                                NOT FOR PUBLICATION WITHOUT THE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-0977-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROSS W. BROWN,

     Defendant-Appellant.
_________________________

                    Submitted September 17, 2018 – Decided October 18, 2018

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Accusation No. 13-09-2311.

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

                    Joseph D. Coronato, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella,
                    Assistant Prosecutor, of counsel; Christian E. Schlegel,
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Ross Brown appeals from the August 11, 2016 Law Division

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

evidentiary hearing. We affirm.

      Defendant was initially charged in a complaint-warrant with second-

degree robbery, N.J.S.A. 2C:15-1(a)(1). After waiving indictment, defendant

entered a negotiated guilty plea to a two-count accusation charging him with

third-degree theft, N.J.S.A. 2C:20-3, and third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2).    During the plea colloquy, defendant admitted to

stealing a necklace valued at $1600 from the Ocean County Mall. Although he

returned the necklace after he was confronted by store personnel, he drove his

car into a mall security officer who was attempting to detain him, causing the

officer to jump onto the hood of the car.

      On November 1, 2013, instead of sentencing defendant to an aggregate

180 days in the county jail as a condition of probation as recommended by the

State under the terms of the plea agreement, the trial court sentenced defendant

to two years of non-custodial probation. The court noted that

            but for the efforts of your attorney, you would probably
            be looking at some kind of State Prison sentence. Your
            attorney leveraged your educational history and
            relentlessly really presented that information to the
            Prosecutor's Office who relented and made you a plea


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                                        2
            offer that would allow me to give you a probationary
            sentence without jail.

The court indicated further "that upon [defendant's] admission and . . .

matriculation to law school," it would "terminate [defendant's] probation."

However, instead, on June 27, 2014, defendant pled guilty to violating his

probation by being arrested twice, pleading guilty to one of the resulting charges

in Municipal Court, using heroin on two prior dates and testing positive for illicit

drug use. The court sentenced defendant to serve 160 days in the county jail

with 112 days of jail credit and indicated that upon completion of the sentence,

probation would be terminated.

      Defendant did not file a direct appeal. However, on July 6, 2015, he filed

a pro se PCR petition asserting that his plea counsel was ineffective for failing

to present "mitigating factors" to facilitate his admission into the pre-trial

intervention program (PTI). The mitigating factors relied upon by defendant

included the fact that he was a first-time offender, a student at Seton Hall Law

School, and a product of the foster care system. Defendant also asserted that he

suffered "sexual, mental, [and] physical abuse while in foster care" and was

"diagnosed with [p]ost-[t]raumatic stress disorder, [p]anic disorder, [and]

schizophrenia." Defendant's counsel filed a supporting brief, reiterating that

defendant was denied effective assistance of counsel by his plea counsel's failure

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                                         3
to perform "an exhaustive review of his background and mental health history,

all of which would have presented mitigating reasons to allow entry into the

[PTI] program."

      Following oral argument, in a written decision, the PCR court denied

defendant's petition, finding that his claims failed "under the Strickland/Fritz1

test" because defendant failed to establish a prima facie case of ineffective

assistance of counsel to warrant an evidentiary hearing. The court rejected

defendant's assertion that plea "counsel's performance was deficient" or that any

"alleged deficiencies . . . materially contribute[d] to the outcome in the matter ."

The court pointed to the absence of "any certification or document" indicating

"that PTI would have indeed been granted had this been brought up by defense

counsel." In rejecting defendant's "bald assertions[,]" the court reasoned that

because PTI was unattainable for defendant, "[c]ounsel [could not] be deemed

ineffective for failing to advise his client of relief that was unattainable."

      Relying on State v. Caliguiri, 158 N.J. 28 (1999), the court elaborated that

because defendant was "charged with second-degree robbery[,]" he was

"presumptively ineligible for PTI." The court acknowledged that "[a] defendant



1
  Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42
(1987).
                                                                             A-0977-16T4
                                         4
may rebut the presumption by 'showing compelling reasons justifying . . .

admission and establishing that a decision against enrollment would be arbitrary

and unreasonable[.]'"       However, the court observed that "something

extraordinary or unusual, not merely that the accused [was] a first-time offender

and has . . . accepted responsibility for the crime[,]" was required , and under

State v. Waters, 439 N.J. Super. 215, 226-27 (App. Div. 2015), "[i]f a defendant

fail[ed] to rebut the presumption against diversion, then [r]ejection based solely

on the nature of the offense [was] appropriate." The court explained that while

PTI was unattainable, plea counsel was able to secure a non-custodial

disposition notwithstanding the fact that defendant was charged with a second-

degree crime. In that regard, the court referenced the sentencing judge's praise

of plea "[c]ounsel's efforts to secure noncustodial probation for [defendant]

despite the State seeking a jail sentence."

      The court noted further that defendant also "failed to show that he would

have been a successful candidate in PTI since he . . . violated probation after he

was sentenced." According to the court, "even if [defendant] had been admitted

to PTI, his continuation in that program would have been terminated because

[defendant] incurred a Municipal Court charge in Neptune for breach of the




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                                        5
peace. This occurred after his plea . . . , and before his sentencing on June 27,

2014." This appeal followed.

      On appeal, defendant raises a single point for our consideration:

            THE LOWER COURT ERRED IN DENYING
            [DEFENDANT'S]   PETITION   FOR POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING[.]

      Merely raising a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he was denied the effective assistance of counsel." State v. Cummings, 321

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

evidentiary hearings and make a determination on the merits only if the

defendant has presented a prima facie claim of ineffective assistance of counsel,

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), and we review the judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion. See R. 3:22-10;

Preciose, 129 N.J. at 462.

      To establish a prima facie claim of ineffective assistance of counsel,

                                                                          A-0977-16T4
                                       6
            a defendant must satisfy two prongs. First, he must
            demonstrate that counsel made errors "so serious that
            counsel was not functioning as the 'counsel' guaranteed
            the defendant by the Sixth Amendment." An attorney's
            representation is deficient when it "[falls] below an
            objective standard of reasonableness."

            Second, a defendant "must show that the deficient
            performance prejudiced the defense." . . . The prejudice
            standard is met if there is "a reasonable probability that,
            but for counsel's unprofessional errors, the result of the
            proceeding would have been different." A "reasonable
            probability" simply means a "probability sufficient to
            undermine confidence in the outcome" of the
            proceeding.

            [State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in
            original) (quoting Strickland, 466 U.S. at 687-88, 694;
            Fritz, 105 N.J. at 52).]

      To set aside a guilty plea based on ineffective assistance of counsel, "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. Nuñez-

Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.

DiFrisco, 137 N.J. 434, 457 (1994)). In other words, the defendant must show

that not pleading guilty would have been "rational under the circumstances."




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                                        7
State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla

v. Kentucky, 559 U.S. 356, 372 (2010)).

      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, defendant bears the

burden of proving both prongs of an ineffective assistance of counsel claim by

a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012).

Further, because prejudice is not presumed, Fritz, 105 N.J. at 52, the defendant

must demonstrate "how specific errors of counsel undermined the reliability" of

the proceeding. United States v. Cronic, 466 U.S. 648, 659 n. 26 (1984).

      Applying these principles, we are satisfied that defendant failed to

establish a prima facie case of ineffective assistance of counsel to warrant PCR

or an evidentiary hearing because the existing record was sufficient to resolve

the claim presented. We affirm substantially for the reasons the PCR court

expressed in its comprehensive written decision. Like the PCR court, without

more than a bald assertion, we are unpersuaded that PTI admission was

attainable for defendant, and, even if it was, that the outcome would have been

different given his violation of probation. We are equally unpersuaded that not

pleading guilty would have been rational under the circumstances and that


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                                       8
defendant would have taken the risk of going to trial given the more severe

sentence he would have surely faced if he was convicted of a second-degree

offense.

      Affirmed.




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