previously
adjudicated on the merits in a direct appeal. Nonetheless, defendant's claim is
belied by the record. Unlike State v. Hess, 207 N.J. 123, 154 (2011), where
"[t]he sentencing court heard the prosecution's impassioned account, and from
the defense a deafening silence," here, defense counsel vigorously argued both
statutory and non-statutory mitigating factors on defendant's behalf. "The test
is not whether defense counsel could have done better, but whether he met the
constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543
(2013).
                                                                           A-3682-18T2
                                       14
      Even if defense counsel's performance was deficient, defendant has failed

to establish the prejudice prong of the Strickland/Fritz test to set aside his guilty

plea because defendant never demonstrated that "but for counsel's errors," he

"would not have pled guilty and would have insisted on going to trial[,]"

DiFrisco, 137 N.J. at 457 (quoting Hill, 474 U.S. at 59), and "'a decision to reject

the plea bargain'" and "insist on going to trial" would have been "'rational under

the circumstances.'" Maldon, 422 N.J. Super. at 486 (quoting Padilla, 559 U.S.

at 372).    Indeed, during oral argument on his PCR petition, defendant

specifically limited the relief he sought to a reduced sentence, rather than

seeking to vacate his guilty plea and proceed to trial. Thus, defendant failed to

satisfy his burden of proving both prongs of his IAC claim.

      Affirmed.




                                                                             A-3682-18T2
                                        15
