                        NOT FOR PUBLICATION WITHOUT THE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-5274-15T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LUIS A. PEREZ,

     Defendant-Appellant.
_____________________________________________

              Submitted July 13, 2017 – Decided July 24, 2017

              Before Judges Yannotti and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              12-12-2900.

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

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (Nicole L. Campellone,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant Luis A. Perez appeals from an order entered by the

Law Division on June 20, 2016, denying his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

     In December 2012, an Atlantic County grand jury returned

Indictment No. 12-12-2900, charging defendant with the first-

degree murder of Joseph Hurt (Hurt), N.J.S.A. 2C:11-3(a)(1) and

(2) (count one); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and second-

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

three). The charges arose out of an incident that occurred on

April 9, 2012, during which defendant shot and killed Hurt.

     The court listed the matter for trial on March 17, 2014. On

March 14, 2014, the State provided the defense with discovery.

Defendant's attorney reviewed the evidence with defendant on the

morning of March 17, 2014. That day, defendant and the State

reached an agreement and defendant pled guilty to count one in

Indictment No. 12-12-2900, which was amended to charge first-

degree aggravated manslaughter, N.J.S.A. 2C:11-4.

     Defendant also pled guilty to charges in two other indictments

in which he was charged with two counts of fourth-degree possession

of a controlled dangerous substance with intent to distribute.

The State agreed to recommend an aggregate sentence of fifteen to

twenty   years   of   incarceration,   with   a   period   of    parole

                                 2                              A-5274-15T4
ineligibility as prescribed by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, and to dismiss the other charges in the three

indictments.

     On July 17, 2014, defendant moved to withdraw his plea,

arguing that the evidence the State had provided on March 14,

2014, showed that he had a colorable claim of self-defense.

According to defendant, the evidence indicated that Hurt was a

violent man who had been abusive to his girlfriend.

     Defendant asserted that the evidence showed that Hurt had

been seeking to acquire a gun through illegal means to commit a

crime, and Hurt had been in contact with drug dealers to provide

his girlfriend with a regular supply of drugs. Defendant claimed

the evidence indicated that Hurt had been looking for defendant

because of a prior dispute, and he "tussled" with defendant before

the shooting.

     On July 18, 2014, Judge Bernard E. DeLury denied the motion,

finding   among   other   things,   that     defendant     did    not    raise    a

colorable   claim   of    self-defense.       The   judge    then       sentenced

defendant in accordance with the plea agreement to eighteen years

of incarceration, with a NERA period of parole ineligibility. The

judge dismissed the other charges in the three indictments.

     Defendant    filed   a   direct       appeal   from    the   judgment       of

conviction dated July 25, 2014, and the appeal was heard on our

                                       3                                  A-5274-15T4
excessive sentence oral argument calendar. R. 2:9-11. We affirmed

the denial of defendant's motion to withdraw his plea and the

sentence imposed. State v. Perez, No. A-5903-13 (App. Div. Mar.

10, 2015).

    In April 2015, defendant filed a pro se petition for PCR.

Defendant    claimed    he   was   denied   the   effective   assistance    of

counsel, and he sought an evidentiary hearing on his petition.

The trial court appointed counsel for defendant. On April 27,

2016, Judge DeLury heard oral argument in the matter.

    On June 20, 2016, the judge filed a letter opinion in which

he found that defendant had not presented a prima facie case of

ineffective assistance of counsel and an evidentiary hearing was

not required. The judge entered an order dated June 20, 2016,

denying PCR. This appeal followed.

    On appeal, defendant raises the following argument:

            POINT ONE

            [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY
            HEARING ON HIS CLAIM THAT HIS ATTORNEY
            RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

    We reject defendant's argument and affirm the order denying

PCR substantially for the reasons stated by Judge DeLury in his

thorough and comprehensive letter opinion dated June 20, 2016. We

add the following.



                                       4                             A-5274-15T4
     A hearing on a PCR petition is only required when a defendant

establishes "a prima facie case in support of [PCR]," the court

determines that there are disputed issues of material fact "that

cannot be resolved by reference to the existing record," and the

court finds that "an evidentiary hearing is necessary to resolve

the claims for relief." R. 3:22-10(b); see also State v. Porter,

216 N.J. 343, 355 (2013) (noting that under Rule 3:22-10(b), an

evidentiary hearing on a PCR petition is only required when a

defendant presents a prima facie case for relief).

     Here, defendant raised a claim of ineffective assistance of

counsel. To prevail on such a claim, a defendant must meet the

two-prong test established in Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987). The first prong of the test requires a defendant to show

that his or her attorney's performance was deficient. Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

     To do so, a defendant must establish that counsel's alleged

acts or omissions "were outside the wide range of professionally

competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.

2d at 695. This requires a showing "that counsel made errors so

serious   that   counsel   was   not       functioning   as   the   'counsel'



                                       5                              A-5274-15T4
guaranteed the defendant by the Sixth Amendment." Id. at 687, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693.

      To satisfy the second prong of Strickland, the defendant

"must show that the deficient performance prejudiced the defense."

Ibid. The defendant must establish "a reasonable probability that,

but   for   counsel's    unprofessional     errors,   the    result    of   the

proceeding would have been different." Id. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698.

      The Strickland test applies when a defendant seeks to set

aside a guilty plea based on ineffective assistance of counsel.

State v. DiFrisco, 137 N.J. 434, 456-57 (1994) (citing Hill v.

Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203,

210 (1985)); see also State v. Nunez-Valdez, 200 N.J. 129, 139

(2009) (citing DiFrisco, supra, 137 N.J. at 457).

      To    obtain   relief,    the     defendant   must    show    that:   (1)

defendant's handling of the matter was not "within the range of

competence demanded of attorneys in criminal cases." Id. at 457

(quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602,

1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant also must show

"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."    Ibid.   (alteration   in    original)



                                        6                              A-5274-15T4
(quoting Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed.

2d at 210).

     On appeal, defendant argues that his attorney was ineffective

because he allegedly failed to communicate adequately with him

about the case. He claims his attorney did not adequately review

the discovery materials with him and failed to review the possible

defenses.      Defendant   contends   that    this     led   him     to    enter    a

"uninformed plea."

     Defendant notes that the State produced discovery three days

before he entered his plea. He contends this timeframe shows his

attorney    could    not   have    properly       investigated     his    "defense

options." He asserts that the discovery provided by the State

shows he had a viable claim of self-defense.

     However, as Judge DeLury noted in his opinion, when defendant

entered his plea, he asked defendant whether he had reviewed the

indictment     and   the   evidence   in    the    case    with    his    attorney.

Defendant replied, "Yes." In addition, defendant told the judge

that he was satisfied with the services provided by his attorney

and with the plea agreement that was placed on the record.

     Thus, the judge properly rejected defendant's claim that his

attorney had not adequately reviewed the evidence with him. The

claim   was,    as   the   judge   found,   merely     a   "bald    assertion[]"

unsupported by the record. See State v. Cummings, 321 N.J. Super.

                                       7                                    A-5274-15T4
154, 170 (App. Div. 1999) (noting that defendant must do more than

present   "bald   assertions"   to   support   a   claim   of   ineffective

assistance of counsel), certif. denied, 162 N.J. 199 (1999).

     The record also supports the judge's conclusion that trial

counsel made a reasonable, strategic decision to negotiate a

favorable plea agreement with the State rather than risk going to

trial and asserting self-defense. The judge explained that based

on the evidence and the requirements of N.J.S.A. 2C:3-4(a), it was

unlikely that a claim of self-defense would have been successful.

     The judge observed that there was no evidence showing that

Hurt had been attempting to use deadly force against defendant.

The evidence showed that on April 9, 2012, defendant and Hurt had

a verbal disagreement during the day, and Hurt later went to

defendant's house to continue the argument.

     Although there was some evidence that defendant had a "tussle"

with Hurt, there was no evidence that defendant or Hurt had any

visible injuries. Furthermore, there was no evidence that Hurt was

attempting to rob defendant, and Hurt was not found to be in

possession of any of defendant's property.

     The judge also pointed out that there was "strong evidence"

that defendant had time to retreat in complete safety, thereby

precluding the assertion of a claim of self-defense. The judge

wrote:

                                     8                              A-5274-15T4
            The facts show that after the initial argument
            with [Hurt], [defendant] went inside his home.
            Witnesses told police that [Hurt] attempted
            to convince [defendant] to come back outside,
            but after failing in his attempts, [Hurt] went
            about his business that day. Then, [defendant]
            left his house and went back to the street
            armed with a weapon. Thus, the facts show that
            [defendant] had time to retreat, and did not
            have to go back outside armed with a weapon.
            Additionally, there is ample other evidence
            of [defendant's] guilt, such as several
            incriminating statements made by [defendant]
            to police after his arrest.

     In     addition,    the    judge       observed       that      when    he    denied

defendant's motion to withdraw his guilty plea, he found that

defendant had not raised a colorable claim of self-defense. In

ruling on that motion, the judge stated that any immediate need

to use force had been dissipated by the passage of time and

defendant's removal from the scene. The record therefore supports

the judge's finding that counsel's decision to negotiate a plea

agreement     was    within     the   range        of    reasonable         professional

assistance.

     Judge    DeLury     further      found      that     even      if   defendant     had

satisfied the deficiency prong of the Strickland/Fritz test, he

still failed to show that he would not have pled guilty and would

have instead insisted upon going to trial. See Nunez-Valdez, supra,

200 N.J. at 139 (citing DiFrisco, supra, 137 N.J. at 457). As the

judge   noted,      defendant   had    to       show    that   it    would    have    been


                                            9                                     A-5274-15T4
"rational under the circumstances" for defendant to reject the

plea agreement. State v. O'Donnell, 435 N.J. Super. 351, 371 (App.

Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130

S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).

     The judge noted that defendant faced a charge of murder,

which carried the possibility of a life sentence. N.J.S.A. 2C:11-

3(b)(4). The State's plea offer allowed defendant to plead guilty

to an amended charge of aggravated manslaughter. In exchange, the

State would recommend an aggregate sentence of fifteen to twenty

years of incarceration, subject to NERA, with dismissal of the

other charges in Indictment No. 12-12-2900, and the charges in two

other indictments.

     The record supports the judge's finding that defendant failed

to show that, were it not for counsel's alleged deficiencies,

there was a reasonable probability he would not have pled guilty

and would have insisted upon going to trial. The judge noted that

counsel had negotiated a favorable plea agreement. Under the

circumstances, it would not have been rational for defendant to

reject the plea agreement and insist upon a trial.

     In addition, the judge rejected defendant's claim that he did

not enter a knowing and voluntary plea because of his attorney's

deficient handling of the matter. The judge noted that in the plea

colloquy, defendant had stated that he was pleading guilty because

                               10                          A-5274-15T4
he believed he was guilty. Defendant stated on the record that he

was entering his plea voluntarily.

     In the plea colloquy, defendant also stated no one had forced

or threatened him to plead guilty. The judge reviewed the plea

form with defendant, and the judge informed defendant that he was

giving up important rights, including the right to claim that he

shot Hurt in self-defense. Defendant told the court he wanted to

plead guilty. The judge properly rejected defendant's claim for

PCR that his attorney had been deficient in allowing him to plead

guilty.

     We therefore conclude that the record supports the PCR court's

determination that defendant failed to present a prima facie claim

of ineffective assistance of counsel. The judge correctly found

that defendant was not entitled to an evidentiary hearing on his

PCR petition.

     Affirmed.




                               11                           A-5274-15T4
