                                NOT FOR PUBLICATION WITHOUT THE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-3934-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VIRGIL D. BALDWIN,

     Defendant-Appellant.
___________________________

                    Submitted June 4, 2019 – Decided June 28, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 09-02-
                    0398.

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

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Lisa Sarnoff
                    Gochman, of counsel and on the brief).

PER CURIAM
      Following a joint trial, the jury convicted defendant Virgil D. Baldwin,

and his co-defendant Robert King, of second-degree robbery, and the judge

sentenced defendant to an extended twenty-year term of imprisonment subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2. State v. Baldwin, No. A-0562-

13 (App. Div. Dec. 14, 2015) (slip op. at 2). The Supreme Court denied

defendant's petition for certification. State v. Baldwin, 224 N.J. 527 (2016).

      Defendant's pro se petition for post-conviction relief (PCR) alleged that

trial counsel provided ineffective assistance (IAC) in various respects. One

specific claim, echoed in appointed PCR counsel's brief, was that trial counsel

failed to request a continuance of the "plea cut-off" hearing despite defendant's

failing mental health. Defendant contended that because of counsel's failure, he

rejected the State's offer of a more favorable plea bargain and elected to go to

trial. Defendant requested an evidentiary hearing on the petition. See R. 3:22-

10(b) (entitling petitioner "to an evidentiary hearing only upon the establishment

of a prima facie case in support of post-conviction relief, a determination by the

court that there are material issues of disputed fact that cannot be resolved by

reference to the existing record, and a determination that an evidentiary hearing

is necessary to resolve the claims for relief").




                                                                          A-3934-17T2
                                         2
      The PCR judge, Joseph W. Oxley, who was not the trial judge, denied the

petition without an evidentiary hearing. In a comprehensive written opinion that

accompanied his order, Judge Oxley considered all of defendant's IAC claims

and found they were procedurally barred by Rule 3:22-4 (with certain

exceptions, barring claims that could have been asserted, but were not asserted

in prior proceedings or appeal).      Nevertheless, Judge Oxley proceeded to

consider the merits of the arguments raised, only one of which we need address.

      Specifically, Judge Oxley rejected defendant's claim that trial counsel

provided ineffective assistance by not requesting an adjournment of the plea cut-

off hearing. Judge Oxley recited at length from the trial record, including the

trial judge's observations of defendant at the time of the hearing, and that judge's

conclusion after "several competency hearings" that defendant was "malingering

at all times prior to the trial." Judge Oxley concluded that based upon the trial

judge's specific findings, had defense counsel requested an adjournment, it

would have been denied.

      Before us, defendant contends his IAC claims were not procedurally

barred, and asserts his entitlement to an evidentiary hearing on only one, i.e.,

that trial counsel provided ineffective assistance by not requesting an

adjournment of the plea cut-off date because of defendant's mental health status


                                                                            A-3934-17T2
                                         3
at the time.   Citing only medical testimony in the trial court during prior

competency hearings and comments during other prior proceedings, and baldly

asserting that he was "heavily medicated on . . . psychotropic drugs" on the day

of the plea cutoff, defendant argues he "could not knowingly participate in the

. . . hearing" and was entitled to an evidentiary hearing.

      The argument lacks sufficient merit to warrant extensive discussion. Rule

2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Oxley

in his ruling on the merits of the claim. We add only the following.

      Defendant made no prima facie showing that trial counsel provided

ineffective assistance under the two-pronged standard enunciated in Strickland

v. Washington, 466 U.S. 668 (1984), and adopted by the Court in State v. Fritz,

105 N.J. 42 (1987). Any claim that defendant was decompensating because,

after evaluation at Ann Klein Forensic Hospital and being found competent to

stand trial, he stopped taking his medication while incarcerated at the county

jail, is a "bare assertion . . . insufficient to support a prima facie case of

ineffectiveness." State v. Cummings, 321 N.J. Super. 154, 171 (App. Div.

1999); see also R. 3:22-10(b) ("To establish a prima facie case, defendant must

demonstrate a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed on


                                                                        A-3934-17T2
                                        4
the merits."). Moreover, that assertion is inconsistent with defendant's pro se

claim that he was heavily medicated at the time.

      Affirmed.




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                                       5
