                        NOT FOR PUBLICATION WITHOUT THE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-1233-15T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANDREAS MOTLEY,

        Defendant-Appellant.

__________________________________________

              Submitted March 16, 2017 – Decided July 27, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              03-06-2173.

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

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Frank
              J. Ducoat, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
    Defendant appeals from an October 7, 2015 order denying his

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

hearing.   For the reasons that follow, we affirm.

    In 2005, defendant pled guilty to first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1); first-degree robbery,

N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and

third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b).

    During the plea colloquy, defendant admitted he and three

others conspired to commit a robbery in a Mini Mart.   Defendant

carried out the robbery, during the course of which he shot and

killed a store clerk.   At the time, defendant was seventeen

years of age.   Defendant was sentenced, in the aggregate, to a

twenty-five-year term of imprisonment, with an eighty-five

percent period of parole ineligibility.

    Defendant appealed his sentence, which was reviewed before

an Excessive Sentence Oral Argument (ESOA) Panel. Among other

things, defendant contended the court placed insufficient weight

upon mitigating factors twelve, N.J.S.A. 2C:44-1(b)(12)

(willingness of the defendant to cooperate with law enforcement

authorities), and thirteen, N.J.S.A. 2C:44-1(b)(13) (the conduct
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of a youthful defendant was substantially influenced by another

person more mature than defendant).

    We rejected this argument and remanded for resentencing.

Our instruction to the sentencing court was that it was not to

consider aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature

and circumstance of the offense), and two, N.J.S.A. 2C:44-

1(a)(2) (gravity and seriousness of harm inflicted on the

victim).    We further instructed the sentencing court to

recalculate jail credits.    See R. 3:21-8.

    On remand, without holding a hearing, the court imposed the

same sentence and reduced the number of jail credits.    Defendant

appealed the sentence, which was again reviewed before an ESOA

Panel.   Defendant did not raise the alleged failure of the court

to properly consider any mitigating factors.   We remanded for

resentencing with instructions the sentencing court hold a

hearing to allow defendant to be present and, further,

reconsider the jail credits to be awarded to him.

    In April 2012, the court imposed the same sentence, but

increased the number of jail credits to which defendant was

entitled.    During the sentencing hearing, the court commented

mitigating factors twelve and thirteen were taken into

consideration by the State when it formulated its plea offer,

which in turn influenced the court's willingness to accept the
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State's recommendation.   The court then remarked it did not find

any mitigating factors.   Defendant did not file a direct appeal

of this sentence.

    In March 2015, defendant filed a PCR petition.    Designated

counsel subsequently filed a brief on defendant's behalf.

Defendant contended his resentencing attorney was ineffective

because she failed to argue mitigating factors twelve and

thirteen applied, as well as challenge the aggravating factors

advocated by the State.   On October 7, 2015, the PCR court

denied defendant's petition for PCR, without holding an

evidentiary hearing.

    On appeal, defendant presents the following issues for our

consideration:

         POINT I – THE PCR COURT ERRED IN RULING THAT
         MR. MOTLEY'S CLAIM OF INEFFECTIVE ASSISTANCE
         OF COUNSEL AT SENTENCING WAS PROCEDURALLY
         BARRED BECAUSE THE CLAIM COULD HAVE BEEN
         RAISED ON DIRECT APPEAL.

         POINT II – THE PCR COURT ERRED IN DENYING
         MR. MOTLEY'S CLAIM THAT TRIAL COUNSEL WAS
         INEFFECTIVE FOR FAILING TO ARGUE FOR
         APPLICABLE MITIGATING FACTORS AT SENTENCING.

Having reviewed the briefs and the record, we are unpersuaded by

either of defendant's arguments and affirm the denial of his

PCR petition.



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                                                          A-1233-15T3
    The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was

formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court

in State v. Fritz, l05 N.J. 42 (l987).    In general, in order to

prevail on a claim of ineffective assistance of counsel,

defendant must meet the following two-prong test: (l) counsel

made errors so egregious he or she was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the errors prejudiced defendant's

rights to a fair trial such that there exists a "reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064,

2068, 80 L. Ed. 2d at 693, 698.

    If seeking to set aside a guilty plea based upon

ineffective assistance of counsel, the second prong a defendant

must meet is "there is a reasonable probability that, but for

counsel's errors, [the defendant] would not have pled guilty but

would have insisted on going to trial."    State v. Nuñez-Valdéz,

200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J.

434, 457 (1994)).


                                  5
                                                           A-1233-15T3
    Here, defendant argues he was denied the effective

assistance of counsel because, at his second and final

sentencing hearing, his attorney failed to argue mitigating

factors twelve and thirteen applied, an omission he claims was

prejudicial.

    First, defendant's sentencing arguments are not appropriate

for PCR because they could have been but were not raised on

direct appeal.    R. 3:22-4(a).   Second, generally, the

consideration of aggravating and mitigating factors are "not

cognizable claims on post-conviction relief" because they relate

to the excessiveness of the sentence, rather than to its

legality.    State v. Acevedo, 205 N.J. 40, 46-47 (2011) (citing

State v. Flores, 228 N.J. Super. 586, 596-97 (App. Div. 1988),

certif. denied, 115 N.J. 78 (1989)).    Third and most important,

it is evident from the record the court did consider these two

factors.

    Because defendant failed to make a prima facie showing of

ineffectiveness of counsel within the Strickland-Fritz test, the

PCR court correctly concluded an evidentiary hearing was not

warranted.   See State v. Preciose, 129 N.J. 452, 462-63 (1992).

    Affirmed.




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