                            NOT FOR PUBLICATION WITHOUT THE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-0368-16T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

CHARLES J. WELCH,

     Defendant-Appellant.
_______________________________

                Submitted September 13, 2018 – Decided October 15, 2018

                Before Judges Hoffman and Suter.

                On appeal from Superior Court of New Jersey, Law
                Division, Mercer County, Indictment No. 07-08-0858.

                Joseph A. Krakora, Public Defender, attorney for
                appellant (Carolyn V. Bostic, Designated Counsel, on
                the brief).

                Angelo J. Onofri, Mercer County Prosecutor, attorney
                for respondent (Tasha M. Kersey, Assistant Prosecutor,
                of counsel and on the brief).

PER CURIAM
      Defendant Charles Welch appeals from the June 24, 2016 Law Division

order denying his petition for post-conviction relief (PCR). We affirm.

                                        I

      In August 2007, a Mercer County grand jury charged defendant with first-

degree murder and related charges in the fatal shooting of Robert DeLoach on

September 27, 2005, in Trenton. On that date, defendant had words with women

connected to a rival gang. After defendant saw one of the women place a call

on her cell phone, DeLoach approached a few minutes later on a bicycle.

Defendant assumed DeLoach came armed to exact revenge. But defendant did

not wait to see if DeLoach was armed; instead, he started firing shots at him.

Following his arrest, defendant voluntarily provided a statement to police ,

admitting that he had shot and killed DeLoach.

      As part of a negotiated plea, defendant agreed to plead guilty to count one,

amended to first-degree aggravated manslaughter. In exchange, the State agreed

to recommend the dismissal of all the remaining counts contained in the

indictment, and a term of imprisonment not to exceed twenty-two years.

      After defendant answered affirmatively that he was acting in self-defense

during his sworn plea allocution, the following colloquy occurred between the

trial judge and defendant:


                                                                          A-0368-16T4
                                        2
Q. Well, you shot [the victim] once, right?

A. Once?

Q. You shot him – you started out by shooting him one time, right?

A. Yes.

Q. What happened after that?

A. I kept shooting.

Q. You kept shooting. Okay. And how many shots did you fire?

A. Six.

Q. Okay. So, after the first shot hit him, what happened to him?

A. He ran.

Q. Okay. And he started running away from you?

A. Yes.

Q. And what happened, did the second shot hit him?

A. I don't know.

Q. Okay. And did he eventually fall?

A. No. He kept running.

Q. After you shot him?

A. Yes.

Q. Did he run away from you entirely?


                                                           A-0368-16T4
                           3
              A. Yes.

              Q. So, while he was running away, you shot him in the back?

              A. Yes.

        Four days after his plea hearing, defendant filed a pro se motion to

withdraw his guilty plea. Defendant provided only a bare assertion of innocence

and failed to list any witnesses or the content of their testimony. The plea judge

denied the motion, finding that he had gone over the self-defense issue at the

time of the plea, and found defendant otherwise failed to present a basis for

withdrawing his plea under Slater.1 Specifically, the judge found that defendant

"shot a man who had no gun, who did nothing to him, [he] [did not] see a gun,

[he] [did not] see him do anything threatening, [he] [did not] hear him say

anything threatening. And then when the victim started to run away, he shot

him in the back."

        At sentencing, the court imposed a term of imprisonment for twenty-two

years, subject to the No Early Release Act.        On direct appeal, defendant

challenged his sentence and the denial of his motion to withdraw his guilty plea;

we rejected defendant's arguments, affirming his conviction and sentence. State




1
    State v. Slater, 198 N.J. 145 (2009).
                                                                          A-0368-16T4
                                            4
v. Welch, No. A-3808-10 (App. Div. Oct. 16, 2012), certif. denied, 213 N.J. 536

(2013).

      In 2013, defendant filed a pro se PCR petition. On March 12, 2015, the

Law Division dismissed defendant's petition "without prejudice due to

[assigned] counsel's failure to timely file a brief . . . ." On June 23, 2015 – 104

days later – defendant filed a second PCR petition.

      Following oral argument, the PCR judge issued a written decision denying

defendant's petition. He first found the petition was procedurally barred. Rule

3:22-12(a)(4) provides that petitions dismissed "without prejudice . . . shall be

treated as a first petition . . . if . . . refiled within [ninety] days after the date o f

dismissal." Since defendant did not file his second petition within this ninety-

day timeframe, the PCR judge treated the petition as a second or subsequent

petition for PCR. R. 3:22-12(a)(2). Because defendant's second petition did not

include an allegation that the assigned counsel on his first PCR petition was

ineffective, Rule 3:22-12(a)(2)(C), the PCR judge determined this second

petition was untimely, pursuant to Rule 3:22-12(a)(2).

      The judge nevertheless went on to address the merits of defendant's eleven

claims of ineffective assistance of trial and appellate counsel, and judicial




                                                                                 A-0368-16T4
                                            5
misconduct, before denying defendant's petition as both time-barred and lacking

in substantive merit. This appeal followed.

      Defendant raises four arguments for our consideration:

            POINT I:
            DEFENDANT     WAS  DEPRIVED   OF  HIS
            CONSTITUTIONAL RIGHTS TO EFFECTIVE
            ASSISTANCE OF COUNSEL AND DUE PROCESS
            DURING THE PCR PROCEEDINGS AND,
            THEREFORE,    THIS MATTER   MUST   BE
            REMANDED FOR THE ASSIGNMENT OF NEW
            PCR COUNSEL AND NEW PCR PROCEEDINGS.
            (NOT RAISED BELOW)

            POINT II:
            THE PCR COURT ABUSED ITS DISCRETION BY
            HOLDING THAT DEFENDANT'S SECOND PCR
            PETITION WAS TIME-BARRED BY R. 3:22-
            12(A)(2), AND THAT THE EXCEPTION FOR
            INEFFECTIVE ASSISTANCE OF PCR COUNSEL IN
            R. 3:22-12(A)(2)(C) DID NOT APPLY.

            POINT III:
            THE PCR COURT ABUSED ITS DISCRETION BY
            HOLDING THAT THE DEFENDANT'S CLAIMS
            WERE PROCEDURALLY BARRED BY R. 3:22-
            4(B).

            POINT IV:
            THE PCR COURT ABUSED ITS DISCRETION BY
            DENYING AN EVIDENTIARY HEARING WHERE
            DEFENDANT ESTABLISHED THAT HE WAS
            PREJUDICED BY TRIAL COUNSEL'S FAILURE TO
            CORRECTLY ADVISE HIM THAT, IF HE PLED
            GUILTY, HE WOULD WAIVE HIS RIGHT TO


                                                                       A-0368-16T4
                                      6
            APPEAL THE DENIAL OF THE MOTION TO
            SUPPRESS HIS PURPORTED CONFESSION.

                                             II

      To establish a prima facie case of ineffective assistance of counsel,

defendant must satisfy the two-prong test articulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in

State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . .

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed . . . by the Sixth Amendment."         Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 687). Defendant must then show counsel's deficient

performance prejudiced the defense. Ibid. To show prejudice, defendant must

establish by "a reasonable probability" that the deficient performance

"materially contributed to defendant's conviction . . . ." Id. at 58.

      PCR is New Jersey's analogue to the federal writ of habeas corpus. State

v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459

(1992)). It is the vehicle through which a defendant may, after conviction and

sentencing, challenge a judgment of conviction by raising issues that could not

have been raised on direct appeal and, therefore, ensures that a defendant was

not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482 (1997) (citation

omitted).

                                                                         A-0368-16T4
                                         7
                                              III

      In this case, it is arguable that defendant's PCR counsel erred in failing to

timely submit the first PCR petition's brief and the second PCR petition within

ninety days after the first petition's dismissal; however, defendant fails to

explain how these alleged errors caused any prejudice. Notwithstanding his

finding that the second PCR petition was procedurally barred, the PCR judge

proceeded to address on the merits each of defendant's eleven claims of

ineffective assistance and judicial misconduct. Defendant simply asks us to

presume he was prejudiced by his PCR counsel, United States v. Cronic, 466

U.S. 648, 658 (1984), or to alternatively find "that the facts . . . are sufficient to

establish prejudice under Strickland." "[I]n order to establish a prima facie

claim, [defendant] must do more than make bald assertions that he was denied

the effective assistance of counsel." State v. Cummings. 321 N.J. Super. 154,

170 (App. Div. 1999). Defendant's arguments that he was prejudiced as a result

of his PCR counsel's alleged error in causing the second PCR petition to be

procedurally barred, and in failing to include supporting certifications with his

petitions, clearly lack merit in light of the PCR judge's thorough consideration

of all eleven of defendant's claims.




                                                                              A-0368-16T4
                                          8
      We next discuss defendant's second and third points together, as they

relate to the same issue regarding the procedural barring of defendant's second

PCR petition. The crux of the arguments is that the trial judge abused his

discretion by not finding Rule 3:22-4(b)(2)(C) and Rule 3:22-12(a)(2)(C)

applicable to defendant's PCR petition.      Both of these rules recognize the

viability of second or subsequent PCR petitions when they allege "ineffective

assistance of counsel that represented the defendant on the first or subsequent

application for post-conviction relief." R. 3:22-4(b)(2)(C); R. 3:22-12(a)(2)(C).

      As noted, the trial court judge held each of these subsections inapplicable

because defendant's PCR petition never alleged ineffective assistance of his

PCR counsel – rather all eleven arguments in his petition allege either

ineffective assistance by his trial and appellate counsel, or judicial misconduct

by the trial court. In his brief, defendant concedes this point, and contends "the

PCR court should have taken notice of PCR counsel's obvious deficient

performance below, and found on its own accord that defendant constructively

alleged ineffective assistance of PCR counsel for purposes of" Rule 3:22-

12(a)(2)(C). Defendant's argument is contrary to the plain language of Rule

3:22-4(b)(2)(C) and Rule 3:22-12(a)(2)(C). Moreover, these subsections pertain

only to the issue of whether a PCR petitioner's second petition should be


                                                                          A-0368-16T4
                                        9
procedurally barred.     Because the trial court went on to address each of

defendant's PCR petition's arguments on the merits, defendant was not

prejudiced by the trial judge's conclusions regarding these subsections.

Defendant's second and third points on appeal therefore lack merit.

      Defendant's final point asserts the PCR judge abused his discretion by

denying his petition without affording him an evidentiary hearing regarding

defendant's allegation that his trial counsel failed to advise him that if defendant

pled guilty, he would risk waiving his right to appeal the trial court's denial of a

motion to suppress his purported confession to police.         Where a defendant

establishes a prima facie claim of ineffective assistance of counsel, a court may

conduct an evidentiary hearing. Preciose, 129 N.J. at 462. The determination

whether to hold an evidentiary hearing on an ineffective assistance of counsel

claim is left to the sound discretion of the PCR judge. Ibid. We therefore review

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

abuse of discretion. Ibid. (citation omitted).

      Neither defendant nor the record provides factual substantiation for

defendant's claim of ineffective assistance regarding the legal consequences of

pleading guilty for aggravated manslaughter.         The plea hearing transcript

contains both the trial court judge and defendant's counsel explicitly discussing


                                                                            A-0368-16T4
                                        10
this very issue. After a lengthy colloquy between the judge and counsel as to

the preservability of defendant's motion to suppress his statements to police, the

judge told defendant, "[Y]ou may or may not be foreclosed. By entering this

plea agreement, you may be giving up your right forever to challenge the

admissibility of that statement. Do you understand?" Defendant answered,

"Yes." Defendant's trial counsel then stated:

            And just so the record reflects, I did have that
            discussion with [defendant] about the motion, and it
            was our understanding, because the Court is aware that
            a motion was initially determined . . . it . . . may . . .
            have . . . that preservation aspect to it. So, as the Court
            has noted, we do[ not] know what the Appellate
            Division may do. But, we did discuss that though, just
            so the record reflects.

      In his written opinion, the PCR judge noted this colloquy along with

defendant's guilty plea, and the plea judge's finding "that his plea was made

knowingly, intelligently, and voluntarily." The PCR judge concluded "there is

little doubt that [defendant] understood the risk of entering his plea." Moreover,

the trial judge found no evidence that defendant suffered prejudice from the

alleged ineffective assistance. As noted, to establish prejudice, the defendant

must show by "a reasonable probability" that the deficient performance

"materially contributed to defendant's conviction[.]" Fritz, 105 N.J. at 58. The

record reflects no such showing.

                                                                          A-0368-16T4
                                       11
      Defendant's brief acknowledges the trial judge's conclusion that the record

contains no evidence of prejudice, only to reiterate the claim that defendant's

PCR counsel provided ineffective assistance. Defendant then argues the context

surrounding his statements to the police, including his age at the time of the

statement, as well as the extent of litigation as to the admissibility of the

statement. However, defendant fails to explain how these arguments relate to

the trial counsel's alleged failure to advise on the consequences of pleading

guilty, or how the alleged deficiency by trial counsel materially contributed to

defendant's conviction.

      We conclude the trial judge did not abuse his discretion in denying

defendant's PCR petition without an evidentiary hearing for abuse of discretion.

      Affirmed.




                                                                         A-0368-16T4
                                      12
