                                 NOT FOR PUBLICATION WITHOUT THE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-1552-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LERON YANCEY, a/k/a LAMAR
YANCY, HASON BARRONS,
LANCE COOPER, LARON
HANSON, LARON WASHINGTON,
and LARON YANCEY,

     Defendant-Appellant.
_______________________________

                   Submitted January 7, 2019 – Decided April 3, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 09-11-3088
                   and 09-11-3090.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Tiffany M. Russo,
            Special Deputy Attorney General/Acting Assistant
            Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant pled guilty to multiple crimes under one indictment, the most

serious being first-degree offenses of aggravated manslaughter and attempted

murder, and under another indictment, he pled guilty to second-degree certain

persons not to possess a weapon. He was then sentenced to an aggregate prison

term of eighteen years subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2. After his appeal for an excessive sentence was denied, he filed a

post-conviction relief (PCR) petition charging that he received ineffective

assistance from both his trial counsel and appellate counsel.        We affirm

substantially for the reasons set forth by the PCR judge in his oral and written

decisions denying relief without an evidentiary hearing.

                                       I

      We begin by summarizing defendant's guilty pleas, which were entered

on the same date. In Indictment 09-11-3090, defendant admitted he had an

argument on April 15, 2008, with seventeen-year-old Jahad Andrews regarding

a drug turf dispute in the Newark neighborhood where defendant resided. Later

that day, defendant returned home and saw Jahad, with a handgun, and Farad



                                                                        A-1552-17T3
                                       2
Andrews. As Jahad and Farad fled, defendant fired shots at them with a 40-

caliber handgun. Jahad was shot in the buttocks and later died from his injuries.

      Under the same indictment, defendant admitted that on May 29, 2009, he

was driving a stolen car when he eluded police in a high-speed chase through

three municipalities that ended with defendant crashing into other cars and

causing injury to a woman. He also confessed to resisting arrest.

      Defendant pled guilty to an amended count of first-degree aggravated

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

2C:5-1 and 2C:11-3; second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a); third-degree receiving stolen property, N.J.S.A.

2C:20-7; second-degree unlawful possession of a weapon – a handgun, N.J.S.A.

2C:39-5(b); two counts of second-degree eluding a law enforcement officer –

failure to stop, N.J.S.A. 2C:29-2(b); second-degree aggravated assault causing

bodily injury while eluding, N.J.S.A. 2C:12-1(b)(6); and third-degree resisting

arrest by flight, N.J.S.A. 2C:29-2(a). The charge of first-degree murder was

amended to first-degree aggravated manslaughter, and the charge of conspiracy

to commit murder was dismissed.




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                                       3
      In Indictment 09-11-3088, defendant pled guilty to second-degree certain

persons not to have a weapon (45-caliber handgun), N.J.S.A. 2C:39-7(b). He

had no permit for the weapon.

      The same judge who accepted defendant's guilty pleas also sentenced him.

In accordance with the plea agreement, defendant was given concurrent terms

under the two indictments, and after merger, as noted, was sentenced to an

aggregate eighteen-year prison term subject to NERA.

      Defendant filed a direct appeal, only challenging his sentence.           An

excessive sentence panel of this court affirmed his sentence. See State v. Leron

Yancey, No. A-6070-12 (App. Div. Oct. 24, 2013).

      Almost three years later, defendant filed a PCR petition citing that both

his trial counsel and appellate counsel provided ineffective assistance . He

contended trial counsel was ineffective for failing to interview two witnesses,

Shahadah Smith and Alicia Woodward, and for failing to argue for a lesser

sentence based on the mitigating circumstances of self-defense. He also claimed

that trial counsel convinced him to plead guilty rather than go to trial. Defendant

contended appellate counsel was ineffective for failing to confer with him

regarding the issues to be raised on appeal, which limited his appeal to an




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                                        4
excessive sentence. The PCR judge, who had previously accepted defendant's

plea and sentenced him, denied defendant relief without an evidentiary hearing.

                                       II

      Defendant appeals, arguing:

            POINT I

            TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
            FOR FAILING TO PROPERLY REVIEW HIS CASE,
            FOR FAILING TO PROVIDE INFORMATION, AND
            FOR CONVINCING DEFENDANT TO ABANDON
            HIS ORIGINAL DESIRE TO GO TO TRIAL.

            POINT II

            TRIAL COUNSEL WAS INEFFECTIVE FOR
            FAILING TO RAISE ISSUES AT SENTENCING
            REGARDING SELF-DEFENSE.

            POINT III

            DEFENDANT    WAS    DENIED   EFFECTIVE
            ASSISTANCE OF APPELLATE COUNSEL

      To show ineffective assistance of counsel, defendant must meet the two-

pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) and

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). "'First, the

defendant must show that counsel's performance was deficient.'"         State v.

Taccetta, 200 N.J. 183, 193 (2009) (quoting Fritz, 105 N.J. at 52). "'Second, the



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                                       5
defendant must show that the deficient performance prejudiced the defense.'"

Ibid.

        In considering a claim of ineffective assistance concerning a guilty plea,

defendant must satisfy a modified Strickland standard:

              When a guilty plea is part of the equation, . . . "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. Nunez-Valdez, 200 N.J. 129, 139 (2009)
              (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)
              (citations omitted) (second alteration in original)).]

        Moreover, to obtain relief under the second prong, "a petitioner must

convince the court that a decision to reject the plea bargain would have been

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

(2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, (2000)).

        An evidentiary hearing for PCR is only required when the defendant has

made a prima facie showing of entitlement to such relief by demonstrating "a

reasonable likelihood that his or her claim will ultimately succeed on the

merits." State v. Marshall, 148 N.J. 89, 158 (1997) (citing State v. Preciose, 129




                                                                          A-1552-17T3
                                         6
N.J. 451, 463 (1992)). A petitioner must establish the right to relief by a

preponderance of the evidence. Preciose, 129 N.J. at 459.

         "[B]ald assertions" of ineffective assistance are not enough. State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A petitioner "must

allege     facts   sufficient   to   demonstrate   counsel's   alleged   substandard

performance[,]" and the court must view the facts alleged in the light most

favorable to the petitioner. Ibid. PCR petitions must be "accompanied by an

affidavit or certification by the defendant, or by others, setting forth with

particularity the facts that he wished to present." State v. Jones, 219 N.J. 298,

312 (2014).

         Claims of ineffective assistance of appellate counsel must assert that

errors existed at the trial level that could have been ascertained by appellate

counsel's review of the record, but were never raised as issues on appeal. See

State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on

ineffective assistance of appellate counsel, it must be established that appellate

counsel failed to raise an issue that would have constituted reversible error on

direct appeal. See id. at 361. Appellate counsel will not be found ineffective if

counsel's failure to appeal the issue could not have prejudiced the defendant

because the appellate court would have found either, that no error had occurred


                                                                             A-1552-17T3
                                           7
or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State

v. Harris, 181 N.J. 391, 499 (2004).

      Guided by these principles, we find no merit to defendant's contentions

and we affirm substantially for the reasons set forth by the judge in his oral and

written decision. The judge determined that defendant failed to submit an

affidavit, certification, or other competent evidence to establish what an

adequate investigation by trial counsel would have revealed to support his claim

that he fired gunshots at the fleeing Andrews in self-defense. There was also no

showing of how the witnesses would have aided the defense. The judge further

determined the record clearly showed trial counsel acknowledged at sentencing

that a legal self-defense claim was not available, but he still argued for a lighter

sentence than the plea agreement because defendant was outside his own home

when he was confronted and fired his gun. The judge reasoned that the fact

counsel's argument seeking mitigation of the sentence was rejected, "does not

render counsel's assistance ineffective." Thus, defendant failed to establish a

prima facie case of ineffective assistance of counsel.

      With respect to defendant's assertion that trial counsel convinced him to

plead guilty and abandon his desire to go trial, we agree with the State that his

brief makes no argument to support the assertion.          Thus, the argument is


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                                         8
abandoned. See Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R.

2:6-2 (2019); see also Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.

Div. 2011) ("An issue not briefed on appeal is deemed waived.").

      Yet, in considering the assertion, we conclude it is without merit. Given

the global resolution of two separate indictments, including the amendment of

first-degree murder to first-degree manslaughter and the dismissal of first-

degree conspiracy to commit, with concurrent sentences, the plea bargain was a

favorable outcome and a rational decision for defendant. Furthermore, there

were no affidavits, certifications, or other competent evidence to support the

contention that his plea colloquy was untruthful. The record unequivocally

indicates that his plea was entered freely, that he was satisfied with the services

of trial counsel, and that he wanted the judge to accept his guilty plea.

      As for appellate counsel, the judge properly determined defendant failed

to show that counsel should have raised an argument on appeal that was not

raised. Defendant merely makes a "bald assertion" of ineffectiveness without

identifying a specific argument that should have been raised on direct appeal.

      Affirmed.




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