                        NOT FOR PUBLICATION WITHOUT THE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-3307-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MAURICE HIGHLAND,

     Defendant-Appellant.
_____________________________

              Submitted June 4, 2018 – Decided June 12, 2018

              Before Judges Whipple and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              12-04-0584.

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

              Dennis Calo, Acting Bergen County Prosecutor,
              attorney for respondent (Justin Blasi, Special
              Deputy   Attorney   General/Acting   Assistant
              Prosecutor, of counsel and on the brief).

PER CURIAM

        This matter returns to us after a remand to the Law Division

for     an   evidentiary     hearing     on   defendant    Maurice     Highland's

petition for post-conviction relief ("PCR").                State v. Highland,
No. A-742-15 (App. Div. Oct. 17, 2016).              On remand, the court

conducted a hearing and denied PCR.            On appeal, defendant renews

his claim that plea counsel provided incorrect legal advice,

leading to his guilty plea to first-degree robbery.                    Having

considered the record developed at the evidentiary hearing, we

affirm primarily for the reasons stated in the cogent written

opinion of the PCR judge.      We add the following remarks.

     We incorporate by reference the facts and procedural history

set forth in our October 17, 2016 sua sponte order.              In sum, in

April 2011, defendant was one of four participants in a jewelry

store robbery in Wyckoff.       Pertinent to this appeal, one of the

participants was armed with a sledgehammer, which he used to

shatter the display cases.       Defendant prevented the occupants of

the store from leaving while two of his accomplices removed jewelry

from the cases.

     Although    he   was   charged   in   a    fifteen-count   indictment,

including five counts of first-degree robbery as an accomplice,

N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1, defendant pled guilty to one

count of first-degree robbery as an accomplice, and third-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a).            He was sentenced to

an aggregate fourteen-year prison term, subject to the No Early

Release   Act,   N.J.S.A.    2C:43-7.2.        During   the   plea   hearing,

defendant acknowledged he was extended-term eligible because of

                                      2                               A-3307-16T4
his   criminal   record.    Defendant   further   acknowledged   he   was

relinquishing his right to have defense motions decided by the

court, including his motion to dismiss the robbery counts for

insufficient evidence to sustain first-degree charges.

      On October 23, 2013, we denied defendant's direct appeal,

which was limited to the adequacy of the factual basis for his

guilty plea, and the sentence imposed.     State v. Highland, A-5544-

12 (App. Div. Oct. 23, 2013).     On June 5, 2014, the Supreme Court

denied certification.      State v. Highland, 217 N.J. 623 (2014).

      On June 9, 2015, the judge denied PCR.        In our sua sponte

order remanding the matter for a hearing we framed the issue raised

by defendant as follows:

           [D]efendant filed a PCR petition asserting
           ineffective assistance of counsel because of
           his lawyer's alleged failure to explain the
           State's burden to prove the sledgehammer was
           used in a threatening and menacing manner, not
           simply to break the display case.      In his
           supporting certification, defendant stated:

                 Before entering the guilty plea in
                 this case, I spoke with my attorney
                 about the charges against me.      I
                 emphasized to him that I was never
                 in possession of the hammer [and]
                 that it was never my intent that the
                 hammer be used to cause or threaten
                 harm to anyone in the store.     The
                 only reason that the hammer was even
                 brought into the store was to break
                 the glass.



                                   3                             A-3307-16T4
               My attorney told me that it did not
               matter why the hammer was brought or
               how it was intended to be used.
               [Counsel advised] that the hammer
               itself was a deadly weapon and
               therefore     the    robbery     was
               considered a first[-]degree crime.
               I was never told that [I could
               argue] to a jury that the crime was
               only a second[-]degree crime if [my]
               intent was not to cause harm or
               threaten to cause harm.

               [alterations in original.]

    We, therefore, found defendant had established a prima facie

claim of ineffective assistance of counsel, and a hearing was

necessary "to determine what his plea counsel advised in regard

to the grading of his offense."        Specifically, "[i]f defendant's

lawyer told him his or his co-defendants' intended use of the

sledgehammer was irrelevant, such advice was patently incorrect."

See State v. Rolan, 199 N.J. 575, 583 (2009) (recognizing that the

actor's intent determines whether the item used is a "deadly

weapon" when the item has other legitimate uses).

    On   January   3,   2017,   defendant   and   his   former   attorney

testified at the evidentiary hearing.          Their testimony varied

sharply regarding plea counsel's legal advice regarding use of the

sledgehammer as a deadly weapon.

    At the time of the hearing, plea counsel was employed by the

Public Defender's Office and had been practicing criminal defense


                                   4                              A-3307-16T4
law for thirty-five years.     He recalled discussing with defendant

"whether or not a jury would construe a sledgehammer to be a weapon

for purposes of the armed robbery statute." In particular, counsel

informed defendant the jury would determine "whether or not they

found proof beyond a reasonable doubt that [defendant] and his co-

defendants possessed the sledgehammer for more than just smashing

the jewelry cases."    He testified further, "I'm sure that I told

him that it would have to be determined by the manner in which

[the sledgehammer] was used primarily and the perceptions of the

people who were the victims of the crime."

     Plea   counsel   also   testified   about   his   discussion   with

defendant regarding his complicity in the offense based on

            the circumstances of the case where he went
            in there with two other people, started
            smashing . . . the display cases and people
            were being dragged around the store by their
            hair and screaming and things like that and
            being locked in rooms, I thought that there
            was a good chance that . . . the actions of
            the other defendants would be imputed to him
            since they all arrived in the car together and
            fled together that they were acting together.

     Conversely, defendant denied discussing accomplice liability

with his former attorney.     Rather, he claimed "We didn't discuss

really anything, he told me that the hammer was a deadly weapon

and he told me it did not matter who had the hammer."




                                   5                            A-3307-16T4
     On January 4, 2017, the trial judge issued a written opinion

soundly recognizing defendant's claims lacked merit.                  Among other

things, the judge credited counsel's recollection that "he and the

defendant reviewed the discovery and the strength and weaknesses

of the defendant's case in detail [as] more credible than the

defendant's claim that he was given incorrect legal advice."

     Our   review   of    a   PCR   claim   after    a   court    has    held    an

evidentiary    hearing    "is   necessarily       deferential    to    [the]    PCR

court's factual findings based on its review of live witness

testimony."     State v. Nash, 212 N.J. 518, 540 (2013); see also

State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If

a court has conducted an evidentiary hearing on a petition for

PCR, we necessarily defer to the trial court's factual findings.").

Where an evidentiary hearing has been held, we should not disturb

"'the   PCR   court's    findings   that    are    supported     by   sufficient

credible evidence in the record.'"          State v. Pierre, 223 N.J. 560,

576 (2015) (quoting Nash, 212 N.J. at 540).              We review any legal

conclusions of the trial court de novo.              Nash, 212 N.J. at 540-

41; State v. Harris, 181 N.J. 391, 419 (2004).

     "[A] defendant asserting ineffective assistance of counsel

on PCR bears the burden of proving his or her right to relief by

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

350 (2012).     A defendant must prove counsel's performance was

                                      6                                   A-3307-16T4
deficient; it must be demonstrated that counsel's handling of the

matter "fell below an objective standard of reasonableness" and

that   "counsel   made   errors   so       serious   that   counsel    was   not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland

two-part test in New Jersey).

       A defendant must also prove counsel's "deficient performance

prejudiced the defense."     Strickland, 466 U.S. at 687.             Prejudice

is established by showing a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."       Id. at 694.         Thus, petitioner must

establish that counsel's performance was deficient and petitioner

suffered prejudice in order to obtain a reversal of the challenged

conviction.    Id. at 687; Fritz, 105 N.J. at 52.

       Here, the testimony adduced at the evidentiary hearing belies

defendant's contention that plea counsel failed to render proper

advice.    We find nothing in the record to support defendant's

assertion that counsel failed to advise him about "the State's

burden to prove the sledgehammer was used in a threatening and

menacing manner, not simply to break the display case."               Further,

as the PCR judge observed, counsel had filed a motion to dismiss



                                       7                                A-3307-16T4
the indictment, which defendant knowingly withdrew when he entered

his guilty plea.

     We see no reason to disturb the PCR court's factual and

credibility   findings.    Those   findings   are   entitled   to   our

deference.    State v. Robinson, 200 N.J. 1, 15 (2009).

     Affirmed.




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