                                NOT FOR PUBLICATION WITHOUT THE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-3949-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRANDON SEGAR, a/k/a
RUSSEL A. McKEE,

          Defendant-Appellant.


                   Submitted March 26, 2020 – Decided June 17, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 12-02-0302.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kisha M.S. Hebbon, Designated Counsel, on
                   the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (William P. Miller, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Brandon Segar appeals the March 2, 2018 denial of his petition

for post-conviction relief (PCR). Having reviewed the decision in light of the

procedural history and record, we affirm for the reasons stated by Judge

Christopher R. Kazlau in his written decision. We add the following brief

comments.

      Defendant entered a guilty plea to third-degree possession of imitation

controlled dangerous substances (CDS) with intent to distribute, N.J.S.A.

2C:35-11, and first-degree armed robbery, N.J.S.A. 2C:15-1. On December 19,

2014, he was sentenced to fourteen years imprisonment subject to the No Early

Release Act's eighty-five percent parole bar, N.J.S.A. 2C:43-7.2, on the robbery,

concurrent to a five-year flat sentence on possession of imitation CDS with

intent.

      Defendant appealed his sentence on the excessive sentence oral argument

(ESOA) calendar. It was affirmed on April 15, 2015. On October 9, 2015, the

Supreme Court remanded the matter for us to consider whether defendant's plea

colloquy sufficed to establish an adequate factual basis for the offenses.

      On March 9, 2016, after the issue was argued, a second ESOA order

memorialized the panel's decision that the factual basis was adequate, and that

thus the judgment of conviction and sentence were affirmed.          Defendant's


                                                                             A-3949-17T4
                                        2
petition for certification was thereafter denied. State v. Segar, 227 N.J. 132

(2016).

      Now on appeal, defendant raises the following points:

            POINT I: THE TRIAL COURT ERRED IN
            FINDING THAT DEFENDANT'S PETITION FOR
            POST     CONVICTION    RELIEF     WAS
            PRO[C]EDURALLY BARRED BECAUSE THE
            ISSUES RAISED IN THE PETITION WERE
            ALREADY ADJUDICATED ON DIRECT APPEAL.

            POINT II: THE TRIAL COURT ERRED IN
            DENYING DEFENDANT'S PETITION FOR POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM    AN   EVIDENTIARY   HEARING     TO
            DETERMINE THE MERITS OF HIS CONTENTION
            THAT HE WAS DENIED THE RIGHT TO THE
            EFFECTIVE ASSISTANCE OF COUNSEL DUE TO
            TRIAL COUNSEL'S FAILURE TO ELICIT AN
            ADEQUATE PLEA FACTUAL BASIS, THE FIRST
            APPELLATE COUNSEL'S FAILURE TO RAISE THE
            INADEQUATE FACTUAL BASIS ISSUE, AND THE
            SECOND APPELLATE COUNSEL'S FAILURE TO
            PROPERLY CHALLENGE THE INADEQUATE
            FACTUAL BASIS.

                  A.   The Prevailing Legal Principles Regarding
                  Claims Of Ineffective Assistance Of Counsel,
                  Evidentiary Hearings And Petitions For Post
                  Conviction Relief.

                  B.    Trial Counsel Rendered Ineffective Legal
                  Representation By Virtue Of Him Allowing
                  Defendant To Plead Guilty To Robbery When
                  There Was An Insufficient Factual Basis For This
                  Offense.

                                                                      A-3949-17T4
                                      3
                   C.    Defendant's First Appellate Counsel
                   Rendered Ineffective Legal Representation By
                   Virtue Of His Failure To Raise The Issue Of The
                   Inadequate Factual Basis On Direct Appeal.

                   D.    Defendant's Second Appellate Counsel
                   Rendered Ineffective Legal Representation By
                   Virtue Of His Failure To Properly Challenge The
                   Issue Of The Inadequate Factual Basis.

                   E.    Defendant Is Entitled To A Remand To
                   The Trial Court To Afford Him An Evidentiary
                   Hearing To Determine The Merits Of His
                   Contention That He Was Denied The Effective
                   Assistance Of Trial And Appellate Counsel.

These points lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). Defendant is pursuing the same claim previously addressed under

the guise of ineffective assistance of counsel.

      In order to establish the entitlement to PCR by a preponderance of the

credible evidence, a petitioner must "provide the court with an adequate basis."

State v. Mitchell, 126 N.J. 565, 579 (1992); see, e.g., State v. Preciose, 129 N.J.

451, 459 (1992). To succeed on a claim of ineffective assistance of counsel, a

defendant must establish that his attorney made an error "so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment."      Strickland v. Washington, 466 U.S. 668, 687 (1984).              A



                                                                           A-3949-17T4
                                        4
defendant must also demonstrate that the alleged error prejudiced his defense.

Ibid.

        Since the factual basis has been previously found to have been adequate,

defendant's prior counsel cannot be said to have failed to represent him in a

competent fashion. In other words, an ineffective assistance of counsel claim

cannot be grounded on competent representation, and it must be based on an

error or omission of constitutional magnitude.       If we found the colloquy

supported the plea, counsel's representation was competent.

        Furthermore, nowhere does defendant explain how an inadequate factual

basis per se is a reason, had it been explained to him, that he would have

proceeded to trial. Pursuant to State v. Fritz, 105 N.J. 42, 60-61 (1987), a

defendant must show how the error committed by counsel was of such a nature

that but for that mistake he would have proceeded to trial. Logically, the failure

to establish an adequate basis, assuming for the sake of argument that it

occurred, was not such a mistake. Defendant falls far short of meeting either

prong under Strickland.

        Affirmed.




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