                        NOT FOR PUBLICATION WITHOUT THE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-1351-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DANIEL J. SMITH,

     Defendant-Appellant.
___________________________

              Submitted March 1, 2017 – Decided March 17, 2017

              Before Judges Simonelli and Carroll.

              On appeal from the Superior Court of New
              Jersey, Law Division, Burlington County,
              Indictment No. 11-09-1145.

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

              Robert   D.   Bernardi,   Burlington   County
              Prosecutor, attorney for respondent (Jennifer
              Paszkiewicz,    Assistant   Prosecutor,    of
              counsel; Boris Moczula, on the brief).

PER CURIAM

        Defendant Daniel Smith appeals from the August 28, 2014 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.                We affirm.
         We derive the following facts from the record.        A grand jury

indicted defendant for second-degree sexual assault, N.J.S.A.

2C:14-2(c)(4) (count one); second-degree sexual assault, N.J.S.A.

2C:14-2(c)(1) (count two); third-degree endangering the welfare

of   a    child,   N.J.S.A.   2C:24-4(a)   (count   three);   second-degree

attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-

2(c)(4)     (count   four);   third-degree   attempted   endangering     the

welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count

five).      The charges stemmed from defendant's sexual assault of a

fourteen-year-old minor male, T.M., who defendant had perform

fellatio on him.

         On November 27, 2012, defendant pled guilty to count one in

exchange for the State's agreement to recommend a seven-year term

of imprisonment with no period of parole ineligibility and dismiss

the remaining charges. At the plea hearing, defendant acknowledged

that he faced up to ten years in prison if convicted of the

offense.     Defendant also acknowledged that Megan's Law applied to

his conviction; he would be required to register as a sex offender;

he would be subject to parole supervision for life; and he could

be subject to civil commitment at the conclusion of his sentence

if deemed to be a sexual offender who had not rehabilitated.

         At sentencing on March 20, 2013, the trial judge found three

aggravating factors: N.J.S.A. 2C:44-1(a)(3),"[t]he risk that the

                                      2                             A-1351-14T2
defendant will commit another offense;" N.J.S.A. 2C:44-1(a)(6),

"[t]he extent of the defendant's prior criminal record and the

seriousness of the offenses of which he has been convicted;" and

N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant

and others from violating the law." The judge found one mitigating

factor:   N.J.S.A.    2C:44-1(b)(11),     "[t]he   imprisonment     of   the

defendant   would    entail   excessive   hardship   to   himself   or   his

dependents[.]"      The judge sentenced defendant in accordance with

the plea agreement.

     Defendant did not appeal.          Instead, on September 23, 2013,

he filed a pro se PCR petition, arguing, in part, that defense

counsel rendered ineffective assistance at sentencing by failing

to investigate and request the following mitigating factors:

            (2) "[t]he defendant did not contemplate that
            his conduct would cause or threaten serious
            harm;"

            (4) "[t]here were substantial grounds tending
            to excuse or justify the defendant's conduct,
            though failing to establish a defense;"

            (5) "[t]he victim of the defendant's conduct
            induced or facilitated its commission;"

            (7) "[t]he defendant has no history of prior
            delinquency or criminal activity or has led a
            law-abiding life for a substantial period of
            time before the commission of the present
            offense;"

            (8) "[t]he defendant's conduct was the result
            of circumstances unlikely to recur;" and

                                    3                               A-1351-14T2
          (9), "[t]he character and attitude of the
          defendant indicate that he is unlikely to
          commit another offense[.]"1

          [N.J.S.A. 2C:44-1(b)(2), (4), (5), (7)-(9).]

     In an August 28, 2014 written opinion, the PCR judge denied

the petition. The judge found the petition was procedurally barred

by Rule 3:22-4(a), as defendant should have challenged his sentence

on direct appeal.   Addressing the merits, the judge found that

none of the mitigating factors applied for the following reasons:

          N.J.S.A. 2C:44-1(b)(2): the fact that T.M. was
          not forced to perform a sexual act was
          irrelevant, and defendant knew T.M. was
          underage before the sexual encounter began;

          N.J.S.A. 2C:44-1(b)(4) and (5): although T.M.
          posted an ad on Craig's list posing as an
          eighteen-year-old    male,    defendant   had
          reservations because he referred to T.M. as a
          "kid" and continued asking T.M. his age.
          Defendant's conduct was not excused even if
          he was misled as to T.M.'s real age. T.M. did
          not induce the crime's commissions. Defendant
          knew T.M. was underage. Defendant's conduct
          could not be induced by T.M. because the law
          is clear that T.M. could not have consented,
          as a matter of law, to defendant's actions;

          N.J.S.A. 2C:44-1(b)(7): defendant has a
          history of contact with the criminal justice
          system and was released from federal prison
          on federal charges less than six months prior
          to committing the present offense. Defendant
          is not a first-time offender or a person who
          has   not  sustained   a   conviction  in   a

1
  Defendant also argued that counsel failed to request mitigating
factor N.J.S.A. 2C:44-1(b)(11), but the court found that
mitigating factor.

                                4                           A-1351-14T2
          substantial amount of time prior to the
          present offense. Defendant has 2001 and 2003
          disorderly   persons  convictions   and  was
          convicted in federal court in 2009;

          N.J.S.A. 2C:44-1(b)(8): after the first sexual
          encounter with T.M., defendant reached out to
          T.M. for a second meeting. Absent his arrest,
          that   second   meeting  would   likely   have
          occurred; and

          N.J.S.A. 2C:44-1(b)(9): there was no evidence
          of defendant's character and attitude to show
          he was unlikely to commit another offense.
          Although defendant contended that he would be
          able to secure employment upon his release
          from prison, this alone would not have
          supported a finding of this mitigating factor.
          Defendant had not taken responsibility for his
          actions.    During his interview with the
          police, he changed his story after originally
          maintaining that he rejected advances by T.M.

On appeal, defendant raises the following contentions:

          POINT I

          POST-CONVICTION RELIEF    IS   NOT   PROCEDURALLY
          BARRED BY RULE 3:22-4.

          POINT II

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

     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


                                5                             A-1351-14T2
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

the issues necessitates a hearing. R. 3:22-10(b); State v. Porter,

216 N.J. 343, 355 (2013); State v. Preciose, 129 N.J. 451, 462-63

(1992). To establish a prima facie claim of ineffective assistance

of counsel, the defendant

          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).]

With respect to a guilty plea, our Supreme Court has explained

that

          [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

                                6                          A-1351-14T2
            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
            (2009) (alterations in original) (quoting
            State v. DiFrisco, 137 N.J. 434, 457 (1994)).]

     We    agree   with    defendant   that   his   claim   of   ineffective

assistance of counsel at sentencing was not procedurally barred

by Rule 3:22-4.     We generally adhere to the practice of deferring

claims of ineffective assistance of counsel to post-conviction

relief proceedings.        State v. Castagna, 187 N.J. 293, 316 (2006).

Nevertheless, we have considered defendant's contention in Point

II in light of the record and applicable legal principles and

conclude it is without sufficient merit to warrant discussion in

a written opinion.        R. 2:11-3(e)(2).    We affirm substantially for

the reasons expressed by the PCR judge in her well-reasoned written

opinion.    Even if counsel had requested the mitigating factors

defendant stated in his PCR petition, none of them are supported

by the record.     State v. Bieniek, 200 N.J. 601, 608 (2010); State

v. Dalziel, 182 N.J. 494, 505 (2005); State v. Roth, 95 N.J. 334,

356-64 (1984).

     Affirmed.




                                       7                             A-1351-14T2
