Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. KEITH BRAILEY

NOT FOR PUBLICATION WITHOUT THE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-0745-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KEITH BRAILEY,

     Defendant-Appellant.
_____________________________

              Submitted November 15, 2017 – Decided December 15, 2017

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              13-07-1487.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Karen Ann Lodeserto, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Roseanne Sessa,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Keith Brailey appeals from the denial of his post-

conviction relief (PCR) petition.             Defendant contends that trial

counsel was ineffective in failing to obtain a lesser prison
sentence, and one not subject to the No Early Release Act (NERA),


N.J.S.A. 2C:43-7.2.      Because we find that defendant has failed to

present a prima facie showing of ineffective counsel, we affirm.

     Defendant    was    charged    in       an    indictment     with    aggravated

assault, 
N.J.S.A. 2C:12-1(b)(1); possession of a weapon for an

unlawful purpose, 
N.J.S.A. 2C:39-4(d); and unlawful possession of

a weapon, 
N.J.S.A. 2C:39-5(d), after he stabbed his nineteen-year-

old son multiple times with a knife.

     After trial had begun, defendant pled guilty to all three

counts of the indictment.          There was no plea agreement with the

State.     Judge Paul M. DePascale advised defendant at the plea

hearing that the sentence range was between five and ten years.

     At sentencing, the State requested a sentence of seven years;

defense counsel asked for a five-year prison term, subject to

NERA.     Judge DePascale imposed a sentence of five years, subject

to the NERA parole ineligibility period.                    Defendant's appeal of

the sentence was affirmed.         State v. Brailey, No. A-0711-14 (App.

Div. Apr. 15, 2015).

     In    defendant's   PCR   petition           before    the   trial   court,    he

contended that he was offered a flat five-year sentence by his

trial counsel, which he agreed to accept.                  However, he stated that

his counsel did not convey his acceptance to the prosecutor, and

as a result, when he did plead guilty, the offer became five years

                                         2                                   A-0745-16T4
subject to NERA.      In a certification provided with the petition,

defendant averred that his counsel told him to agree to a five-

year flat term.      He did so, but then counsel advised him that the

prosecutor did not agree to that term.

     Judge DePascale, having handled the matter at all stages,

found in an oral decision on May 26, 2016, that defendant had

misstated the facts. He stated that the initial offer to defendant

was set forth in the arraignment order as a plea to second-degree

aggravated assault with a seven-year prison term subject to NERA.

Defendant did not accept the offer.

     On the date of trial, the judge recalled that defendant pled

to the indictment; there was no negotiated plea.         Defense counsel

attempted to make a counteroffer at that time and did ask defendant

to accept a five-year flat term.           When defendant finally agreed

to the counteroffer, the Prosecutor rejected it. The judge stated:

                  It wasn't a change of heart by the
             Prosecutor. [She] never offered the flat five.
             That was a bone of contention.       It was a
             counteroffer by Defense Counsel. The original
             offer as I indicated is subject to the No Early
             Release Act. That was the offer that was made
             by the Prosecutor's Office throughout.       It
             never changed.

     Judge DePascale advised that he told counsel that the sentence

would   be    the   lowest   permissible    if   defendant   pled   to   the

indictment.     He said: "And if you read the sentencing transcript,


                                     3                              A-0745-16T4
you can see the State was more than mildly upset with the [c]ourt

for the sentence imposed.   However, the sentence he got was the

sentence I indicated he would get."

     The judge concluded:

               So, there was no ineffectiveness on the
          part of . . . Counsel.      Counsel [was] so
          determined in her advocacy, she convinced the
          [c]ourt to undercut the State, which is
          something I don't do with regularity and,
          [defendant was given] a minimum sentence and,
          it was unlikely that . . . would be the
          sentence should he go to trial and be
          convicted.

               So, I cannot find and do not find
          ineffectiveness on the part of . . . Counsel.
          Rather, she did everything she could to secure
          the best possible deal for this Defendant and
          there is no question this plea was entered
          knowingly, voluntarily[,] and freely . . . .
          [T]here is no ineffectiveness at all and the
          Defendant was not prejudiced in any way by his
          Counsel's actions.

The PCR petition was denied.

     On appeal, defendant asserts that his trial counsel was

ineffective in failing to obtain a sentence of less than five

years and not subject to NERA, and that PCR counsel was ineffective

in "simply repeat[ing] the bald assertions that were made by

[defendant] in his certification."    We are not persuaded by these

arguments.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

                                 4                          A-0745-16T4
in Strickland v. Washington, 
466 U.S. 668 (1984), and adopted by

our Supreme Court in State v. Fritz, 
105 N.J. 42 (1987).                     In order

to prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test establishing both that: (l)

counsel's performance was deficient and he or she made errors that

were so egregious that counsel was not functioning effectively as

guaranteed     by     the     Sixth      Amendment      to   the    United     States

Constitution;       and     (2)   the    defect    in    performance    prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 
466 U.S.  at 687, 694.

     We are satisfied from our review of the record that defendant

failed to demonstrate the ineffectiveness of trial or PCR counsel

under the Strickland-Fritz test.                  Defendant's certification is

without support in the record and misrepresents the circumstances

of his plea.     The prosecutor and the judge advised that there was

never    an   offer   of     a    flat   five-year      sentence.      That    was    a

counteroffer that defense counsel attempted to make on the day of

trial.    It was never accepted by the State.                As discussed by Judge

DePascale, the sentence imposed was quite favorable to defendant

and unsatisfactory to the State.



                                           5                                  A-0745-16T4
     As for PCR counsel, he filed a brief with the court in which

he indicated that he was incorporating all arguments previously

presented by defendant in his PCR petition.     At oral argument, the

judge advised that he had read all of the briefs.           PCR counsel

responded that he had read the State's brief and he would rely on

his own brief and supplemental certifications.          There was no

obligation   to   repeat   the   previously   articulated    arguments,

particularly in these circumstances where the judge was familiar

with all aspects of the case.     There has been no demonstration of

a deficient performance by either trial or PCR counsel.

     Affirmed.




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