                                NOT FOR PUBLICATION WITHOUT THE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-4737-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WARREN C. DAVIS, a/k/a
CHRISTOPHER DAVIS, WARREN
DAVIS, JR., CHRISTOPHER
C. DAVIS, WARREN JOHNSON,
PUDGE, CHRISTOPHER JOHNSON,
BRIAN SCOTT, TERON STANBACK,
and CHRISTOFER JOHNSON,

     Defendant-Appellant.
__________________________________

                    Submitted November 8, 2018 – Decided November 29, 2018

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 11-12-
                    1199.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Lee March Grayson, Designated Counsel, on
                    the brief).
            Charles A. Fiore, Gloucester County Prosecutor,
            attorney for respondent (Monica A. Bullock and Dana
            R. Anton, Senior Assistant Prosecutor, on the brief).

PER CURIAM

      Defendant Warren Davis appeals from a June 2, 2017 order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

      This appeal arises from the unique procedural history of defendant's PCR

petition. The PCR judge originally denied the petition on March 2, 2015. We

affirmed the decision pursuant to Rule 2:8-3(b), but the Supreme Court

summarily remanded the matter to the PCR judge to make findings of fact and

conclusions of law on all of defendant's PCR claims. State v. Davis, No. A-

4053-14 (App. Div. July 20, 2016); and State v. Davis, 228 N.J. 92 (2016).

      We repeat the facts as previously recounted in our prior decision because

they remain unchanged. We summarized the facts as follows:

                  On May 9, 2011, defendant entered a bank, drew
            an automatic weapon, told the bank tellers to "get
            down," and left the bank with an unspecified amount of
            money. On December 7, 2011, he was indicted for
            robbery, conspiracy, theft and several weapons
            offenses. At the pretrial conference held on October
            15, 2012, the judge informed defendant that he was
            potentially facing a maximum sentence of [one hundred
            and sixteen and one half] years if convicted on all
            counts. She noted that the State had offered a plea deal

                                                                       A-4737-16T4
                                       2
of ten years subject to the No Early Release Act
(NERA) and that defendant had counter-offered five
years. She informed defendant that if he rejected the
State's plea offer she could impose a more severe
sentence and that no further negotiations could be
conducted after the pretrial conference. Defendant did
not accept the offer on that date.

      On the trial date, . . . defendant entered an open
plea to first-degree robbery in violation of N.J.S.A.
2C:15-1, in exchange for the State dismissing the
remaining charges. During the plea hearing, the
following colloquy took place between the judge and
defendant:

            THE COURT: This robbery is a first-
      degree offense, and it carries with it a
      maximum penalty of 20 years incarceration
      and/or a $200,000 fine; do you understand
      that?

             THE DEFENDANT: Yes.

             THE COURT: This is an open [p]lea,
      sir.

             THE DEFENDANT: Yes.

            THE COURT: Meaning what will
      happen is if I accept the [p]lea, I will order
      a Pre-Sentence Report. That Pre-Sentence
      Report will give me background
      information concerning your criminal
      history, your educational history, where
      you've lived, whether you've had any drug
      and alcohol rehabilitation, whether you
      have any medical problems. It will also
      give me a summary of the allegations in

                                                           A-4737-16T4
                            3
this case, of what the State contends
happened here.

       There will also be a part of that Pre-
Sentence Report where you'll be able to
share with the investigator . . . anything
that you know in reference to the allegation
of this robbery.

       Also, I will invite both counsel to
write a Sentencing Memorandum, where
they'll be able to share information. Your
attorney would be able to share
information concerning your background.
Any letters that you may have anyone write
for the [c]ourt to consider.

      I will listen to any statement that you
make at sentencing. I also will have the
opportunity to listen to any statements of
the victims at time of sentencing.

      The State will submit their
Sentencing Memorandum, and their
recommendation to the Court.            After
reviewing all of that, after listening to the
arguments of counsel, after having heard
any statement that you wish to make at the
time of sentencing; I will sentence you
according to what I find the appropriate
sentence to be; you understand that?

THE DEFENDANT: Yes, ma'am.

      ....

     Do you have any questions
concerning what an open [p]lea is, sir?

                                                A-4737-16T4
                     4
                           THE DEFENDANT: No, ma'am.

                    The court accepted defendant's plea, and
              sentenced him to twelve years subject to NERA. We
              affirmed the sentence on an excessive sentencing
              calendar.

              [Davis, slip op. at 1-3.]

        In defendant's PCR petition, he argued his counsel was ineffective because

he represented to defendant he would receive a ten-year term under the open

plea. Defendant also claimed an ineffective assistance of counsel because his

counsel failed to: review discovery and discuss trial strategies; file a pre -trial

Wade1 motion; conduct an adequate investigation; and secure character

witnesses for the sentencing.

        In our prior decision, we noted the PCR judge denied defendant's petition

because he failed to establish a prima facie case of ineffective assistance of

counsel. Id. at 3. We affirmed the PCR judge's decision because defendant's

claims were bald assertions and did not establish ineffective assistance of

counsel. Id. at 5.




1
    United States v. Wade, 388 U.S. 218 (1967).
                                                                           A-4737-16T4
                                          5
      On remand from the Supreme Court, defendant repeated his arguments

and claims of ineffective assistance of counsel. After considering the parties'

submissions and oral argument, the PCR judge found as follows:

            The Court has fully addressed the issues of the open
            plea during the colloquy that was conducted in this
            matter at the time that I accepted the plea, and . . . that
            has been reviewed, and the . . . Supreme Court, did not
            remand on that specific issue regarding the colloquy
            that was done at the time . . . the plea was accepted.

                   There's also [defendant's claim] that trial counsel
            was ineffective for failing to review discovery with the
            defendant, and for failing to review and discuss trial
            strategy. Well, in reference to . . . counsel properly
            advising the defendant of the penal consequences of
            accepting the plea, I believe defendant's counsel's
            conduct was not so egregious that the result was unjust,
            because both the attorneys affirm that, and I asked in
            the plea colloquy, whether the defendant's plea was
            entered into willingly, knowingly, and intelligently.
            And I specifically told the defendant in entering that
            open plea that it was possible that I would render a
            sentence that would be less favorable than the one he
            had negotiated.

                   In reference to trial counsel's review of discovery
            and trial strategy, defense counsel was not so egregious
            that the result was unjust, because both the attorney and
            the defendant affirmed when I asked whether he
            believed that he had received sufficient time to speak
            with his attorney, . . . [a]nd he indicated to me . . . yes.
            And I asked that before I accepted the plea.

                 The defendant's present claim that he would like
            more time to review the discovery runs counter to his

                                                                           A-4737-16T4
                                         6
response to me at the time that I received the plea that
he had had enough time to speak with his attorney about
the plea negotiations.

         Defendant also raised that trial counsel was
ineffective for failing to file a pre-trial [Wade] motion
. . . . In other words, he asserts that failing to file a pre-
trial identification motion to question the circumstances
underlying the defendant's . . . subsequent identification
in this case should have been file[d] according to his
argument prior to the plea itself, or at time of trial so
that he had the benefit of hearing whether there should
have been a [Wade] motion or identification pre-trial
motion.

       The identification in this matter was made by the
defendant's mother. Counsel . . . did not file a [Wade]
motion, but I do not find that to be ineffective
assistance of counsel since the witness was the
defendant's mother. And she did, in fact, approach the
Gloucester County Prosecutor's Office with
information that her son was connected with the
robbery.

      In this situation, law enforcement procedures did
not require that there be a lineup between mother and
son, since she was the identifying witness . . . . Now,
there was another witness that claimed that he knew the
defendant, I believe.

. . . [T]he next argument of the defendant is that trial
counsel was ineffective for failing to conduct a
thorough investigation into potential witnesses for the
defense.

      The facts in this case show that the [S]tate
proposed that defendant . . . receive a [twenty] year
sentence. The defendant ultimately received initially

                                                                 A-4737-16T4
                              7
[thirteen], and this Court then later reduced it to
[twelve]. And that's not an unjust result, because one
could deduce that trial counsel's submissions helped to
. . . produce a result that would be favorable to the
defendant at this sentencing stage.

       I did have the opportunity to review . . . the post-
trial memorandum and information submitted, and I
actually reduced it. I did not follow the [twenty] year
recommendation of the [S]tate and initially gave
[thirteen], later reducing to [twelve].

      In fact, the defendant's mother, having
approached the prosecutor's office with information the
defendant was involved in the robbery, . . . was
evidence that would likely have proved extremely
damaging at trial to the defendant and may have led to
an outcome that was worse than what was actually
rendered in this case.

       Now, even though the defendant claims that
counsel was ineffective for failing to conduct a
thorough investigation, I have not received information
. . . the indication was that he failed to investigate
statements specifically from . . . his mother, and from
the defendant's friend . . . , both of which had given
statements to the prosecution. And the indication is that
trial counsel failed to actively conduct an investigation,
and that was a result of his strategic decision of how to
proceed in the matter.

. . . [T]rial counsel did not send an investigator to obtain
statements from those witnesses, but there were
statements . . . that the [S]tate had received from them.
His indication was that . . . both of those witnesses
wished to recant their statements. But at this point, . . .
there's no indication of a statement by those witnesses


                                                               A-4737-16T4
                             8
actually recanting. It's his representation that they
recanted statements themselves.

      The defendant also claims ineffective assistance
of counsel . . . would require . . . [an] evidentiary
hearing. I do find the defendant has failed to offer any
concrete proof of his allegations of the recanting of
those two witnesses. The record shows . . . that those
witnesses had given statements that had been received
by the [S]tate and shared in the course of discovery that
were to the contrary.

       So, I do not find that there was ineffective
assistance of trial counsel in failing to file motions for
a pre-trial discovery suppression since the two
witnesses that were the identifying witnesses, in fact,
were people that knew the defendant.

        Failing to share discovery — and although he
indicated that he did receive the discovery and had the
opportunity to review it just prior to the jury coming in,
it's noted that this defendant pled guilty on the day of
trial, and that prior to jury voir dire he entered into his
open plea to the [c]ourt. And he had received the
discovery prior to that point, although he's claiming that
it was not a lot of time between when he received the
. . . opportunity to review the discovery and when he
entered the plea.

       He also indicates that there was a failure to
produce character letters. And although character
evidence alone may be enough, if a jury so finds, to
determine whether a defendant is guilty or not guilty
[of] a crime charged, character evidence does place the
defendant's character at issue, which would then be
subject to examination by the [S]tate, and challenges by
the [S]tate as well.


                                                              A-4737-16T4
                            9
      This appeal followed. Defendant repeats the claims raised before the PCR

judge, which are as follows:

            POINT I – THE ORDER DENYING POST-
            CONVICTION RELIEF SHOULD BE REVERSED
            AND THE CASE REMANDED FOR A FULL
            EVIDENTIARY   HEARING   BECAUSE  THE
            DEFENDANT MADE A PRIMA FACIE SHOWING
            OF INEFFECTIVE ASSISTANCE OF COUNSEL
            UNDER THE STRICKLAND/FRITZ TEST.

                  A.  TRIAL COUNSEL WAS INEFFECTIVE
                  BECAUSE    HE   "GUARANTEED"   THE
                  DEFENDANT THAT IN EXCHANGE FOR AN
                  OPEN PLEA TO FIRST-DEGREE ROBBERY,
                  A TEN[-]YEAR PRISON TERM WOULD BE
                  IMPOSED.

                  B.  TRIAL COUNSEL WAS INEFFECTIVE
                  BECAUSE HE FAILED TO PROVIDE THE
                  DEFENDANT       WITH    COMPLETE
                  DISCOVERY, REVIEW THE DISCOVERY
                  WITH THE DEFENDANT OR DISCUSS
                  TRIAL STRATEGY.

                  C.   TRIAL COUNSEL WAS INEFFECTIVE
                  BECAUSE HE FAILED TO FILE A PRETRIAL
                  WADE MOTION TO CHALLENGE THE
                  ADMISSIBILITY OF THE ALLEGED OUT-
                  OF[-]COURT IDENTIFICATION OF THE
                  DEFENDANT.

                  D.  TRIAL COUNSEL WAS INEFFECTIVE
                  BECAUSE HE FAILED TO CONDUCT AN
                  ADEQUATE INVESTIGATION.



                                                                       A-4737-16T4
                                     10
                  E.  TRIAL COUNSEL WAS INEFFECTIVE
                  BECAUSE HE FAILED TO PRESENT
                  CHARACTER WITNESSES ON BEHALF OF
                  THE DEFENDANT AS MITIGATION AT
                  TIME OF SENTENCING.

                                        I.

      To establish ineffective assistance of counsel, defendant must satisfy a

two-prong test:

            First, the defendant must show that counsel's
            performance was deficient. This requires showing that
            counsel made errors so serious that counsel was not
            functioning as the "counsel" guaranteed the defendant
            by the Sixth Amendment. Second, the defendant must
            show that the deficient performance prejudiced the
            defense. This requires showing that counsel's errors
            were so serious as to deprive the defendant of a fair
            trial, a trial whose result is reliable. Unless a defendant
            makes both showings, it cannot be said that the
            conviction . . . resulted from a breakdown in the
            adversary process that renders the result unreliable.

            [State v. Fritz, 105 N.J. 42, 52 (1987) (quoting
            Strickland, 466 U.S. 668, 687 (1984)).]

      Counsel's performance is evaluated with extreme deference, "requiring 'a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance . . . .'" Fritz, 105 N.J. at 52 (alteration in

original) (quoting Strickland, 466 U.S. at 688-89).        "To rebut that strong

presumption, a [petitioner] must establish . . . trial counsel's actions did not


                                                                          A-4737-16T4
                                       11
equate to 'sound trial strategy.'" State v. Castagna, 187 N.J. 293, 314 (2006)

(quoting Strickland, 466 U.S. at 689). "Mere dissatisfaction with a 'counsel's

exercise of judgment' is insufficient to warrant overturning a conviction." State

v. Nash, 212 N.J. 518, 542 (2013) (quoting State v. Echols, 199 N.J. 344, 358

(2009)).

      To demonstrate prejudice, "'actual ineffectiveness' . . . must [generally] be

proved[.]" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 692-93).

Petitioner must show the existence of "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Ibid. (quoting Strickland, 466 U.S. at 694). Indeed,

            [i]t is not enough for [a] defendant to show that the
            errors had some conceivable effect on the outcome of
            the proceeding. Virtually every act or omission of
            counsel would meet that test . . . and not every error that
            conceivably could have influenced the outcome
            undermines the reliability of the result of the
            proceeding.

            [Strickland, 466 U.S. at 693 (citation omitted).]

      To sustain this burden, defendant must articulate specific facts to "provide

the court with an adequate basis on which to rest its decision." State v. Mitchell,

126 N.J. 565, 579 (1992). The trial judge must view the facts alleged in the light


                                                                           A-4737-16T4
                                       12
most favorable to defendant. State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999) (citing State v. Preciose, 129 N.J. 451, 462-63 (1992)).

      Defendant "must do more than make bald assertions that he was denied

the effective assistance of counsel." Ibid.; see also Rule 3:22-10(b). A PCR

judge should grant evidentiary hearings only if a defendant has presented a

prima facie claim of ineffective assistance of counsel. Preciose, 129 N.J. at 462.

To do so, defendant "must allege facts sufficient to demonstrate counsel's

alleged substandard performance," Cummings, 321 N.J. Super. at 170, and

"must demonstrate a reasonable likelihood that his or her claim will ultimately

succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (citing

Preciose, 129 N.J. at 463). "If the court perceives that holding an evidentiary

hearing will not aid the court's analysis of whether the defendant is entitled to

post-conviction relief, . . . or that the defendant's allegations are too vague,

conclusory, or speculative to warrant an evidentiary hearing, . . . then an

evidentiary hearing need not be granted." Ibid. (citations omitted); see also Rule

3:22-10(e).

      "[W]here the [PCR] court does not hold an evidentiary hearing, we may

exercise de novo review over the factual inferences the trial court has drawn

from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373


                                                                          A-4737-16T4
                                       13
(App. Div. 2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). Thus, if

warranted, we may "conduct a de novo review of both the factual findings and

legal conclusions of the [trial] court[.]" Harris, 181 N.J. at 421 (emphasis

omitted).

      Regarding investigations made by defense counsel, the Supreme Court has

stated "counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary[,]" and the

failure to do so may "render the lawyer's performance deficient" and support a

claim of ineffective assistance of counsel. State v. Porter, 216 N.J. 343, 353

(2013) (alteration removed) (internal citations omitted). However, to establish

such a claim, a defendant "must assert the facts that an investigation would have

revealed, supported by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the certification." Cummings,

321 N.J. Super. at 170 (citing Rule 1:6-6). Absent a statement by the witness of

the facts he or she would have presented if called to testify, there is no basis to

analyze how the trial outcome would be affected. Ibid.

      "A Wade hearing is required to determine if the identification procedure

was impermissibly suggestive and, if so, whether the identification is reliable."

State v. Micelli, 215 N.J. 284, 288 (2013). However, "there is no automatic


                                                                           A-4737-16T4
                                       14
entitlement to an evidentiary hearing on an out-of-court identification." State v.

Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004) (citing Watkins v. Sowders,

449 U.S. 341 (1981)). The trial court should order a Wade hearing only when a

defendant "can show some evidence of suggestiveness." State v. Henderson,

208 N.J. 208, 218 (2011).

      On appeal, defendant argues he established a prima facie case of

ineffective assistance by his trial counsel warranting an evidentiary hearing.

Defendant argues his attorney had guaranteed him a ten-year sentence, which he

relied upon to enter into an open plea. He claims that because he received a

greater sentence, his plea was not knowing. He contends the judge did not

explain an open plea could result in more than ten years of incarceration.

      Defendant argues his defense counsel did not obtain DVD evidence of the

robbery for him to review before the trial date. Defendant claims his counsel

was ineffective for failing to file a Wade motion because his mother and friend

wished to recant their statements to police, and counsel failed to communicate

with these witnesses regarding their recantation. Finally, defendant claims his

attorney was ineffective for failing to present character evidence at his

sentencing.




                                                                          A-4737-16T4
                                       15
                                      II.

      We have reviewed defendant's claims and find them to lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). There is no

evidence in the record showing defense counsel guaranteed defendant a ten-year

sentence. The judge clearly explained to defendant his sentence exposure could

exceed ten years.

      The transcript of the pre-trial conference demonstrates all discovery had

been provided to defendant. Despite this, defendant's claim the DVD of the

robbery was crucial discovery is unavailing, because he had already been

identified by a victim eyewitness and by his mother, who had viewed the DVD.

Additionally, a Wade motion would have been fruitless because it was

defendant's mother and friend who identified him from the surveillance video.

There is no evidence to suggest the identification was "impermissibly

suggestive" or that defendant's own mother would misidentify him.

Furthermore, no statements were submitted from either witness to establish they

had recanted their statements identifying defendant before defendant's plea.

Moreover, the victim had identified defendant, and her testimony was clear and

unwavering.




                                                                       A-4737-16T4
                                     16
      There is no indication defendant would have received a better sentence

had defense counsel adduced character evidence at the sentencing hearing.

Indeed, because of the nature of defendant's offense, and his extensive criminal

history, he faced a sentence in excess of one-hundred and sixteen years. The

State recommended ten years, and defendant received a slightly greater sentence

than the recommendation.

      For these reasons, defendant's claims do not meet either Strickland prong.

As a result, he did not establish a prima facie case of ineffective assistance of

counsel or the right to an evidentiary hearing.

      Affirmed.




                                                                         A-4737-16T4
                                       17
