                        NOT FOR PUBLICATION WITHOUT THE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-4134-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARKUS BROWN,

     Defendant-Appellant.
___________________________

              Submitted June 7, 2018 – Decided June 25, 2018

              Before Judges Simonelli and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Sussex County, Indictment No.
              12-07-0296.

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

              Francis A. Koch, Sussex County Prosecutor,
              attorney for respondent (Shaina Brenner,
              Assistant Prosecutor, of counsel and on the
              brief; Sally Anne Monkemeier, Assistant
              Prosecutor, on the brief).
PER CURIAM

     Defendant Markus Brown appeals from the April 12, 2017 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.     On appeal, defendant

raises the following arguments:

     POINT I:     THE TRIAL COURT ERRED IN DENYING
                  THE DEFENDANT'S PETITION FOR [PCR]
                  WITHOUT     AFFORDING     HIM    AN
                  EVIDENTIARY    HEARING   TO   FULLY
                  ADDRESS HIS CONTENTION THAT HE
                  FAILED TO RECEIVE ADEQUATE LEGAL
                  REPRESENTATION      FROM      TRIAL
                  COUNSEL, RESULTING IN A GUILTY
                  PLEA WHICH HAD NOT BEEN FREELY,
                  KNOWINGLY      AND     VOLUNTARILY
                  ENTERED.

     POINT II:    THE TRIAL COURT ERRED IN DENYING
                  THE DEFENDANT'S PETITION FOR [PCR]
                  SINCE   HE   FAILED   TO   RECEIVE
                  ADEQUATE   LEGAL    REPRESENTATION
                  FROM TRIAL COUNSEL AT SENTENCING.

We affirm the denial of defendant's PCR petition, but remand for

resentencing to correct an illegal sentence.

     A Sussex County grand jury indicted defendant for first-

degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); second-degree

burglary,    N.J.S.A.   2C:18-2(b)(2)   (count   two);   second-degree

certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count

three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2)

(count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(4) (count six); second-degree possession of a firearm for an

                                  2                            A-4134-16T3
unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count seven); second-

degree   unlawful   possession   of   a   handgun,   N.J.S.A.   2C:39-5(b)

(count eight); and third-degree theft by unlawful taking, N.J.S.A.

2C:20-3 (count nine).

     On January 29, 2014, defendant pled guilty to count one

(robbery) and count three (certain persons not to have weapons)

in exchange for the State's agreement to recommend a fifteen-year

term of imprisonment with an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.   The sentences would run concurrently to each other and

concurrent to any sentence imposed in Essex County.        The plea form

stated that the court "will sentence" defendant to a twelve-year

term with the terms for each count running concurrently.

     At the plea hearing, defendant admitted he committed the two

offenses.    He acknowledged he had sufficient time to confer with

plea counsel; plea counsel reviewed the counts in the indictment

with him and explained the crimes of robbery and certain persons

not to have weapons and the application of the Graves Act and he

understood what the charges meant.         Defendant acknowledged that

plea counsel reviewed discovery, potential defenses, the strengths

and weakness of any such defenses, and the plea form with him and

he voluntarily initialed and signed the plea form.               Defendant



                                      3                            A-4134-16T3
acknowledged he faced a maximum thirty-year term of imprisonment

if convicted of the two charges.

     Defendant also acknowledged he understood the terms of the

plea agreement and that the State would be requesting a fifteen-

year term of imprisonment and the sentences on each charge would

run concurrent.   The court specifically questioned defendant about

his understanding of the terms of the plea agreement as follows:

          THE COURT:      And do you understand at your
                          sentencing, the State wishes
                          to recommend that you be
                          sentenced   to  a   total  of
                          [fifteen]      years       of
                          incarceration that would run
                          concurrent for these charges
                          and     [NERA]    would    be
                          applicable? Is that clear to
                          you?

          DEFENDANT:      Yes.

          THE COURT:      The State also is indicating
                          that if you become the subject
                          of a conviction in Essex County
                          on an unrelated matter, that
                          the sentence of incarceration
                          here would run concurrent to
                          that sentence?

          DEFENDANT:      Yes.

          THE COURT:      In order for that to happen
                          though, that would have to mean
                          that the sentence to be imposed
                          here would come after the
                          sentence that would be imposed
                          in Essex County.       Is that
                          clear?


                                 4                          A-4134-16T3
DEFENDANT:   Yes.

THE COURT:   If you are sentenced here
             first, then with regard to
             those charges in Essex County,
             you would have . . . to,
             through your lawyer, make the
             request that any sentence to be
             imposed there run concurrent
             to this sentence.      Is that
             clear to you?

DEFENDANT:   Yes.

THE COURT:   And do you understand, as I
             have been told, that in a prior
             conference with another judge,
             that it was indicated that your
             exposure would be [twelve]
             years of incarceration subject
             to the [NERA]?

DEFENDANT:   Yes, that's my understanding.

THE COURT:   All right. With all of these
             under – and by the way, I've
             been describing to you this
             period of parole eligibility,
             do you understand that that
             means that is a period of
             incarceration that cannot be
             reduced by good time, work time
             or minimum custody credits?

DEFENDANT:   Yes.

THE COURT:   With   these    understandings
             then, do you know how you wish
             to plead to [c]ounts [one] and
             [three] of this indictment?

DEFENDANT:   Yes.

THE COURT:   And how do you wish to plead?


                    5                          A-4134-16T3
         DEFENDANT:     Guilty.

The colloquy continued as follows:

         THE COURT:     Is anyone forcing you to [plead
                        guilty]?

         DEFENDANT:     No.

         THE COURT:     Do you feel you've had an
                        adequate time to think through
                        that decision and confer with
                        your lawyer?

         DEFENDANT:     Yes I have.

             . . . .

         THE COURT:     Now has anyone pressured or
                        threatened you to cause you to
                        plead guilty?

         DEFENDANT:     No Sir.

         THE COURT:     Has anyone made any other
                        promises to you other than what
                        I've covered with you to cause
                        you to plead guilty?

         DEFENDANT:     No.

         THE COURT:     No one's induced you to plead
                        guilty, have they?

         DEFENDANT:     No.

             . . . .

         THE COURT:     Up to this point, do you have
                        any questions of me or of [plea
                        counsel]?

         DEFENDANT:     No, your Honor.



                               6                          A-4134-16T3
            THE COURT:            And has your attorney answered
                                  to   your  satisfaction,   any
                                  questions you may have asked
                                  him?

            DEFENDANT:            Yes he has.

            THE COURT:            And are you satisfied with his
                                  professional legal services?

            DEFENDANT:            Yes I am.

     Represented       by    a    different   attorney,    on    June   27,     2014,

defendant   appeared        for   sentencing.      Sentencing     counsel       noted

several mitigating factors, including that defendant was twenty-

seven   years   old,    employed,      had    a   minor   son,   had    one     prior

conviction and no acts of violence, was remorseful, took full

responsibility for his actions, and admitted his role in the crimes

at the time of his arrest.           Counsel argued that mitigating factor

seven1 applied based on defendant's prior minimal record.                      In his

allocution, defendant took full responsibility for his actions and

stated he believed he deserved a twelve-year sentence rather than

fifteen years.




1
   "The defendant has no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial period
of time before the commission of the present offense[.]" N.J.S.A.
2C:44-1(b)(7).



                                         7                                    A-4134-16T3
      The court found aggravating factors three and nine2 and

mitigating factor three.3     The court also referenced defendant's

remorse, the admissions he made at the time of his arrest, and the

effect of NERA.     The   court sentenced defendant on the robbery

count to a twelve-year term of imprisonment subject to NERA, and

a concurrent twelve-year term on the certain persons count subject

to NERA, with the sentences to run concurrent to any pending

charges in Essex County.

      Defendant did not appeal his sentence.              Instead, he filed a

PCR petition, arguing plea counsel misadvised him that the certain

persons offense required a mandatory consecutive sentence and

could not be concurrent with the robbery offense, and he would

receive a seven-year sentence on the robbery count subject to NERA

and a concurrent five-year sentence on the certain persons not to

have weapons count.   Defendant also argued that sentencing counsel

rendered   ineffective    assistance      by     not   arguing   for    certain

mitigating factors.

      In an oral opinion, the PCR judge denied the petition without

an   evidentiary   hearing.    The       judge    found    the   petition    was


2
   "The risk that the defendant will commit another offense[,]"
N.J.S.A. 2C:44-1(a)(3); "[t]he need for deterring the defendant
and others from violating the law[,]" N.J.S.A. 2C:44-1(a)(9).
3
  "The defendant acted under a strong provocation[.]"                  N.J.S.A.
2C:44-1(b)(3).

                                     8                                  A-4134-16T3
procedurally barred by Rule 3:22-3 and Rule 3:22-4, as defendant

could and should have raised his sentencing argument in a direct

appeal.

       Addressing the merits, the PCR judge found defendant failed

to establish a prima facie case of ineffective assistance of plea

and    sentencing   counsel.         The   judge    determined    the    the   plea

transcript confirmed defendant understood, and was not misadvised

about, the terms of the plea agreement and did not object to it.

The judge also found defendant did not object at sentencing and

the record supported the aggravating and mitigating factors.                   This

appeal followed.

       The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.               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).     To establish a prima facie claim of ineffective

assistance of counsel, the defendant

            must satisfy two prongs.      First, he must
            demonstrate that counsel made errors "so
            serious that counsel was not 'functioning' as

                                           9                               A-4134-16T3
           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." A defendant will be prejudiced when
           counsel's errors are sufficiently serious to
           deny him "a fair trial."       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)   (citations
           omitted).]

     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)).           We review

a judge's decision to deny a PCR petition without an evidentiary

hearing   for   abuse   of   discretion.   See   R.   3:22-10;   State    v.

Preciose, 129 N.J. 451, 462 (1992).


                                    10                             A-4134-16T3
     We have considered defendant's arguments in light of the

record and applicable legal principles and conclude they are

without   sufficient     merit   to   warrant       discussion     in   a   written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

the PCR judge expressed in his oral opinion.                   We conclude that

defendant failed to show that plea counsel rendered ineffective

assistance.    The record confirms defendant was not misadvised

about the terms of the plea agreement and fully understood the

terms and agreed to them.        He was advised the State recommended a

fifteen-year     term    of   imprisonment         subject    to   NERA     to   run

concurrent.    The record does not support defendant's claim that

plea counsel advised he would receive a seven-year sentence on the

robbery count subject to NERA and a concurrent five years on the

certain persons count.

     Defendant    also    failed      to    show    that     sentencing     counsel

rendered ineffective assistance.             Counsel adequately addressed

aggravating and mitigating factors and successfully argued for a

twelve-year sentence rather than the fifteen-year sentence the

State recommended.      The record does not support a lower sentence.

Accordingly, we affirm the denial of defendant's PCR petition.

     Defendant asserts, and the State concedes, that his twelve-

year sentence on count three is illegal because he could not have

been sentenced to more than ten years on a second-degree offense.

                                       11                                   A-4134-16T3
Thus, we remand for the limited purpose amending the judgment of

conviction to reflect a sentence not to exceed ten years on count

three.

     The denial of defendant's PCR petition is affirmed.      This

matter is remanded to the trial court to correct the judgment of

conviction in accordance with this opinion.




                               12                         A-4134-16T3
