STATE OF NEW JERSEY v. BRANDON COOPER

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2515-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRANDON COOPER,

     Defendant-Appellant.
_________________________

                   Submitted October 7, 2020 – Decided November 4, 2020

                   Before Judges Sumners and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 11-11-2778.

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

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (Mario C. Formica, Deputy First
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Brandon Cooper appeals the Law Division order denying him

post-conviction relief (PCR) without an evidentiary hearing. Having reviewed

the record considering the applicable legal standards, we affirm.

                                       I

      The underlying trial evidence and procedural history are detailed in our

unpublished decision affirming defendant's conviction and sentence on direct

appeal, State v. Cooper, Nos. A-2011-12T1, A-2988-12T1, A-3099-12T1 (App.

Div. Sep. 4, 2015), certif. denied,  224 N.J. 124 (2016), and in the PCR judge's

ten-page written decision. We incorporate both by reference here; thus, a brief

summary will suffice.

      As a result of an incident at an Atlantic City casino that occurred on the

evening of May 27, 2011, and into the early morning hours of the next day,

defendant was indicted for two counts of first-degree robbery, N.J.SA. 2C:15-1;

second-degree conspiracy to commit robbery,  N.J.S.A. 2C:5-2 and  N.J.S.A.

2C:15-1(a); second-degree possession of a weapon for an unlawful purpose,

 N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon,  N.J.S.A.

2C:58-4 and  N.J.S.A. 2C:39-5(b); first-degree aggravated sexual assault,

 N.J.S.A. 2C:14-2(a); and second-degree sexual assault,  N.J.S.A. 2C:14-2(c).




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      On May 7, 2012, after being granted a request to plead defendant's trial

case off the trial list as a plea cut-off exception, the parties reached a plea

agreement in which defendant pled guilty to first-degree robbery, second-degree

conspiracy to commit robbery, and first-degree aggravated sexual assault. In

addition to stating, "[t]ruthful testimony," the plea form indicated the State

agreed to recommend defendant serve a maximum prison term of twelve years

for first-degree armed robbery, six years for second-degree conspiracy to

commit robbery, and twelve years for first-degree aggravated sexual assault, all

to be served concurrently and subject to an eighty-five percent parole

disqualifier pursuant to the No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2.

      During the plea hearing, trial counsel informed the court that the plea

agreement required defendant to provide truthful testimony. Defendant provided

a factual basis for the plea, stating that he and his two co-defendants, one of

whom was armed, participated in the robbery. (Cooper, slip op. at 10). He

further testified that he and one of his co-defendants sexually assaulted the

victim and that he digitally penetrated her vaginal area. (Ibid.)

      Less than two months later, the State moved to withdraw defendant's

guilty plea claiming he reneged on his plea agreement obligation to provide

truthful testimony against his co-defendants. The State contended that during a


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pre-trial meeting with defendant to discuss his trial testimony, he gave a

completely different version of events than what he stated in his plea colloquy.

In particular, he denied his and his co-defendants' involvement in the robbery

and sexual assault. In opposition to the State's motion, defendant maintained

that, during the meeting, the prosecutor asked him questions he had never been

asked before. After hearing the parties' respective arguments, the motion judge

entered an order that same day granting the State's request and vacating

defendant's plea.   In his oral ruling, the judge explained that the material

elements and consequences of the plea agreement were disclosed to defendant

at the plea colloquy, where he accepted those terms knowingly and voluntarily.

Defendant thus went to trial.

      Following a four-day jury trial, defendant was found guilty on all counts

of the indictment. After merger, he was sentenced on the two first-degree

robbery counts to two concurrent seventeen-year prison terms subject to NERA,

consecutive to a ten-year prison term subject to NERA for first-degree

aggravated sexual assault.

      On direct appeal, this court reversed defendant's convictions on first-

degree aggravated sexual assault and second-degree sexual assault, remanding

the charges for retrial.     (Cooper, slip op. at 41).   After his petition for


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                                        4
certification was denied, defendant reached a plea agreement with the State

wherein he pled guilty to first-degree aggravated sexual assault and was

sentenced to a ten-year prison term subject to NERA to run concurrent to his

previously-sentenced robbery convictions.1

      A month later, in June 2017, defendant filed a PCR petition related to the

motion judge's order vacating his plea agreement. He argued the order resulted

from trial counsel's failure to explain to him that the plea agreement required

him to give trial testimony the State would deem truthful against his two co-

defendants. This ineffectiveness, defendant explained, prejudiced him when the

jury found him guilty and the court sentenced him to a seventeen-year NERA

term, significantly more time than the twelve-year NERA term the plea

agreement had provided. (Ibid.). Defendant argued his PCR claim was not

barred by Rule 3:22-2, because it spoke to the ineffective assistance of counsel,

which was not part of the trial court record and, thus, could not have been raised

on direct appeal.

      The PCR judge denied defendant relief. The judge determined that in this

court's rejection of defendant's direct appeal challenge of the withdrawal of his



1
   The second-degree aggravated sexual assault charge was dismissed pursuant
to the plea agreement.
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plea agreement, we specifically determined defendant was fully aware of the

plea agreement terms that he provide truthful testimony against his co-

defendants. The judge cited our ruling:

            While the trial court did not expressly inform
            [defendant] of his obligation to provide truthful
            testimony as part of the plea agreement, [defendant's]
            counsel placed the condition that [defendant] had
            agreed to provide "truthful testimony" on the record
            during the plea hearing. [Defendant's] counsel also
            acknowledged the agreed-upon condition of truthful
            testimony on the "Request to Plead Case off the Trial
            List" form. Moreover, [defendant] himself signed the
            written plea agreement that contained the condition that
            he give truthful testimony, and on the page containing
            the condition, he initialed less than one inch from the
            condition. While the court may not have explicitly
            discussed with [defendant] that he had an obligation to
            provide truthful testimony, the court did ask
            [defendant] if he went over the plea form with his
            lawyer, and whether his lawyer answered his questions.
            [Defendant] answered affirmatively.

            [Cooper, slip op. at 16-17.]

The judge further explained that "defendant has offered no certification to

bolster his bald assertion that his trial counsel failed to inform him of the

contingency aspect of his plea." The judge therefore found defendant was not

entitled to an evidentiary hearing because he failed to demonstrate a prima facie

case of ineffective assistance of counsel.



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                                        6
                                        II

      In this appeal, defendant contends the initial plea agreement, with the

recommendation of an aggregate twelve-year prison term subject to NERA,

should be enforced because he complied with its terms as he understood them to

be and any failure to do so was the result of his counsel's ineffective assistance.

He argues the PCR judge failed to view the facts in the light most favorable to

him. State v. Marshall,  148 N.J. 89, 158 (1997) (citing State v. Preciose,  129 N.J. 451, 463 (1992)). He asserts he did not know he would have to testify

against his co-defendants and, if counsel had provided effective assistance, the

plea agreement would have adequately stated the condition and the plea court

would have ensured his understanding. The State, defendant claims, should not

have been allowed to withdraw his guilty plea because of due process concerns.

State v. Warren,  115 N.J. 433, 445 (1989). Defendant asserts he waived his

right to self-incrimination and placed a factual basis on the record.

      Defendant further asserts he was prejudiced by counsel's failings when he

stood trial because of the vacated plea; the jury found him guilty and following

his direct appeal, he eventually received a sentence five years longer than he

would have under the plea agreement. In the alternative, citing State v. Preciose,

 129 N.J. 462 (1992), defendant seeks an evidentiary hearing to determine


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"disputed extra-record facts bearing on counsel's ineffective representation."

(Ibid.) We are not persuaded by any of defendant's arguments.

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must show: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defense. Strickland v. Washington,  466 U.S. 668, 687

(1984); State v. Fritz,  105 N.J. 42, 58 (1987). The mere raising of PCR does not

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

Super. 154, 170 (App. Div. 1999), because the court reviewing claims of

ineffective assistance has the discretion to grant an evidentiary hearing only if

the defendant makes a prima facie showing in support of the requested relief,

Preciose,  129 N.J. at 462. An evidentiary hearing need only be conducted if

there are disputed issues as to material facts regarding entitlement to PCR that

cannot be resolved based on the existing record. State v. Porter,  216 N.J. 343,

354 (2013) (citing R. 3:22-10(b)).

      The threshold question here is whether defendant's claim is procedurally

barred. Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground

for relief is conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding brought pursuant to this rule

. . . , or any appeal taken from such proceedings." Although the PCR judge did


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not specifically cite Rule 3:22-5, his reasoning incorporates the essence of the

rule. As the judge pointed out, we rejected defendant's direct appeal argument

that the motion judge erred in granting the State's application to withdraw

defendant's plea agreement and vacate his guilty plea because he failed to

provide truthful testimony concerning his co-defendants' involvement in the

robbery and sexual assault crimes.

      We conclude there is no merit to defendant's argument that his PCR claim

is viable because the facts demonstrating counsel's ineffectiveness are outside

the trial court record. As noted, we determined in defendant's direct appeal that

the trial record demonstrated counsel informed defendant of his plea agreement

obligation to provide truthful testimony, and he advised the plea judge that he

understood the plea agreement. 2      Accordingly, defendant's PCR petition is

procedurally barred by Rule 3:22-5.

      Putting aside our direct appeal ruling and the impact of Rule 3:22-5,

defendant did not produce an affidavit or certification to support his claim that

counsel gave ineffective advice in explaining defendant's plea agreement


2
  Relying on an unpublished opinion is permissible under Rule 1:36-3 "to the
extent required by res judicata, collateral estoppel, the single controversy
doctrine or any other similar principle of law." Badiali v. N.J. Mfrs. Ins. Grp.,
 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd,  220 N.J. 544 (2015)
(quoting R. 1:36-3).
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                                        9
obligations. Given defendant's bald assertion of counsel ineffectiveness, the

PCR judge did not abuse his discretion in denying defendant an evidentiary

hearing as defendant neither established a prima facie case of ineffective

assistance nor presented any disputed facts.

      Affirmed.




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