STATE OF NEW JERSEY v. JOEY RICHBURG

NOT FOR PUBLICATION WITHOUT THE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-0410-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOEY RICHBURG, a/k/a
93001124001 JOEY,
RICHBURG JOEY and
THE HAT,

     Defendant-Appellant.
_______________________

                   Submitted January 25, 2021 – Decided March 2, 2021

                   Before Judges Currier and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 13-08-1576.

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

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).
PER CURIAM

      Defendant appeals from the July 8, 2019 Law Division order denying his

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

affirm.

      Defendant was charged in a five-count indictment with second-degree

aggravated assault,  N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated

assault,  N.J.S.A. 2C:12-1(b)(2) (count two); second-degree unlawful possession

of a weapon,  N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a

weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(a) (count four); and second-

degree certain persons not to have weapons,  N.J.S.A. 2C:39-7(b) (count five).

      The charges stemmed from gunfire exchanged between two males on a

residential street at approximately 1:00 p.m. on January 6, 2013. A resident was

struck in the abdomen by a stray bullet that came through the window of her

home. She survived the gunshot wound and subsequently identified defendant

as one of the shooters from photographs. Several neighbors reported hearing

gunshots to the police but could not identify any of the shooters. However, one

witness who was outside when the shooting occurred identified defendant as one

of the shooters, thus corroborating the victim's identification.




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      During pre-trial proceedings, the State moved to dismiss counts one

through four of the indictment. On March 22, 2016, the eve of trial on the

remaining count, defendant entered a negotiated guilty plea to count five, 1 and

admitted possessing an operable firearm on January 6, 2013, knowing that he

was prohibited from possessing firearms because of his prior criminal

convictions. On July 15, 2016, defendant was sentenced in accordance with the

plea agreement to five years' imprisonment, with a five-year period of parole

ineligibility.

      Defendant did not file a direct appeal. On December 21, 2018, defendant

filed a timely pro se PCR petition, claiming ineffective assistance of counsel

(IAC) "due to counsel's fail[ure] to communicat[e]."             In an unsigned

certification, defendant stated he "wish[ed] to vacate the plea" because his

attorney "never review[ed] any discovery with [him]" and "never conducted any

investigations." No other supporting certifications or affidavits were submitted.

However, after he was assigned counsel, in his supporting brief, defendant

argued his attorney failed to communicate and "review discovery with [him]" to

assist "in developing . . . arguments to present at trial." Defendant also argued



1
  Defendant also pled guilty to an unrelated charge that is not the subject of this
appeal.
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his attorney "never conducted any investigations" of the witnesses and thereby

lost "any opportunity to capture . . . exculpatory information."

      Following oral argument, the PCR judge denied defendant's petition. In a

written opinion, the judge applied the governing legal principles and concluded

defendant failed to establish a prima facie case of IAC by a preponderance of

the evidence. Viewing the facts in the light most favorable to defendant, the

judge found defendant failed to show that either counsel's performance fell

below the objective standard of reasonableness set forth in Strickland v.

Washington,  466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz,  105 N.J. 42, 49-53 (1987), or that the outcome would have been

different without the purported deficient performance as required under the

second prong of the Strickland/Fritz test. See State v. DiFrisco,  137 N.J. 434,

456-57 (1994) (applying the Strickland test "to challenges of guilty pleas based

on [IAC]" (citing Hill v. Lockhart,  474 U.S. 52, 58 (1985))).

      Specifically, the judge explained that defendant's "allegation that trial

counsel was ineffective[] fail[ed] to set forth any factual basis for counsel's

deficiencies or how he was prejudiced." The judge pointed out that defendant

claimed that trial counsel failed to investigate and "review discovery with [him]"

but "[n]o facts have been presented as to what an investigation of the State's


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                                        4
witnesses would have revealed," "only what investigations could have

revealed."     (Emphasis added).     Additionally, the judge determined that

defendant was not entitled to an evidentiary hearing because he failed to present

any issues that could not be resolved by reference to the existing record . The

judge stated that "[d]espite several claims of error against counsel," def endant

failed to "set forth any facts or information that would give this [c]ourt a basis

for evidentiary review" but only made "vague," "conclusory" and "speculative"

allegations.

      On appeal, defendant raises the following single point for our

consideration:

               [DEFENDANT]    IS  ENTITLED    TO    AN
               EVIDENTIARY HEARING ON HIS CLAIM THAT
               HIS ATTORNEY RENDERED [IAC] FOR FAILING
               TO REVIEW DISCOVERY AND INVESTIGATE.

      The mere raising of a PCR claim does not entitle the defendant to an

evidentiary hearing. State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999). Rather, "view[ing] the facts in the light most favorable to a defendant,"

State v. Preciose,  129 N.J. 451, 463 (1992), PCR judges should grant evidentiary

hearings in their discretion only if the defendant has presented a prima facie

claim of IAC, material issues of disputed fact lie outside the record, and



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                                        5
resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter,

 216 N.J. 343, 355 (2013); State v. Marshall,  148 N.J. 89, 158 (1997).

      Moreover, "[a] court shall not grant an evidentiary hearing" if "the

defendant's allegations are too vague, conclusory or speculative," R. 3:22-

10(e)(2), and a defendant "must do more than make bald assertions that he was

denied the effective assistance of counsel." Cummings,  321 N.J. Super. at 170.

Instead, he must support his claims with "affidavits or certifications based upon

the personal knowledge of the affiant or the person making the certification."

Ibid. See State v. Jones,  219 N.J. 298, 311-12 (2014) ("In order for a claim of

ineffective assistance of counsel to entitle a PCR petitioner to an evidentiary

hearing, 'bald assertions' are not enough—rather, the defendant 'must allege

facts sufficient to demonstrate counsel's alleged substandard performance.'"

(quoting Porter,  216 N.J. at 355)).

      We are satisfied that defendant failed to make a prima facie showing of

IAC within the Strickland/Fritz test to warrant relief, and we discern no abuse

of discretion in the judge's denial of his petition without an evidentiary hearing .2


2
  Notably, defendant never even averred that but for counsel's purported errors,
he would not have pled guilty and would have insisted on going to trial. In order
to establish the Strickland prejudice prong to set aside a guilty plea based on
IAC, in addition to showing "there is a reasonable probability that, but for


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See State v. Brewster,  429 N.J. Super. 387, 401 (App. Div. 2013) ("[W]e review

under the abuse of discretion standard the PCR court's determination to proceed

without an evidentiary hearing."); State v. Reevey,  417 N.J. Super. 134, 146-47

(App. Div. 2010) ("[I]t is within our authority to conduct a de novo review of

both the factual findings and legal conclusions of the PCR court" where, as here,

no evidentiary hearing was conducted (citations and internal quotation marks

omitted)). We agree with the judge that defendant's conclusory, speculative,

and unsupported assertions are fatal to his petition. Indeed, "[d]efendant must

demonstrate a prima facie case for relief before an evidentiary hearing is

required, and the court is not obligated to conduct an evidentiary hearing to

allow defendant to establish a prima facie case not contained within the

allegations in his PCR petition." State v. Bringhurst,  401 N.J. Super. 421, 436-

37 (App. Div. 2008).

      Affirmed.




counsel's errors, [the defendant] would not have pled guilty and would have
insisted on going to trial," DiFrisco,  137 N.J. at 457 (alteration in original)
(quoting Hill,  474 U.S. at 59), "'a [defendant] must convince the court that a
decision to reject the plea bargain'" and "insist on going to trial" would have
been "'rational under the circumstances.'" State v. Maldon,  422 N.J. Super. 475,
486 (App. Div. 2011) (quoting Padilla v. Kentucky,  559 U.S. 356, 372 (2010)).
The latter determination should be "based on evidence, not speculation." Ibid.
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