                        NOT FOR PUBLICATION WITHOUT THE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-5350-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DARREN ELLIS,

     Defendant-Appellant.
___________________________

              Submitted September 20, 2017 – Decided October 19, 2017

              Before Judges Simonelli and Haas.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Bergen County,
              Indictment No. 12-04-0584.

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

              Gurbir S. Grewal, Bergen County Prosecutor,
              attorney for respondent (Catherine A. Foddai,
              Senior Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Darren Ellis appeals from the March 31, 2015 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.                We affirm.
     A grand jury indicted defendant and his three co-defendants

for first-degree robbery, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1

(counts    one    to    five);   (2)    third-degree      criminal     restraint,

N.J.S.A. 2C:2-6 and N.J.S.A. 2C:13-2(a) (counts six to ten); (3)

second-degree theft of property in excess of $75,000, N.J.S.A.

2C:2-6    and    N.J.S.A.   2C:20-3     (count     eleven);    (4)   third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:2-6

and N.J.S.A. 2C:39-4(d) (count twelve); and (5) fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:2-6 and N.J.S.A.

2C:39-5(d) (count thirteen).           Separately, the grand jury indicated

defendant for fourth-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(2)    (count      nineteen);   and       third-degree    resisting   arrest,

N.J.S.A. 2C:29-2(a)(3)(a) (count twenty).                 The charges against

defendant stemmed from his involvement in the robbery of a jewelry

store.     Defendant used a sledgehammer to smash a glass case

containing jewelry, with two female customers standing nearby, and

struck    the    glass    case   with     such    force   that   it    broke   the

sledgehammer.

     Defendant pled guilty to one count of first-degree robbery

and one count of third-degree resisting arrest in exchange for the

State's agreement to recommend a twelve-year term of imprisonment

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,

and to dismiss the remaining charges. Prior to entering his guilty

                                          2                               A-5350-14T2
plea, the plea judge stated there was a pending motion to dismiss

the indictment "on the basis that [the robbery] might not be a

first-degree, it might be a second[-]degree offense[.]"       The judge

then warned defendant about the consequences of a guilty plea on

any motions as follows:

          [PLEA JUDGE]: . . . motions, even though they
          may have been filed, or could have been filed,
          will not be heard by this [c]ourt, and you
          can't complain about it. You can't come back
          at a later date and say my attorney didn't
          file this motion, you didn't do the right job,
          you know, the [j]udge should have heard this
          motion. You have to understand that while you
          may have discussed these motions with your
          attorney, they will not be heard. If they're
          filed they will be withdrawn, and if they
          weren't filed, they simply will not be heard.
          There will be no decision.      I want you to
          understand this because sometimes later on
          someone wakes up five or six years later and
          says, you know, my attorney didn't do his job.
          The bottom line is each of the attorneys have
          done their job.      They've gone over these
          proofs. They've filed whatever applications
          they have, and they're prepared to go today.
          But as a result of your entering a guilty plea,
          you're telling them you don't want to go any
          further. Is that understood Mr. Ellis?

          [DEFENDANT]:    Yes, sir.

     Defendant   then   entered   his   guilty   plea.   In   his   plea

allocution, he admitted that he entered the jewelry store with a

sledgehammer; two female customers were nearby when he used the

sledgehammer to break a glass case containing jewelry; and one of



                                   3                            A-5350-14T2
the female customers, M.M.,1 was put in fear of immediate bodily

injury when she saw the manner in which he used the sledgehammer.

Defendant also admitted that he left the store in an effort to

avoid   being   arrested   by   the   police   and    attempted      to     avoid

apprehension when later stopped by the police.                 The following

colloquy then occurred between defendant and plea counsel about

motions:

           [PLEA COUNSEL]: And consistent with the other
           questions, Mr. Ellis, you had filed, prior to
           my representation you had filed certain
           motions that would have been heard by the
           Court, correct?

           [DEFENDANT]:     Yes, sir.

           [PLEA COUNSEL]: And included in those motions
           was a motion to dismiss certain counts, and
           with regard to different counts of the
           indictment, correct?

           [DEFENDANT]:     Yes, sir.

           [PLEA COUNSEL]:   And do you acknowledge or
           understand what [the plea judge] told you,
           that this guilty plea will prevent those
           motions from going forward, and they will not
           be heard?

           [DEFENDANT]:     Yes, sir.

The plea judge found defendant entered the plea knowingly and

voluntarily     and   understood   the    charges    against   him    and      the

consequences of his plea.


1
    We use initials for the victim to protect her privacy.

                                      4                                   A-5350-14T2
     Defendant was sentenced in accordance with the plea agreement

to a twelve-year term of imprisonment subject to NERA.   Defendant

appealed his sentence.    We heard the appeal on our Excessive

Sentence Oral Argument Calendar and affirmed.   State v. Ellis, No.

A-1532-13 (App. Div. June 3, 2014).

     Defendant then filed a PCR petition based on the ineffective

assistance of trial counsel.   Defendant argued that trial counsel

should have requested a post-indictment probable cause hearing on

the weapons-based counts because he did not use the sledgehammer

as a deadly weapon, but rather, as a tool to break the glass case

containing the jewelry, and no reasonable person would believe he

or she was in fear of serious bodily harm.

     The PCR judge adjourned to allow PCR counsel time to find

authority permitting a post-indictment probable cause challenge.

At the next hearing, PCR counsel cited to Rule 3:10-2 to argue

that trial counsel failed to file a post-indictment motion to

dismiss the weapons-based charges in the indictment based on

insufficient evidence presented to the grand jury.   The PCR judge

noted that without the grand jury transcript, which PCR counsel

did not provide, he could not resolve this issue.

     The PCR judge denied the petition without an evidentiary

hearing, concluding defendant failed to establish the two prongs

of Strickland v. Washington, 466 U.S.   668, 687 104 S. Ct. 2052,

                                 5                          A-5350-14T2
2064, 80 L. Ed. 2d 674, 693 (1984). The judge found that defendant

had no right to a post-indictment probable cause hearing, waived

his right to have pre-trial motions presented when he pled guilty,

and gave a sufficient factual basis to support the first-degree

robbery charge.     This appeal followed.

     On appeal, defendant raises the following contentions:

          POINT I

               THE MATTER SHOULD BE REMANDED FOR A
               NEW PCR HEARING WITH NEW PCR COUNSEL
               BECAUSE     [DEFENDANT]     RECEIVED
               INEFFECTIVE    ASSISTANCE   OF   PCR
               COUNSEL.

          POINT II

               THE PCR COURT ERRED IN DENYING
               [DEFENDANT'S] CLAIM OF INEFFECTIVE
               ASSISTANCE OF [TRIAL] COUNSEL.

     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.), certif. denied, 162 N.J. 199 (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

                                  6                         A-5350-14T2
           must satisfy two prongs.     First, he must
           demonstrate that counsel made errors so
           serious that counsel was not functioning as
           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)
           (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,   138-39   (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;




                                     7                             A-5350-14T2
State v. Preciose, 129 N.J. 451, 462 (1992).    We discern no abuse

of discretion here.

     Defendant failed to satisfy the two Strickland prongs with

respect to both trial and PCR counsel.     At the plea hearing, the

plea judge advised defendant of a pending motion to dismiss the

indictment; defendant admitted that trial counsel had filed a pre-

trial motion to dismiss; and defendant acknowledged he understood

the consequences of a guilty plea on any motions.     Even if trial

counsel did not file a motion to dismiss, the plea transcript

shows that defendant knowingly and voluntarily waived his right

with respect to any motions, regardless of whether they were filed

or not. Providing the grand jury transcript would not have changed

defendant's waiver.

     Further, a motion to dismiss the indictment would have failed.

"An indictment is presumed valid and should only be dismissed if

it is 'manifestly deficient or palpably defective.'"      State v.

Feliciano, 224 N.J. 351, 380 (2016) (quoting State v. Hogan, 144

N.J. 216, 229 (1996)).     "A motion to dismiss is addressed to the

discretion of the trial court, and that discretion should not be

exercised except for 'the clearest and plainest ground[.]"     Ibid.

(citations omitted).     "At the grand jury stage, the State is not

required to present enough evidence to sustain a conviction."

Ibid. (citation omitted).     "As long as the State presents 'some

                                  8                          A-5350-14T2
evidence establishing each element of the crime to make out a

prima facie case,' a trial court should not dismiss an indictment."

Ibid. (quoting State v. Saavedra, 222 N.J. 39, 57 (2015)).

     N.J.S.A. 2C:15-1(a)(2) provides, in pertinent part, that "[a]

person is guilty of robbery if, in the course of committing a

theft, he . . . [t]hreatens another with or purposely puts him in

fear of immediate bodily injury."     "Robbery is a crime of the

. . . first-degree if in the course of committing the theft the

actor attempts to kill anyone, or purposely inflicts or attempts

to inflict serious bodily injury, or is armed with, or uses or

threatens the immediate use of a deadly weapon."   N.J.S.A. 2C:15-

1(b) (emphasis added).

          'Deadly weapon,' . . . is defined as 'any
          firearm or other weapon, device, instrument,
          material or substance, whether animate or
          inanimate, which in the manner it is used or
          intends to be used, is known to be capable of
          producing death or serious bodily injury or
          which in the manner it is fashioned would lead
          the victim reasonably to believe it to be
          capable of producing death or serious bodily
          injury.'

          [(State v. Rolon, 199 N.J. 575, 582 (2009)
          (emphasis in original) (quoting N.J.S.A.
          2C:11-1(c)).]

     Here, there was "some evidence" that defendant was in the

course of committing a theft while armed with a deadly weapon,

which, in the manner it was used, would lead the victim to


                                9                            A-5350-14T2
reasonably believe it was capable of serious bodily injury.     The

indictment, therefore, would not have been dismissed.

     Defendant's remaining argument, that PCR counsel violated

Rule 3:22-6(d) by failing to submit the grand jury transcript,

lacks sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

     Affirmed.




                               10                          A-5350-14T2
