                                NOT FOR PUBLICATION WITHOUT THE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-1256-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDWARD O. MCKINNEY,

          Defendant-Appellant.


                    Submitted October 24, 2018 – Decided December 18, 2018

                    Before Judges Koblitz and Currier.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Salem County, Indictment No. 12-03-0170.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel;
                    William P. Welaj, on the brief).

                    John T. Lenahan, Salem County Prosecutor, attorney
                    for respondent (David M. Galemba, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Edward McKinney appeals from the denial of his petition for

post-conviction relief (PCR), contending trial counsel 1 were ineffective, and the

PCR court improperly denied his petition without an evidentiary hearing.

Because we conclude an evidentiary hearing is appropriate on the sole issue of

whether trial counsel were ineffective during the plea stage of the proceedings,

we reverse.

      During the pre-trial conference on July 13, 2012, all parties agreed the

plea offer was a ten-year prison term with an eighty-five percent period of parole

disqualification. The judge discussed with defendant, that if he rejected the plea

and was found guilty of one of the first-degree offenses, he could receive an

extended term sentence between ten years and life in prison. Defendant stated

he understood the potential consequences of a conviction, but wished to proceed

with the trial scheduled for August 13, 2012.           He signed the pretrial

memorandum on the same day.

      The following week, on July 20, defense counsel wrote to defendant,

answering questions defendant had raised in a phone call to her office. At the

end of the letter, she advised:


1
  Defendant was initially represented by a staff attorney from the Office of the
Public Defender. After defendant complained, the Office reassigned his case to
a private pool attorney. See N.J.S.A. 2A:158A-7(c) to (d).
                                                                          A-1256-17T4
                                        2
             I have engaged the prosecutor in further plea
             negotiations based on what I believe to be witness
             availability issues and inappropriate comments made
             during his colloquy with the grand jury. He indicated
             that he would accept a plea to a second-degree robbery
             in exchange for a sentence of [five] years, [eighty-five
             percent]. I know that you may not be interested, but I
             am obligated to advise you of any new plea offers.

      On December 7, 2012, defendant wrote to counsel stating, "My last plea

offer was [five] years, [eighty-five present] but the judge wouldn't allow me to

plead out, for reasons being I don’t know. But I was more than willing to accept

his plea and to get the mess over with." Defendant reminded counsel he had

been in jail for a year awaiting trial, and closed his letter by requesting credit

for his current jail time and a plea agreement including a prison term of three

years with no parole ineligibility period.

      The Public Defender's office assigned defendant new counsel in January

2013, because of an alleged conflict, but the file did not reflect any action taken

regarding the reduced plea offer. On the first day of trial, March 19, 2013, the

new defense counsel advised the court that defendant had attempted to accept

the plea offer of five years with eighty-five percent parole disqualifier but "was

not allowed by the [c]ourt because [the case] was on the trial list." Counsel

further stated:



                                                                           A-1256-17T4
                                        3
               Having not been directly involved and trying to read
            through the case file, it's not really clearly defined, as
            to what the case was, but Mr. McKinney has informed
            me on several occasions that he still would like to take
            that deal and would like me to present that to the [c]ourt
            today.

               So that's what I'm doing, is to inform you that it is
            his request for this [c]ourt to allow him to still enter a
            plea of guilty to the . . . [r]obbery charge.

      In response, the trial judge referred to the pre-trial memorandum

containing the higher plea offer. He stated: "So I see no change in circumstances

and I certainly don’t see any change in circumstances that would allow me to

enter a plea that was less than what was offered to him on the day we put this

matter on the trial list." The judge explained that, even if a subsequent reduced

offer was made, it was not offered "with the consent of the [c]ourt and the plea

cutoff rule would have prohibited that offer, absent a material change in

circumstances."

      The case proceeded to trial, and defendant was found guilty of two counts

of first-degree robbery, N.J.S.A. 2C:15-1, one count of third-degree terroristic

threats, N.J.S.A. 2C:12-3(b), and fourth-degree possession of an imitation

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e). He was also found guilty

of the lesser-included disorderly persons offense of harassment, N.J.S.A. 2C:33-

4.

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                                        4
      Defendant was sentenced to an extended forty-five-year prison term on

the first count with an eighty-five percent period of parole disqualification and

concurrent terms on the remaining counts. This court affirmed defendant's

convictions, but remanded for resentencing. State v. McKinney, No. A-5379-

12 (App. Div. Nov. 30, 2015) (slip op at 2, 14). On remand, the trial court

imposed an aggregate twenty-year prison term with an eighty-five percent parole

disqualifier. We affirmed the sentence. State v. McKinney, No. A-2235-15

(App. Div. May 4, 2016).

      After defendant filed a pro se petition for PCR, he was assigned counsel

who filed a supplemental brief. In his supporting certification, defendant stated

he "never wished to proceed to trial" and "wanted [his] attorney to negotiate the

best offer possible." He advised that counsel

               did ultimately negotiate an offer which I was willing to
               accept. . . . However, I was then told that the [c]ourt
               indicated it was too late for me to plead to that offer.
               . . . I repeatedly asked my attorney to fight for the
               [c]ourt to allow me to enter a guilty plea, but I did not
               receive any updates until we were about to begin trial
               and the judge refused to allow me to plead.

Defendant included several other instances where he believed trial counsel were

ineffective.




                                                                           A-1256-17T4
                                          5
     After oral argument, the PCR court denied defendant's petition without an

evidentiary hearing in a written decision issued on September 19, 2017. The

judge found defendant had not established a prima facie case of ineffective

counsel and an evidentiary hearing was not warranted.

     Defendant presents the following issues on appeal:

           POINT I:

           THE POST-CONVICTION RELIEF COURT ERRED
           IN DENYING THE DEFENDANT'S PETITION FOR
           POST-CONVICTION      RELIEF    WITHOUT
           AFFORDING HIM AN EVIDENTIARY HEARING
           TO FULLY ADDRESS HIS CONTENTION THAT HE
           FAILED TO RECEIVE ADEQUATE LEGAL
           REPRESENTATION FROM TRIAL COUNSEL.

           A.   THE PREVAILING LEGAL PRINCIPLES
           REGARDING    CLAIMS  OF  INEFFECTIVE
           ASSISTANCE OF COUNSEL, EVIDENTIARY
           HEARINGS AND PETITIONS FOR POST[-]
           CONVICTION RELIEF.

           B.   THE DEFENDANT DID NOT RECEIVE
           ADEQUATE LEGAL REPRESENTATION FROM
           EITHER TRIAL COUNSEL DURING THE PLEA
           STAGE OF THE PROCEEDINGS.

           C.   THE DEFENDANT DID NOT RECEIVE
           ADEQUATE LEGAL REPRESENTATION FROM
           TRIAL COUNSEL AS A RESULT OF COUNSEL'S
           FAILURE TO MAKE A MOTION SEEKING TO
           SUPPRESS THE STATEMENT OBTAINED BY
           LAW ENFORCEMENT FROM THE DEFENDANT.


                                                                      A-1256-17T4
                                      6
            D.   THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF COUNSEL'S
            FAILURE TO OBJECT TO TESTIMONY ELICITED
            BY THE STATE FROM TWO POLICE OFFICERS
            INFERENTIALLY      CONNECTING       THE
            DEFENDANT WITH PRIOR CRIMINAL CONDUCT.

            POINT II:

            THE POST-CONVICTION RELIEF COURT ERRED
            IN REJECTING THE DEFENDANT'S PETITION, IN
            PART, ON PROCEDURAL GROUNDS PURSUANT
            TO RULE 3:22-4.

      Where the PCR court has not held an evidentiary hearing, a de novo

review is appropriate. State v. Harris, 181 N.J. 391, 420-21 (2004).

      All of defendant's claims allege the ineffective assistance of counsel. The

standard for determining whether counsel's performance was ineffective under

the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S.

668 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42

(1987).   In order to prevail on an ineffective assistance of counsel claim,

defendant must meet the two-prong test establishing: (l) counsel's performance

was deficient and he or she made errors so egregious that counsel was not

functioning effectively as guaranteed by the Sixth Amendment; and (2) the

defect in performance prejudiced defendant's rights to a fair trial such that there

exists a "reasonable probability that, but for counsel's unprofessional errors, the

                                                                           A-1256-17T4
                                        7
result of the proceeding would have been different." Strickland, 466 U.S. at

687, 694.

                 A defendant shall be entitled to an evidentiary
             hearing only upon the establishment of a prima facie
             case in support of post-conviction relief . . . [t]o
             establish a prima facie case, defendant must demonstrate
             a reasonable likelihood that his or her claim . . . will
             ultimately succeed on the merits.

             R. 3:22-10(b).

However, merely raising a claim for PCR does not entitle defendant to an

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).

      Where "defendant's allegations are too vague, conclusory or speculative," the

court shall not grant an evidentiary hearing. R. 3:22-10(e)(2); see also Cummings,

321 N.J. Super. at 170 (reasoning that "bald assertions" of ineffective assistance are

insufficient to sustain a claim for PCR or warrant an evidentiary hearing). Rather,

"defendant must allege specific facts and evidence supporting his allegations" for

the court to grant an evidentiary hearing. State v. Porter, 216 N.J. 343, 355 (2013).

      Defendant argues both his trial counsel were ineffective during the plea stage

of the proceedings, in their failure to file a motion to suppress his statement, and in

not objecting to certain testimony elicited at trial. We are satisfied defendant failed

to establish a prima facie case of ineffective assistance of counsel regarding his

                                                                               A-1256-17T4
                                          8
contentions that counsel failed to file a Miranda2 motion and object to certain

testimony. We affirm those rulings substantially for the reasons expressed by the

PCR judge in her September 19, 2017 written decision.

       We conclude differently in our review of defendant's contention of error in

the dismissal of his ineffective assistance of counsel claim without an evidentiary

hearing in regard to the plea proceedings.

       In Lafler v. Cooper, 566 U.S. 156, 162-63 (2012), the United States Supreme

Court extended the Strickland test to challenges of guilty pleas based on ineffective

assistance of counsel. "If a plea bargain has been offered, a defendant has the right

to effective assistance of counsel in considering whether to accept it." Id. at 168.

To establish prejudice, a defendant must show "there is a reasonable probability that

. . . the defendant would have accepted the plea[,] . . . that the court would have

accepted its terms, and that the conviction or sentence, . . . under the offer's terms

would have been less severe" than that imposed after trial. Id. at 164.

       Here, defendant has shown, through written correspondence, that the State

extended a significantly reduced plea offer within a week of the plea cut-off. He

also indicated, in that correspondence and his PCR brief, that he would have


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                                                              A-1256-17T4
                                          9
accepted the reduced plea. Instead, defendant proceeded to trial, where he received

a sentence nine times more severe than under the revised plea agreement.3

Therefore, defendant has demonstrated "but for counsel's unprofessional errors, the

result of the proceeding would have been different. Strickland, 466 U.S. at 687.

      Because we find defendant has met the Strickland/Fritz test in demonstrating

with "reasonable probability" that the result would have been different if his

attorney had contacted the court regarding the reduced plea offer, we determine a

remand is appropriate for an evidentiary hearing. Without a hearing, we cannot

know why the court was not immediately apprised of the new offer. With the

reduced plea so near in time to the pretrial memorandum, it was incumbent on both

trial counsel to seek an exception to the plea cut-off and assert a change in material

circumstances pursuant to Rule 3:9-3(g). On remand, an evidentiary hearing shall

be conducted solely to determine whether defense counsel were ineffective in

failing to take the appropriate action of alerting the court to defendant's desire to

accept the significantly reduced plea offer.

      Reversed and remanded. We do not retain jurisdiction.




3
   The sentence ultimately imposed upon remand was four times more severe
than the revised plea offer.
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                                        10
