STATE OF NEW JERSEY v. ELI SHONK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELI SHONK,

Defendant-Appellant.

________________________________

March 27, 2014

Submitted: March 19, 2014 Decided:

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-09-0353.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eli Shonk appeals from the November 16, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

On September 18, 2009, defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1a(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and second-degree eluding, N.J.S.A. 2C:29-2b. In exchange for his plea, the State agreed to recommend that defendant be sentenced as a second-degree offender on the robbery charge, with a maximum aggregate sentence of seven years, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In accordance with this plea agreement, the trial judge sentenced defendant to a seven-year aggregate term, subject to NERA, with a five-year period of parole supervision upon release. Defendant did not file a direct appeal from his conviction and sentence.

On December 9, 2011, defendant filed a petition for PCR, contending that his plea counsel was ineffective because he failed to adequately advise him of the consequences of his guilty plea. Defendant asserted that, despite the clear terms of the plea agreement, he anticipated receiving a five-year sentence.

In a September 25, 2012 written opinion, Judge Ann R. Bartlett denied the petition. Judge Bartlett found that plea counsel effectively negotiated a favorable agreement for defendant, under which he would be sentenced as a second-degree offender and that "[t]his substantially decreased [defendant's] potential [prison] exposure." After reviewing the transcript of the September 18, 2009 plea proceeding, the judge also found that defendant's attorney "accurately presented the State's offer to [defendant] and explained that while he could and would argue for less, [defendant] was subject to a maximum incarceration of seven years [subject to NERA] by virtue of his plea." Thus, Judge Bartlett concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. This appeal followed.

On appeal, defendant raises the following contention:

THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Bartlett in her well-reasoned September 25, 2012 written opinion.