STATE OF NEW JERSEY v. FRED MOSLEY

NOT FOR PUBLICATION WITHOUT THE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-3972-16T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FRED MOSLEY,

     Defendant-Appellant.
____________________________

              Submitted March 6, 2018 - Decided March 22, 2018

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment Nos.
              13-09-2433, 14-07-2379, and 14-07-2250.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (William Welaj, Designated
              Counsel, on the brief).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (John J. Santoliquido,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant appeals from an April 13, 2017 order denying his

petition for post-conviction relief (PCR) without an evidentiary

hearing.   We affirm.

     Defendant pled guilty to burglary and kidnapping pursuant to

a negotiated plea agreement providing for an aggregate prison term

of no greater than twenty years.       In return, defendant agreed to

provide truthful testimony against his co-defendant.1       Defendant

was sentenced to a nineteen-year prison term.

     Defendant filed a notice of appeal as to the sentence imposed

pursuant to Rule 2:9-11. We affirmed the sentence in an Excessive

Sentence Oral Argument (ESOA) panel order. State v. Mosley, Docket

No. A-4510-14 (App. Div. Jan. 12, 2016).

     Defendant filed a PCR petition, arguing that his trial counsel

spoke with the judge and the assistant prosecutor in chambers, and

it was represented that if defendant cooperated by testifying

against his co-defendant, defendant would "get four or five years

off" his sentence.     However, defendant received the same sentence

as his co-defendant.    In his PCR petition, defendant asserted that

if he knew he was going to receive the same prison sentence as his

co-defendant, he would not have accepted the plea offer.




1
   Defendant was not required to testify at trial as his co-
defendant eventually accepted a plea offer.

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      After reviewing the written submission regarding defendant's

PCR petition and hearing the arguments of counsel, the PCR judge

found defendant's bald assertion as to the discussion in the

judge's     chambers,    without    a       supporting       certification      from

defendant's trial attorney, did not warrant a plenary hearing.

The PCR judge also noted defendant agreed during the plea colloquy,

on his plea form, and at sentencing that the "agreed for bargain

was   the   cap   at   twenty   years."       In     addition,      the   PCR   judge

determined    that     the   sentencing      judge    "but    for    [defendant's]

cooperation, would have rejected the plea, would have considered

seriously sentencing [defendant] to the maximum on the kidnapping

charge, which . . . was [thirty] years at that particular point."

While the PCR judge did not believe that a conversation took place

in the trial judge's chambers as alleged by defendant, even

assuming such a communication occurred, the PCR judge found "no

showing of prejudice . . . to defendant."              The PCR judge concluded

defendant failed to make a prima facie showing of ineffective

assistance of counsel and failed to make any showing of prejudice.

      On appeal, defendant argues:

            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 FROM TRIAL COUNSEL, RESULTING


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           IN A GUILTY PLEA WHICH HAD BEEN                FREELY,
           KNOWINGLY AND VOLUNTARILY ENTERED.

      The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668 (1984), and adopted by

our Supreme Court in State v. Fritz, l
05 N.J. 42 (l987).            In order

to prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test of 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 694.

      In the context of a guilty plea, "a defendant must prove

'that there is a reasonable probability that, but for counsel's

errors, [he or she] would not have pled guilty and would have

insisted on going to trial.'"          State v. Gaitan, 
209 N.J. 339, 351

(2012) (alteration in original) (quoting State v. Nuñez-Valdéz,


200 N.J. 129, 139 (2009)).            A defendant must also convince the

court that "a decision to reject the plea bargain would have been


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rational under the circumstances."                Padilla v. Kentucky, 
559 U.S. 356, 372 (2010).

      We agree with the PCR judge that defendant has not established

a prima facie claim under the Strickland/Fritz test.                      Defendant

makes a bald and unsubstantiated allegation that there was an in-

chambers      discussion   among   his       trial       counsel,   the   assistant

prosecutor, and the judge in which it was agreed defendant would

receive a sentence four to five years less than the sentence

imposed on his co-defendant.

      Defendant failed to obtain an affidavit or certification from

his   trial    attorney    in   support      of    his    allegation.      Further,

defendant's bare assertion is belied by the plea colloquy, the

plea form, and the sentencing transcript.                   The sentencing judge

made it clear that but for defendant's cooperation and truthful

testimony regarding the co-defendant, "the sentence [the judge

was] about to impose [was] nowhere near what [defendant] deserves

because of his prior record."             The sentencing judge also noted

that defendant's willingness to testify caused co-defendant to

plead guilty and spared the need for the eighty-eight year old

victim to relive her harrowing experience and testify at trial.

Had these considerations not existed, the sentencing judge stated

he would have rejected the plea and imposed a higher sentence.                     By

accepting the State's offer to plead guilty in exchange for a

                                         5                                  A-3972-16T3
recommended sentence of not more than twenty years, defendant

avoided the potential exposure of a longer sentence.     Defendant

did not produce evidence that it would have been rational to reject

the plea agreement and insist on going to trial.

     We are satisfied from our review of the record that defendant

failed to make a prima facie showing of ineffective assistance of

trial counsel within the Strickland/Fritz test.    Accordingly, the

PCR court correctly concluded that an evidentiary hearing was not

warranted.   See State v. Preciose, 
129 N.J. 451, 462-63 (1992).

     Affirmed.




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