                                NOT FOR PUBLICATION WITHOUT THE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-1887-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANTHONY L. SLEDGE, a/k/a
SLEDGE, LEWIS SLEDGE, and
ANTHONY LEWIS,

     Defendant-Appellant.
______________________________

                    Submitted October 17, 2018 – Decided August 13, 2019

                    Before Judges Fuentes and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 11-04-0765.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew Robert Burroughs, Designated
                    Counsel, on the brief).

                    Theodore N. Stephens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Anthony Sledge appeals from an order entered by the Law

Division, Criminal Part denying his post-conviction relief (PCR) petition. We

affirm.

      On April 19, 2011, an Essex County grand jury indicted defendant and

charged him with first degree robbery, N.J.S.A. 2C:15-1, second degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1), second degree attempted sexual

assault, N.J.S.A. 2C:5-1, N.J.S.A. 2C:14-2(c)(1), third degree aggravated

criminal sexual contact, N.J.S.A. 2C:14-3(a)(3), third degree criminal restraint,

N.J.S.A. 2C:13-2, fourth degree stalking, N.J.S.A. 2C:12-10(b), and fourth

degree impersonating a police officer, N.J.S.A. 2C:28-8. On November 29,

2011, defendant pled guilty to first degree robbery and third degree aggravated

criminal sexual contact. In return, the prosecutor agreed to recommend the court

sentence defendant to a term of imprisonment of six years, subject to an eighty-

five percent period of parole ineligibility and five years of parole supervision as

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

      On March 23, 2012, before the sentencing hearing, defendant retained new

counsel and moved to withdraw his guilty plea. On June 25, 2012, the court

reviewed the motion under the standards in State v. Slater, 198 N.J. 145, 157-58


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                                        2
(2009), and found no grounds to allow defendant to withdraw his guilty plea.

On November 30, 2012, the court sentenced defendant in accordance with the

plea agreement. On January 31, 2013, defendant appealed the sentence imposed

by the court and the denial of his motion to withdraw his guilty plea under the

summary procedural process codified in Rule 2:9-11. We affirmed the trial

court's decision in an order entered on May 13, 2013.

      Defendant filed this pro se PCR petition on May 6, 2015. Defendant

alleged his first trial counsel was ineffective when he failed to file a motion t o

suppress. The vicinage's Assignment Judge entered an order that same day

assigning counsel to represent defendant in the prosecution of his PCR petition.

The matter came for oral argument before the PCR judge on February 16, 2016.

PCR counsel argued that defendant was entitled to an evidentiary hearing based

on the following statement that is part of the order entered by this court

upholding the trial court's denial of defendant's Slater motion:

            Finally, we note that defendant's arguments from the
            [t]rial [c]ourt suggests the attorney who represented
            him at the time of his plea provided ineffective
            assistance.

            Because these claims, [mis-advise] about the length of
            the sentence that was accurately described on the record
            at the time of the plea, and the [attorney's] failure to
            review discovery with defendant rest on matters outside


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                                        3
            the record, if defendant wishes to assert them he should
            do so by way of a petition for post[-]conviction relief.

      The judge asked PCR counsel if this "reference to the Appellate Division"

should be construed as "mandating that there be a hearing . . . [.]" PCR counsel

responded that it was his position that "there should be an evidentiary hearing

based clearly . . . inferentially . . . if not stated, that since the matters were

outside of the record that . . . a hearing should be held." The PCR judge rejected

this interpretation and stated: "the Appellate Court is not mandating that

I . . . conduct a hearing, only that these PCR matters be considered by virtue of

PCR as opposed to by way of appeal[.]" The State relied on its brief.

      On July 17, 2017, the PCR judge considered additional oral argument

from defendant's new counsel. Defendant's new PCR counsel argued the request

for relief was based on defendant's observation of his trial counsel "to be in an

intoxicated or bizarre state." According to defendant, his attorney's intoxicated

or dysfunctional state of mind prevented him from properly investigating the

case and filing motions on his behalf. Defendant also alleged his trial attorney

promised him he would not serve more than three years imprisonment subject to

NERA.     PCR counsel argued that during the time of plea negotiations,

defendant's trial attorney was "admitted in[to] Hackensack Hospital for his . . .

problems with alcohol and drugs or whatever it was that he was seeking

                                                                          A-1887-16T4
                                        4
assistance for at the time."     PCR counsel also claimed that trial counsel

eventually "surrender[ed] his law license." Finally, PCR counsel alleged that

trial counsel should have requested an evidentiary hearing to challenge the

search warrant pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

      The State refuted all of PCR counsel's claims. The prosecutor emphasized

that defendant did not present any competent evidence to support his claim that

his trial attorney was mentally unstable and intoxicated at the time he

represented him during plea negotiations and at the plea hearing.               The

prosecutor characterized as "baseless" defendant's claim that his trial counsel

received treatment for drug addiction. Because defendant did not establish a

prima facie case of ineffective assistance under prong one of Strickland v.

Washington, 466 U.S. 668 (1984), the State argued he was not entitled to an

evidentiary hearing.

      In an order-opinion dated August 31, 2017, the PCR Judge found

defendant did not make out a prima facie case of ineffective assistance of trial

counsel. The judge distilled defendant's argument in support of PCR to five

allegations against trial counsel: (1) bizarre conduct; (2) failure to investigate

the case; (3) failure to file a motion attacking the validity of the search warrant;

(4) the guilty plea was not made in a knowing and voluntary manner; and (5)


                                                                            A-1887-16T4
                                         5
these cumulative errors deprived him of effective assistance of counsel. The

PCR Judge addressed each allegation and found no legal basis or factual support

to conduct an evidentiary hearing.

      With respect to the allegations of inebriation or mental instability against

the trial counsel, the PCR Judge specifically noted that "the Appellate Division

also found no merit to this argument in light of [defendant's] acknowledgement

of the anticipated sentence on the record at the time of the plea." The judge

found defendant's allegations of trial counsel's failure to investigate the case and

his attacks on his guilty plea were equally unsupported by the record. The PCR

Judge ultimately rejected the remaining arguments as baseless and legally

without merit.

      Defendant now raises the following arguments in this appeal.

            POINT I

            AS DEFENDANT RECEIVED                     INEFFECTIVE
            ASSISTANCE OF COUNSEL

                   (1) Trial counsel's bizarre conduct denied
                   Petitioner a fair and reliable proceeding.

                   (2) Defendant's attorney          failed   to
                   investigate the case.

                   (3) Trial counsel failed to file any motions
                   on behalf of his client.


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                                         6
                   (4) The guilty plea was not knowingly and
                   intelligently made because pela [sic]
                   counsel failed to provide discovery and
                   review the case with him.

                   [(5)] Trial counsel's cumulative errors
                   denied Defendant effective . . . assistance
                   of counsel as guaranteed by the Sixth
                   Amendment.

            POINT II

            AS THERE ARE GENUINE ISSUES OF MATERIAL
            FACTS IN DISPUTE, AN EVIDENTIARY [SIC]
            WAS ENTITLED TO AN EVIDENTIARY HEARING.

      To prevail on a claim of ineffective assistance of counsel under the two-

prong standard in Strickland, defendant must first demonstrate that his trial

counsel's performance was deficient. 466 U.S. at 687. Second, he must show

there exists "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at 694. Our

Supreme Court has also held that a PCR court should exercise its discretionary

authority to conduct an evidentiary hearing under Rule 3:22-10 when the

material facts underpinning defendant's claim of ineffective assistance of

counsel lie outside the trial record and require the attorney's testimony. State v.

Preciose, 129 N.J. 451, 462 (1992).




                                                                           A-1887-16T4
                                        7
      Here, we are satisfied the PCR court correctly found defendant did not

establish a prima facie case of ineffective assistance of trial counsel. The judge

did not abuse his discretion in concluding defendant was not entitled to an

evidentiary hearing. We affirm substantially for the reasons expressed by the

PCR Judge in his memorandum of opinion and order dated August 31, 2017.

      Affirmed.




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