STATE OF NEW JERSEY v. RAJAHN BROWN

NOT FOR PUBLICATION WITHOUT THE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-4704-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAJAHN BROWN,

     Defendant-Appellant.
________________________________

              Submitted May 31, 2018 – Decided June 12, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment Nos.
              97-01-0277 and 97-06-2871.

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

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Kayla
              Elizabeth Rowe, Special Deputy Attorney
              General/Acting   Assistant Prosecutor,  of
              counsel and on the brief).

PER CURIAM
     Defendant appeals from the May 8, 2017 Law Division order

denying his petition for post-conviction relief (PCR) without an

evidentiary hearing.      We affirm.

     After an Essex County grand jury returned two indictments

charging defendant with a total of four drug-related offenses, he

pled guilty to two counts of third-degree possession of cocaine

with intent to distribute it, 
N.J.S.A. 2C:35-5(b)(3).             On April

17, 1998, the trial court sentenced defendant to concurrent four-

year terms on the two offenses.          The remaining two charges were

dismissed.

     More than eighteen years later, on October 28, 2016, filed

his petition for PCR.     In his petition, defendant alleged that his

plea attorney failed to advise him that if he committed federal

offenses in the future, he would be subject to enhanced penalties

because of his State convictions.

     Following oral argument, Judge Marysol Rosero rendered a

thorough oral opinion denying defendant's petition for PCR.             The

judge found that an evidentiary hearing was not required because

there was no dispute as to any of the material facts underlying

defendant's   petition.      In   this    regard,   the   judge   accepted

defendant's contention that his plea attorney did not tell him

that if he continued to commit crimes, he would face enhanced

punishment.

                                    2                              A-4704-16T1
     Citing State v. Wilkerson, 
321 N.J. Super. 219, 223 (App.

Div. 1999), the judge held that defendant's plea counsel had no

duty to give advice concerning the sentencing features of other

state or federal laws.         Thus, the judge concluded that defendant

failed to satisfy the two-prong test of Strickland v. Washington,


466 U.S. 668, 687 (1984), which requires a showing that plea

counsel's performance was deficient and that, but for deficient

performance, the result would have been different.

     In   addition,    Judge     Rosero     noted    that    Rule   3:22-12(a)(1)

precludes PCR petitions filed more than five years after entry of

a judgment of conviction unless the delay was "due to defendant's

excusable neglect and . . . there is a reasonable possibility that

if the defendant's factual assertions were found to be true

enforcement   of    the   time    bar     would     result   in     a   fundamental

injustice[.]"      Because defendant's plea attorney was not required

to advise him of the enhanced sentencing features of federal

criminal law at the time of his plea to the State charges, the

judge held that there would be no "fundamental injustice" in

applying the five-year time bar to defendant's petition, which was

filed more than thirteen years out of time.             This appeal followed.

     On appeal, defendant argues that the trial court erred by:

(1) ruling that his petition was time-barred; and (2) denying the

petition without an evidentiary hearing.              We disagree.

                                        3                                   A-4704-16T1
       The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.        State v. Cummings, 
321 N.J.

Super. 154, 170 (App. Div. 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 of counsel, material issues of disputed

fact lie outside the record, and resolution of those issues

necessitates a hearing.       R. 3:22-10(b); State v. Porter, 
216 N.J.
 343, 355 (2013).

       To establish a prima facie claim of ineffective assistance

of counsel, the defendant

            must satisfy two prongs.     First, he must
            demonstrate that counsel made errors so
            serious that counsel was not functioning as
            the counsel guaranteed the defendant by the
            Sixth Amendment. An attorney's representation
            is deficient when it [falls] below an
            objective standard of reasonableness.

                 Second, a defendant must show that the
            deficient performance prejudiced the defense.
            A defendant will be prejudiced when counsel's
            errors are sufficiently serious to deny him a
            fair trial. The prejudice standard is met if
            there is a reasonable probability that, but
            for counsel's unprofessional errors, the
            result of the proceeding would have been
            different.   A reasonable probability simply
            means a probability sufficient to undermine
            confidence in the outcome of the proceeding.

            [State v. O'Neil, 
219 N.J. 598, 611 (2014)
            (citations omitted).]


                                      4                              A-4704-16T1
     To set aside a guilty plea based on ineffective assistance

of counsel, "a defendant must show that (i) counsel's assistance

was 'not within the range of competence demanded of attorneys in

criminal cases;' and (ii) 'that there is a reasonable probability

that, but for counsel's errors, [the defendant] would not have

pled guilty and would have insisted on going to trial.'"              State

v. Nuñez-Valdéz, 
200 N.J. 129, 139 (2009) (alteration in original)

(quoting State v. DiFrisco, 
137 N.J. 434, 457 (1994)).            We review

a judge's decision to deny a PCR petition without an evidentiary

hearing   for   abuse   of   discretion.    See   R.   3:22-10;   State    v.

Preciose, 
129 N.J. 451, 462 (1992).              We discern no abuse of

discretion here.

     Judge Rosero correctly relied upon our decision in Wilkerson,

where we held there is "no constitutional requirement that a

defense attorney must advise a client or defendant that if he or

she commits future criminal offenses that there may be adverse

consequences by way of enhancement of the penalty" in connection

with a plea agreement.       
321 N.J. Super. at 223.    Instead, we noted

that "generally individuals should be aware as a matter of common

sense that a continuing course of antisocial or criminal conduct

may lead to increased penalties."        Ibid.   Because defendant's plea

attorney was therefore not ineffective for failing to provide this



                                     5                              A-4704-16T1
advice, defendant was unable to meet either of the Strickland

prongs.

     Although Judge Rosero denied defendant's petition on its

merits, she also properly found it was time-barred under Rule

3:22-12(a)(1).   Because defendant did not present a prima facie

case of ineffective assistance, he is unable to demonstrate that

applying the time bar would result in a "fundamental injustice."

     Finally, an evidentiary hearing was not required under the

circumstances presented in this case.     Such a hearing is only

required "when there are disputed issues of material facts related

to the defendant's entitlement to PCR, particularly when the

dispute regards events and conversations that occur off the record

or outside the presence of the judge."   Porter, 
216 N.J. at 354.

Here, there was no dispute as to any material fact relative to

defendant's petition.

     Affirmed.




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