                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-0684-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

COREY BATTS, a/k/a JAMIL
WARD,

     Defendant-Appellant.
________________________

                    Submitted October 23, 2018 – Decided November 30, 2018

                    Before Judges Rothstadt and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Accusation No. 07-09-1302
                    and Indictment Nos. 06-12-3945 and 08-06-1690.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique Moyse, 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 Corey Batts appeals from a June 29, 2016 order denying his

petition for post-conviction relief (PCR) following an evidentiary hearing. In

his petition, defendant contended that he should be allowed to withdraw guilty

pleas he entered in 2007, and that his counsel was ineffective in failing to move

to withdraw those pleas. We disagree and affirm.

                                         I

      Over the course of several years, defendant was charged with a number of

crimes. In 2006, defendant was indicted for four crimes related to his possession

of heroin. In 2007, defendant was charged in an accusation with six crimes

related to his possession of heroin.

      In September 2007, defendant pled guilty to two counts of third-degree

possession of heroin with intent to distribute within a school zone, N.J.S.A.

2C:35-7, and one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).

One of the pleas for possession with intent to distribute was a charge from the

2006 indictment, while the other two pleas were charges from the 2007

accusation. In the plea agreement, the State agreed to recommend an aggregate

sentence of five years in prison with three years of parole ineligibility.




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                                         2
      At the time that defendant pled guilty in 2007, he was also facing federal

criminal charges.   In connection with his 2007 pleas, defendant agreed to

cooperate with state authorities with the understanding that his successful

cooperation might result in a lower sentence.        Defendant also agreed to

cooperate with federal authorities.    A condition of defendant's cooperation

agreement with the State was that he not engage in further criminal activity.

After pleading guilty in September 2007, defendant was released and given an

extended sentencing date so that he could provide cooperation.

      In January 2008, defendant was found to be in possession of a stolen car.

He was arrested and charged with receiving stolen property. As a result of that

arrest and charge, the State terminated its cooperation agreement with

defendant.

      In April 2009, defendant pled guilty to third-degree receiving stolen

property, N.J.S.A. 2C:20-7. In the related plea agreement, the State agreed to

recommend that defendant be sentenced to three years in prison. The State also

agreed to recommend that the sentence run concurrent to defendant's pending

sentences for the guilty pleas he entered in 2007.

      On August 4, 2009, defendant was sentenced on all four of his pending

state convictions. For his convictions for possession of heroin with intent to


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                                       3
distribute in a school zone, defendant was sentenced to five years in prison with

three years of parole ineligibility.   For his conviction for resisting arrest,

defendant was sentenced to eighteen months in prison. For his conviction for

receiving stolen property, defendant was sentenced to three years in prison. All

of those sentences were run concurrent to each other. Those sentences were also

to run concurrent to any federal sentence.

      Defendant did not file a direct appeal from any of his convictions or

sentences imposed in 2009. Instead, in May 2014, defendant filed a petition for

PCR. He was assigned counsel. The PCR court heard oral argument and granted

an evidentiary hearing. Following that hearing, on June 29, 2016, the PCR court

entered an order denying defendant's petition.

      At the PCR hearing, defendant testified and asserted that he should be

allowed to withdraw the guilty pleas entered in 2007 because his cooperation

with federal authorities prevented him from cooperating with state authorities.

Defendant also contended that he was not given time to complete his cooperation

agreement with the State because he was working with federal authorities and

he was then arrested for receiving stolen property.

      The PCR court rejected defendant's arguments. The court found that

defendant had entered into cooperation agreements with state and federal


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                                       4
authorities.    The court also found that the agreement with the State was

conditioned on defendant not engaging in future criminal activity. The court

then found that defendant had breached his cooperation agreement with the State

in January 2008 when he was arrested and charged with receiving stolen

property. Thus, the PCR court found that defendant had no legitimate basis to

withdraw his 2007 guilty pleas and his counsel had not been ineffective in not

filing a motion to withdraw those pleas.

                                       II

      On appeal, defendant makes one argument, which he articulates as

follows:

               POINT I – MR. BATTS IS ENTITLED TO AN
               EVIDENTIARY HEARING ON HIS CLAIM THAT
               HIS ATTORNEY RENDERED INEFFECTIVE
               ASSISTANCE OF COUNSEL AND THAT HE
               SHOULD BE ALLOWED TO WITHDRAW HIS
               PLEA.

More specifically, defendant argues that although the PCR court held an

evidentiary hearing, the hearing was limited in purpose and defendant is entitled

to a more complete evidentiary hearing.

      We use a "deferential standard of review" on an appeal of a denial of a

PCR petition following an evidentiary hearing. State v. Nash, 212 N.J. 518,

542-43 (2013).      Accordingly, the factual findings made by a PCR court

                                                                         A-0684-16T3
                                       5
following an evidentiary hearing will be accepted if they are based on "sufficient

credible evidence in the record." Id. at 540. Legal conclusions are reviewed de

novo. Id. at 540-41. A defendant is only entitled to an evidentiary hearing on a

PCR petition if he or she establishes a prima facie case in support of PCR, "there

are material issues of disputed fact that cannot be resolved by reference to the

existing record," and the court determines "that an evidentiary hearing is

necessary to resolve the claims for relief." R. 3:22-10(b); State v. Porter, 216

N.J. 343, 354 (2013).

      Here, defendant's contention depends on his ability to establish a prima

facie showing of grounds to withdraw his guilty plea or ineffective assistance of

counsel. To justify withdrawing his guilty plea, defendant must show that the

State breached a material representation made in connection with his plea, see

State v. Rosario, 391 N.J. Super. 1, 13 (App. Div. 2007) (quoting Santobello v.

New York, 404 U.S. 257, 262 (1971)), or that he has a basis for withdrawing his

guilty plea. State v. Slater, 198 N.J. 145, 156 (2009); see also R. 3:21-1. To

withdraw his plea post-sentencing, defendant must show a manifest injustice.

R. 3:21-1. In making that determination, the court considers and balances four

factors: "(1) whether the defendant has asserted a colorable claim of innocence;

(2) the nature and strength of defendant's reasons for withdrawal; (3) the


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                                        6
existence of a plea bargain; and (4) whether withdrawal would result in unfair

prejudice to the State or unfair advantage to the accused." Slater, 198 N.J. at

157-58.

      To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687

(1984), and later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42,

58 (1987). Under that test, a defendant must prove (1) "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment," and (2) "the deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at

58.

      Here, defendant cannot show that the State breached its plea agreement.

The written plea agreement provided that defendant would be sentenced t o an

aggregate term of five years in prison with three years of parole ineligibility.

Defendant received the benefit of that bargain. Nevertheless, defendant argues

that under his cooperation agreement, he might have received a lower sentence.

He further contends that there is a need for a hearing to develop what the

cooperation agreement provided. The PCR court, however, conducted a hearing

and found that the cooperation agreement with the State was conditioned on


                                                                          A-0684-16T3
                                        7
defendant not engaging in further criminal activity. The court then found that

defendant breached that agreement when he was arrested, charged, and

convicted of receiving stolen property.

      Defendant contends that the PCR court improperly determined that the

conditions of the cooperation agreement were part of his plea. Furthermore,

defendant argues that even if the conditions were part of the plea, the conditions

were too vague and it would be unfair to enforce them. We are not persuaded

by these arguments. The PCR court conducted an adequate hearing to find that

there was a cooperation agreement connected to defendant's plea, the agreement

was conditioned on defendant not engaging in further criminal activity, and

defendant breached that condition.        There was sufficient credible evidence

presented at the evidentiary hearing to support those findings.

      Given that defendant breached his cooperation agreement, he cannot show

that he was entitled to withdraw his guilty pleas. In that regard, defendant does

not contend that he was innocent of the crimes that he pled guilty to in 2007.

Moreover, as already noted, defendant received the sentence that was

recommended by the State at the time of his plea. Accordingly, no manifest

injustice has occurred. Similarly, defendant has not made a prima facie showing

of ineffective assistance of counsel since there was no showing of a basis for


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                                          8
making the motion to withdraw the guilty plea or that the motion had a

reasonable probability of success.

      Affirmed.




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