STATE OF NEW JERSEY v. ISMAIL ABBAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2833-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISMAIL ABBAS,

Defendant-Appellant.

November 16, 2012

Submitted October 23, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-03-0586.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ismail Abbas appeals from the November 18, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On March 23, 2006, a Monmouth County Grand Jury indicted defendant for third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 34:10(a)(1). On June 12, 2006, defendant pled guilty in exchange for the State recommending a sentence of probation to run concurrent with a probation sentence from Florida, which defendant was serving in New York.

On November 15, 2006, a Monmouth County Grand Jury indicted defendant for another charge of third-degree possession of a controlled dangerous substance. On February 13, 2007, defendant pled guilty in exchange for the State recommending a concurrent probationary sentence. Following defendant's plea, Judge Anthony J. Mellaci, Jr., sentenced defendant to two, three-year concurrent terms of probation.

On August 20, 2010, defendant appeared before Judge Mellaci for a charge of violation of probation (VOP) due to allegations that he "fail[ed] to report,1 fail[ed] to pay his financial obligations, committ[ed] a various amount of [disorderly persons offenses] in New York and Illinois, fail[ed] to maintain employment, and abscond[ed]." Defendant's counsel informed the court that after reviewing the allegations with defendant,
"he's advised that the allegations as written against him are correct." Defendant then pled guilty under oath to violating his probation. Accordingly, Judge Mellaci vacated defendant's probationary sentence and sentenced defendant to four years in state prison.

On February 2, 2011, defendant filed a pro se petition for PCR. On August 18, 2011, court-appointed counsel filed a supplemental brief in support of defendant's petition, along with a certification from defendant dated August 10, 2011. In this certification, defendant claims his attorney at his VOP hearing told him that if he pled guilty to violating probation, he could come back to court once he obtained the documents that proved he did not violate his probation, and then he would not have to serve four years in prison.

On November 18, 2011, Judge Mellaci heard oral argument on defendant's PCR petition. During argument, defendant's PCR counsel requested "an evidentiary hearing to find out what was told . . . to the defendant by his attorney."

Judge Mellaci found defendant's argument to be a bald assertion and defendant had "nothing to back up this assertion." He further found that defendant had not described the alleged papers or explained how they would show he did not violate his probation. Accordingly, Judge Mellaci denied defendant's request for an evidentiary hearing and denied defendant's petition for PCR.

On appeal defendant argues:

POINT I: TRIAL COUNSEL [MISLED] PETITIONER IN ORDER TO COERCE HIM INTO PLEADING GUILTY TO THE VIOLATION OF PROBATION BY TELLING HIM THAT AFTER HE WAS SENTENCED, HE WOULD BE ABLE TO GO HOME TO RETRIEVE PAPERWORK THAT WOULD SHOW THAT HE WAS NOT GUILTY OF THE VIOLATION. THIS MISREPRESENTATION REQUIRES AN EVIDENTIARY HEARING TO DETERMINE WHETHER THIS BEHAVIOR CONSTITUTED A VIOLATION OF PETITIONER'S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Mellaci in his oral opinion. We add the following comments.

To establish a prima facie case of ineffective assistance of counsel, the defendant must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).

The determination on whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2012).

Here, defendant's claims of ineffective assistance are "bald assertions," which are not sufficient to establish a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant fails to present any objective facts to show his VOP plea counsel misled him. He continues to provide no basis for his claim that his "papers" would have proven he did not violate his probation. In fact, defendant still offers no insight into exactly what these "papers" are or what information they contain.

Affirmed.

1 The record shows defendant failed to report to probation for approximately fifty-three months by the time of his arrest. He was sentenced on February 13, 2007, a warrant was issued for his arrest for absconding from probation on April 27, 2007, and the warrant was executed on July 30, 2010.