STATE OF NEW JERSEY v. SELVIN L. PURNELL

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SELVIN L. PURNELL,

Defendant-Appellant.

_______________________________________________________

November 16, 2016

Submitted November 1, 2016 Decided

Before Judges Fisher and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 11-02-0371 and 11-04-0870.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Brett Yore, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In 2013, by negotiated agreement, defendant pleaded guilty to two third-degree drug offenses; the State agreed to dismissal of all other counts in the two indictments and to recommend concurrent terms and a suspended sentence, which was later imposed. Defendant did not file a direct appeal.

In 2014, defendant filed a pro se post-conviction relief (PCR) petition, asserting he was denied the effective assistance of counsel because his trial attorney both failed to provide him with discovery turned over by the State and pressured him into entering into the plea agreement. PCR counsel was appointed and a supplemental brief filed. After hearing oral argument, the PCR judge, who was not involved in the earlier proceedings, denied relief for reasons expressed in an oral decision.

Defendant appeals, arguing

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO PROVIDE DEFENDANT WITH A COPY OF THE DISCOVERY.

B. DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY PRESSURED HIM INTO ENTERING A GUILTY PLEA.

We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), adding only the following brief comments.

As for the claim that counsel was ineffective because she was unprepared for trial and had not provided defendant with discovery, the PCR judge correctly observed in his application of the Strickland/Fritz1 test that defendant only made bald assertions and only expressed his subjective belief about the state of counsel's preparation. He failed to supply a certification and identified nothing in the record that would suggest a prima facie case of ineffectiveness or require an evidentiary hearing. See State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). And the claim that counsel coerced his guilty plea is belied by the colloquy between the trial judge and defendant during the plea hearing. To be sure, defendant then repeatedly expressed his dissatisfaction with his attorney and at times seemed unwilling to enter a guilty plea. But the judge patiently and carefully reviewed the matter with defendant and, ultimately, defendant acknowledged he understood he was waiving his right to a trial, expressed his willingness to waive his right to trial, and affirmed that no one forced him to enter into the plea agreement or to plead guilty. We, thus, agree with the PCR judge that defendant failed to present a prima facie case of ineffectiveness.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).