                                NOT FOR PUBLICATION WITHOUT THE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-3489-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROY DEPACK,
a/k/a ROY DEPACK JR.,
ROY JOHN DEPACK,
RAY SORIANO,
MICHAEL A. DEPACK,
and DENNIS DEPACK,

     Defendant-Appellant.
__________________________

                    Submitted May 11, 2020 – Decided July 8, 2020

                    Before Judges Ostrer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 12-04-0693.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Joseph Anthony Manzo, Designated
                    Counsel, on the brief).
            Esther Suarez, Hudson County Prosecutor, attorney for
            respondent (Stephanie Davis Elson, Assistant
            Prosecutor, on the brief).

PER CURIAM

      Defendant, Roy DePack, appeals from the February 15, 2019 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. After reviewing the record in light of the applicable legal principles,

we affirm substantially for the reasons set forth in the PCR court's written

opinion.

      Defendant raises the following contentions for our consideration:

            POINT I

            BECAUSE     DEFENSE     COUNSEL    WAS
            INEFFECTIVE BY NOT EXPLAINING TO THE
            DEFENDANT THE FULL LEGAL CONSEQUENCES
            OF HIS PLEA TO ISSUING A BAD CHECK, THE
            COURT ERRED IN DENYING POST-CONVICTION
            RELIEF    WITHOUT     CONDUCTING     AN
            EVIDENTIARY HEARING.

            POINT II

            BECAUSE THE PETITIONER MADE A PRIMA
            FACIE SHOWING OF INEFFECTIVE ASSISTANCE
            OF TRIAL COUNSEL, THE COURT MISAPPLIED
            ITS   DISCRETION   IN  DENYING     POST-
            CONVICTION RELIEF WITHOUT CONDUCTING
            A FULL EVIDENTIARY HEARING.



                                                                          A-3489-18T1
                                       2
      The PCR court's opinion recounts the relevant facts, and they need not be

repeated at length in this opinion. Defendant pled guilty to passing bad checks,

in violation of N.J.S.A. 2C:21-5, in connection with a scheme to defraud the

victim of several thousand dollars. He was sentenced in accordance with a plea

agreement to a two-year term of noncustodial probation.

      At the time of sentencing, defendant was already on supervised release for

a federal wire fraud conviction. The term of probation for his bad check

conviction was ordered to run concurrently with his federal supervised release.

Defendant now contends that his trial counsel rendered ineffective assistance by

failing to explain to him that he would be required to report simultaneously to

two separate probation authorities. He claims that he would not have pled guilty

had he known that he would be subjected to the burden of dual reporting.

      We begin our analysis by acknowledging the legal principles that govern

this appeal. Post-conviction relief serves the same function as a federal writ of

habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning

for PCR, a defendant must establish, by a preponderance of the credible

evidence, that he or she is entitled to the requested relief.    Ibid. (citations

omitted). The defendant must allege and articulate specific facts that "provide




                                                                         A-3489-18T1
                                       3
the court with an adequate basis on which to rest its decision." State v. Mitchell,

126 N.J. 565, 579 (1992).

      Both the Sixth Amendment of the United States Constitution and Article

1, paragraph 10 of the State Constitution guarantee the right to effective

assistance of counsel at all stages of criminal proceedings.         Strickland v.

Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.

759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a

violation of the right to the effective assistance of counsel, a defendant must

meet the two-part test articulated in Strickland. Fritz, 105 N.J. at 58. "First, the

defendant must show that counsel's performance was deficient. . . . Second, the

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

Strickland, 466 U.S. at 687.

      To meet the first prong of the Strickland test, a defendant must show "that

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

guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a

"strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. at 689.

      The second prong of the Strickland test requires the defendant to show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,


                                                                            A-3489-18T1
                                         4
a trial whose result is reliable." Strickland, 466 U.S. at 687. Counsel's errors

must create a "reasonable probability" that the outcome of the proceedings

would have been different than if counsel had not made the errors. Id. at 694.

          This assessment is necessarily fact-specific to the context in which the

alleged errors occurred. For example, when, as in this case, a defendant seeks

"[t]o set aside a guilty plea based on ineffective assistance of counsel, a

defendant 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.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009)

(first alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)

(second alteration in original)). Defendant must also show doing so "would have

been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372

(2010).

      A defendant may prove that an evidentiary hearing is warranted to develop

the factual record in connection with an ineffective assistance claim. Preciose,

129 N.J. at 462–63. The PCR court should grant an evidentiary hearing when

(1) a defendant is able to prove a prima facie case of ineffective assistance of

counsel, (2) there are material issues of disputed fact that must be resolved with

evidence outside of the record, and (3) the hearing is necessary to resolve the


                                                                           A-3489-18T1
                                         5
claims for relief. Id. at 462; R. 3:22-10(b). "[C]ourts should view the facts in

the light most favorable to a defendant to determine whether a defendant has

established a prima facie claim." Id. at 462–63.

      To meet the burden of proving a prima facie case, a defendant must show

a reasonable likelihood of success under the Strickland test. Preciose, 129 N.J.

at 463. Importantly for purposes of this appeal, "[i]n order to establish a prima

facie claim, a petitioner must do more than make bald assertions that [he or she]

was denied the effective assistance of counsel." State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). The petitioner must allege specific facts

sufficient to support a prima facie claim. Ibid. Furthermore, the petitioner must

present these facts in the form of admissible evidence. In other words, the

relevant facts must be shown through "affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification." Ibid.

      Applying these foundational principles, we conclude defendant's

contentions lack sufficient merit to warrant extensive discussion. As the PCR

court noted, the record clearly shows that defendant was properly advised that

the state and federal sentences would be served concurrently. We do not believe

that defense counsel was obligated under the Sixth Amendment to further

explain the reporting procedures of probation in the context of his ongoing


                                                                         A-3489-18T1
                                       6
supervised release responsibilities. 1 Counsel was not required, in other words,

to advise defendant that there would be dual reporting. Defendant has thus failed

to show that counsel's performance in this regard fell below the range of

reasonable assistance. Strickland, 466 U.S. at 687.

      Even if we were to assume that counsel's advice with respect to the State's

plea offer somehow was constitutionally deficient, defendant has not suffered

prejudice within the meaning of the second Strickland prong. 466 U.S. at 694.

We reject the notion that having to report simultaneously to two different

probation-type authorities constitutes prejudice for purposes of Strickland

analysis. Relatedly, it strains credulity that defendant would have rejected such

a favorable plea bargain on the grounds that he would have to report to two

separate supervision authorities. That decision would have been objectively

unreasonable.   Thus, we conclude there is no reasonable probability that

defendant would have rejected the plea agreement offered to him based upon the




1
   The level and periodicity of reporting conditions imposed by a probation
department is vested in the agency's discretion. The frequency of reporting,
moreover, can change over the term of probation reflecting a probationer's
progress in rehabilitation. Accordingly, there is no way a defense attorney can
know at the time of a plea hearing how often or by what means a client will have
to report to his or her probation officer.
                                                                         A-3489-18T1
                                       7
inconvenience of abiding by dual reporting obligations. Nunez-Valdez, 200 N.J.

at 139 (citing DiFrisco, 137 N.J. at 457).

      We note that in 2017, defendant was charged yet again by federal prosecutors

with wire fraud. We appreciate that defendant is highly motivated in his current

petition to vacate his state law fraud conviction to avoid enhanced punishment under

the Federal Sentencing Guidelines. The determination of the likelihood that a

defendant would reasonably have rejected a plea offer had it not been for counsel's

ineffective assistance, however, is measured at the time of the guilty plea, not years

later after defendant is charged with a new crime.2

      In sum, even viewing the defendant's factual assertions in the light most

favorable to him, he has failed to establish a prima facie case sufficient to

warrant an evidentiary hearing, much less to vacate his guilty plea. To the extent

we have not addressed them, any other arguments raised by defendant in this appeal

lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).



2
   In his PCR petition, defendant argued that his trial counsel was ineffective by
failing to advise him that he could face enhanced punishment were he to be convicted
of a future federal crime. The PCR court swiftly and properly rejected that
contention. See State v. Wilkerson, 321 N.J. Super. 219, 227 (App. Div. 1999)
(holding there is no constitutional requirement that a defense attorney must advise a
client that if he or she commits future criminal offenses there may be adverse
consequences by way of enhancement of punishment).


                                                                              A-3489-18T1
                                          8
Affirmed.




                A-3489-18T1
            9
