                                NOT FOR PUBLICATION WITHOUT THE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-5251-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EARL AUSTIN,

     Defendant-Appellant.
_________________________

                    Submitted October 8, 2019 – Decided October 28, 2019

                    Before Judges Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 12-02-0309.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Elizabeth H. Smith, Designated Counsel, on
                    the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Alanna M. Jereb, Assistant Prosecutor, on
                    the brief).

PER CURIAM
        Defendant Earl Austin appeals from the February 27, 2018 order denying

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

affirm.

                                           I.

        The following facts are taken from the record.       On May 19, 2011,

defendant waived indictment and trial by jury by pleading guilty under

Accusation No. 11-05-383-A to possession of a controlled dangerous substance

(CDS), N.J.S.A. 2C:35-10(a)(1). Pursuant to a plea agreement, defendant would

be sentenced to non-custodial probation, which would run concurrently with a

previous sentence of juvenile probation.

        While awaiting sentencing on the Accusation, on May 26, 2011, defendant

approached A.A.1 in Jersey City while armed with a 9mm handgun. Defendant

demanded A.A. "give him everything he had." A.A. refused to comply and

entered his vehicle in an attempt to leave. Defendant fired three shots from his

weapon at A.A. at close range, striking him through his vehicle and killing him

with two of the shots. On May 28, 2011, defendant turned himself in to the

police "for the murder of [A.A.]."




1
    We use initials to protect the identity of the victim.
                                                                        A-5251-17T3
                                           2
      On February 14, 2012, a Hudson County grand jury charged defendant

under Indictment No. 12-02-0309 with purposely causing the death of another,

N.J.S.A. 2C:11-3(a)(1) and (2) (count one); causing the death of an individual

during the commission of a robbery, N.J.S.A. 2C:11-3(a)(3) (count two);

causing the death of an individual during the commission of a carjacking,

N.J.S.A. 2C:11-3(a)(3) (count three); purposely causing serious bodily injury

with a deadly weapon in the course of a theft, N.J.S.A. 2C:15-1 (count four);

infliction of injury and use of force upon an occupant of a motor vehicle,

N.J.S.A. 2C:15-2 (count five); possession of a weapon with the intent to use the

same weapon unlawfully, N.J.S.A. 2C:39-4(a) (count six); and possession of a

weapon without a permit, N.J.S.A. 2C:39-5(b) (count seven).

      On January 7, 2015, defendant pled guilty to count one, as amended to

aggravated manslaughter, and the other charges were dismissed. At the plea

hearing, defendant admitted that he fired three shots at A.A. resulting in A.A.'s

death. His guilty plea was conditioned upon receiving a maximum sentence of

fifteen years in state prison, a five-year post-release parole period, and $205 in

fines. Defendant was also permitted to argue for a lesser sentence as part of the

plea bargain.




                                                                          A-5251-17T3
                                        3
       On March 20, 2015, defendant was sentenced on the amended aggravated

manslaughter charge and the CDS charge from 2011. Defendant's sentence on

the aggravated manslaughter charge was fifteen years in state prison subject to

the No Early Release Act (NERA), 2 five years of parole supervision upon

release, submission of a DNA sample, and mandatory fines and penalties.

       As to the drug charge, defendant was sentenced to four years in state

prison, a two-year suspension of his driver's license, submission of a DNA

sample, and mandatory fines and penalties.       The sentences were to run

concurrently. Defendant filed a direct appeal of his convictions and sentences,

which we affirmed. State v. Austin, No. A-4189-14 (App. Div. Oct. 28, 2015).

       On July 18, 2017, defendant filed a petition for PCR. The PCR court

appointed counsel and an amended petition was filed on February 27, 2018.

Defendant argued his trial counsel was ineffective because: (1) she failed to

advise defendant of the defenses of third persons and lack of actus reus; (2)

defendant's plea was not knowing and voluntary; (3) the plea was fundamentally

unfair; (4) defendant did not cause A.A.'s death; (5) trial counsel failed to

thoroughly investigate the case; and (6) cumulative errors violated defendant's



2
    N.J.S.A. 2C:43-7.2.


                                                                       A-5251-17T3
                                      4
right to a fair proceeding. The PCR court found there was no evidence that trial

counsel was aware defendant claimed a defense to the charges; or that he was

improperly advised; and no evidence he would have proceeded to trial and pled

not guilty to the charges.

      From this record, defendant presents the following points of argument for

our consideration.

            I.

            THE TRIAL COURT ABUSED ITS DISCRETION IN
            DENYING     AUSTIN'S    PETITION    FOR
            POST[]CONVICTION RELIEF AS AUSTIN HAS
            MADE A SUFFICIENT PRIMA FACIE CASE OF
            INEFFECTIVE ASSISTANCE OF COUNSEL TO
            WARRANT AN EVIDENTIARY HEARING.

            A. STANDARDS OF PCR, REVIEW, AND
            INEFFECTIVE ASSISTANCE OF COUNSEL.

            B. AUSTIN'S LAWYER FAILED TO ARGUE
            POTENTIAL DEFENSES, AND TO ADVISE
            AUSTIN ON THEIR POTENTIAL VIABILITY.

            C. AUSTIN'S LAWYER'S MISREPRESENTATION
            OF THE TERMS OF THE PLEA DEAL, WHICH
            INDUCED AUSTIN TO WAIVE HIS RIGHT TO GO
            TO TRIAL AND WHICH NEGATES THE KNOWING
            AND VOLUNTARY REQUIREMENTS OF THE
            PLEA CONSTITUTES INEFFECTIVE ASSISTANCE
            OF COUNSEL.

            D.  AUSTIN'S         LAWYER'S    FAILURE   TO
            THOROUGHLY           INVESTIGATE    POTENTIAL

                                                                        A-5251-17T3
                                       5
            DEFENSES    CONSTITUTES                 INEFFECTIVE
            ASSISTANCE OF COUNSEL.

      We are unpersuaded.

                                       II.

      Defendant contends that the PCR court should not have dismissed his

petition without allowing an opportunity to provide further support for his

claims at an evidentiary hearing. "An evidentiary hearing on an ineffective

assistance of counsel claim should ordinarily be granted when defendant has

shown a prima facie case." Pressler & Verniero, Current N.J. Court Rules,

comment 2 on R. 3:22-10 (2020). "[I]n order to establish a prima facie claim, a

petitioner must do more than make bald assertions that he was denied the

effective assistance of counsel. He must allege facts sufficient to demonstrate

counsel's alleged substandard performance."      State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999).

      In his petition, defendant denied causing A.A.'s death and claims he was

trying to wrestle a firearm out of another individual's hands, and during that

struggle, the handgun discharged, killing A.A. Thus, he argues that he did not

act purposely, knowingly, or negligently.

      In support of his claim, defendant provided an "unsigned investigation

report from February 2014." The investigator stated in the report that a witness,

                                                                         A-5251-17T3
                                       6
A.B., recanted his prior identification of defendant as the shooter, and stated his

back was turned when the shots were fired. A.B. was ostensibly under the belief

that his participation in the Drug Court program would be terminated if he did

not cooperate in the prosecution of defendant, and therefore, A.B. changed his

story.

         Based upon our careful review of the record, we conclude the PCR court

aptly found the unsigned investigation report of A.B.'s recanted statement failed

to establish a prima facie case that trial counsel was aware of A.B.'s account of

the shooting. No affidavit or certification was submitted by A.B. in support of

defendant's new theory.        Moreover, during his plea allocution, defendant

acknowledged firing three shots at A.A. in his car and that his death resulted

from two of those shots. Further, we cannot overlook the fact that defendant

turned himself in to the police voluntarily after the shooting.

         "The mere raising of a claim of ineffective assistance of counsel does not

entitle the defendant to an evidentiary hearing." State v. Peoples, 446 N.J.

Super. 245, 254 (App. Div. 2016). We agree with the PCR court that defendant's

claims of defense of others and lack of actus reus are bald assertions and devoid

of factual support, and no evidentiary hearing was required.




                                                                           A-5251-17T3
                                          7
                                       III.

      Defendant next contends his trial counsel failed to argue potential

defenses, specifically, use of force for the protection of others under N.J.S.A.

2C:3-5. He claims that because he was deprived of this advice, he pled guilty

to aggravated manslaughter in a "panic" and under duress. We disagree.

      Based upon our careful review of the record, we are satisfied that

defendant never advised his trial counsel that he did not pull the trigger leading

to A.A.'s death. Moreover, A.B. did not witness anything, and the self -serving,

unauthenticated investigative report "does not establish that trial counsel was

aware of the witness statement or of [defendant's] claim[] of defense of others[]"

as noted by the PCR court. No affidavits were submitted by defendant to support

these contentions, which merely amount to bald assertions.

      Defendant contends his right to effective assistance of counsel was also

violated because no investigation was conducted as to whether the incident was

videotaped prior to the entry of his guilty plea. Relying upon the uncertified

statement of A.B. to the private investigator, defendant now claims he tried to

"intervene" to stop the shooting incident, and another party attacked A.A.

leading to the shots fired.




                                                                          A-5251-17T3
                                        8
      As the PCR court noted, defendant failed to provide any affidavits in

support of this claim and again, he merely presents bald assertions that are not

evidential. There is no support for defendant's assumption that a business in the

locale of the crime scene must have had an operational video camera on that

captured what happened.

      We review claims of ineffective assistance of counsel under the two-prong

test established by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland

standard for ineffective assistance of counsel claims under Article I, paragraph

10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30

(2012).   First, defendant must demonstrate that counsel's performance was

deficient. Strickland, 466 U.S. at 687. Second, he must show there exists "a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Id. at 694. Defendant must show

that the deficient performance prejudiced the defense. Id. at 687. "This requires

showing that counsel's errors were so serious as to deprive defendant of a fair

trial, a trial whose result is reliable." Ibid. With respect to both factors of the

Strickland test, a defendant asserting ineffective assistance of counsel on PCR


                                                                           A-5251-17T3
                                        9
bears the burden of proving his right to relief by a preponderance of the

evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

      Also, the right to counsel guarantees defendants the right "to competent

counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a

standard of "reasonableness under prevailing professional norms." Strickland,

466 U.S. at 688. Deficient performance is established by proving that "counsel's

acts or omissions fell 'outside the wide range of professionally competent

assistance' considered in light of all the circumstances of the case." State v.

Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U.S. at 690). And,

the evaluation as to the reasonableness of an attorney's performance must be

"viewed as of the time of counsel's conduct." Ibid. (quoting Strickland, 466 U.S.

at 690).

      Given the entirely speculative nature of defendant's arguments on the

purported lack of an investigation, the PCR court correctly determined that

defendant has failed to establish a prima facie case to satisfy either the

performance or prejudice prong of the Strickland/Fritz paradigm.

                                      IV.

      Defendant also challenges the conviction that resulted from his guilty

plea. He argues that his trial counsel "misled him" about the potential length of


                                                                         A-5251-17T3
                                      10
his sentence, and his recommended fifteen-year sentence "really meant a [ten]

year term."     The trial court specifically queried defendant if the State's

recommendation was his understanding of the plea. He unequivocally replied,

"Yes, it is, Your Honor." Defendant answered all of the questions appropriately.

      The United States Supreme Court has extended the Strickland/Fritz

factors to a criminal defense attorney's representation of an accused in

connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63,

(2012); Missouri v. Frye, 566 U.S. 134, 140 (2012).            A defendant must

demonstrate with "reasonable probability" that the result would have been

different had he received proper advice from his trial attorney. Lafler, 566 U.S.

at 163 (citing Strickland, 466 U.S. at 694).

      Our Supreme Court has also established standards for vacating a guilty

plea based on a claim of ineffective assistance of counsel:

              [t]o 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 (alterations
              in original) (citation and internal quotation marks
              omitted).]


                                                                          A-5251-17T3
                                        11
      Although the question addressed in Nuñez-Valdéz concerned the

defendant's immigration status, we have applied the same standard to assess the

validity of a claim of ineffective assistance of counsel in the context of a guilty

plea that did not involve the immigration status of the defendant. See State v.

Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nuñez-Valdéz

standards to assess the materiality of erroneous information provided by defense

counsel concerning the defendant's right to possess a firearm).

      We are persuaded that defendant understood the ramifications of his guilty

plea, entered his plea knowingly and voluntarily, and that the alleged

deficiencies here clearly fail to meet either the performance or the prejudice

prongs of the Strickland/Fritz test, as well as the standard established under

Nuñez-Valdéz. During his plea hearing, defendant's answers were lucid, his

concessions were corroborated by the evidence, and there was no indication that

he was under the influence of any medication, drugs, or alcohol, or threatened

in any way.

      Although defendant now claims he was advised he would receive a ten-

year prison term, the PCR court noted the signed plea forms state, "maximum

sentence not to exceed [fifteen] years." The trial court thoroughly addressed the

possibility of defendant seeking to withdraw his plea at a later time and


                                                                           A-5251-17T3
                                       12
cautioned him, "it's not that easy," and "that burden is high." Defendant also

indicated that he had enough time to speak to his counsel about his guilty plea.

      We have reviewed each of defendant's contentions and the applicable law,

and we conclude that the remainder of his arguments are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-5251-17T3
                                      13
