NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
I
On December 10, 2009, defendant was indicted for first degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first degree kidnapping, N.J.S.A. 2C:13-1(b); first degree robbery, N.J.S.A. 2C:15-1; first degree felony murder while attempting to commit robbery, N.J.S.A. 2C:11-3(a)(3); first degree felony murder while attempting to commit kidnapping, N.J.S.A. 2C:11-3(a)(3); first degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2); second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b); second degree aggravated assault, N.J.S.A. 2C:12-(1)(b); third degree assault with a deadly weapon, N.J.S.A. 2C:12-(1)(b)(2); and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4.
On January 27, 2010, defendant pled guilty to the charges of first degree felony murder while attempting to commit robbery and second degree conspiracy to commit robbery. Under the plea agreement, the State agreed to dismiss the remaining counts and recommend a thirty-eight year sentence for the felony murder, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent, seven-year term for the conspiracy to commit robbery.
On April 29, 2010, the court sentenced defendant in accordance with the plea agreement and, in addition to fines and penalties, imposed restitution in the amount of $4330. During the sentencing hearing, defendant sought but was denied a motion to withdraw her plea. Defendant appealed her sentence and the denial of the motion. We affirmed the sentence, see State v. Myers, A-1539-10T4 (June 28, 2011), and the denial of the motion, see State v. Myers, M-6979-10 (A-159-10T4) (August 1, 2011), on an Excessive Sentence Oral Argument (ESOA) calendar pursuant to Rule 2:9-11. On February 23, 2012, the Supreme Court denied her petition for certification. State v. Myers, 209 N.J. 430 (2012).
On March 21, 2012, defendant filed a pro se PCR petition but was subsequently assigned counsel. In a comprehensive written opinion, the PCR court denied the relief sought in defendant's petition.
II
As neither party challenges the sufficiency of the PCR court's factual findings, we incorporate them by reference. For background, we provide a brief summary of the pertinent facts. A witness heard co-defendant, Ashley McLaughlin, admit she and defendant killed a man and dumped his body in the woods. The witness also observed defendants clean blood from the victim's car. McLaughlin later confessed that she helped defendant strike the victim on the head and face with a hammer, and strangle him with a cord.
Defendant confessed to the police that she and McLaughlin conspired to steal the victim's wallet. In the course of carrying out their plan, they hit the victim on the head with a hammer, tied his hands behind his back, and strangled him. Defendants took the victim's wallet and drove off in his car, leaving him in the woods. The victim's body was found in the same location described by defendant, and his blood was on a hammer discovered in defendants' home.
Before defendant pled guilty she filed an ethics complaint against her attorney, claiming he did not care for her or her case. During the plea hearing, she stated she was satisfied with her attorney and the plea agreement.
Just before defendant was sentenced, she submitted a letter to the court asking for leniency but also acknowledged she had been "wrong for taking a life." During the sentencing hearing, however, she interrupted her attorney while he was addressing the court and announced she wanted to withdraw her plea. Defense counsel requested that defendant be permitted to address the court directly. Defendant then argued a motion to withdraw the plea. The court addressed the four factors a court must consider when determining whether to grant a motion to withdraw a guilty plea, see State v. Slater, 198 N.J. 145, 157-58 (2009),1 but found none applied and denied the motion.
In her direct appeal defendant challenged the denial of her motion to withdraw the plea. Specifically, defendant argued that the factual basis to her plea did not support a conviction for felony murder but, even if it did, the factual basis satisfied the elements for the affirmative defense to this crime. See N.J.S.A. 2C:11-3(a)(3)(a),(b),(c), and (d). We disagreed and affirmed the denial of her motion.
III
Defendant raises the following points for our consideration.
POINT I — BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STANDARDS ARTICULATED IN STRICKLAND V. WASHINGTON, STATE V. FRITZ AND STATE V. PRECIOSE, UNDER R. 3:22-2 CRITERIA, THE PCR COURT MISAPPLIED ITS DISCRETION BY DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
A. THE PCR COURT ERRED IN FAILING TO FIND INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING THE DEFENSE ATTORNEY'S FAILURE TO ADVOCATE FOR HIS CLIENT DURING THE DEFENDANT'S MOTION TO WITHDRAW HER GUILTY PLEA CONTRARY TO THE DICTATES OF STATE V. BARLOW.
B. THE PCR COURT ERRED BY FAILING TO FIND A CONFLICT OF INTEREST BY TRIAL COUNSEL STEMMING FROM AN ETHICS COMPLAINT THAT RENDERED THE ATTORNEY INEFFECTIVE.
C. THE PCR COURT ERRED IN FAILING TO FIND INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING THE DEFENSE ATTORNEY'S FAILURE TO FILE A MIRANDA MOTION TO SUPRESS STATEMENTS SHE ALLEGEDLY MADE TO THE POLICE.
D. REMAND IS REQUIRED BECAUSE (1) DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO REQUEST A RESTITUTION HEARING TO DETERMINE THE DEFENDANT'S ABILITY TO PAY; AND (2) THE PCR COURT DID NOT ADDRESS OR MAKE A RULING ON THIS ISSUE.
POINT II — BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING PURSUANT TO STATE V. PORTER, AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE, REQUIRING REMAND.
POINT III — THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV — REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.
We are not persuaded by any of these arguments and affirm.
"A petitioner must establish the right to [PCR] by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citations omitted). "To sustain that burden, specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). Merely raising a PCR claim does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (citing Preciose, supra, 129 N.J. at 462), certif. denied, 162 N.J. 199 (1999). PCR courts may grant evidentiary hearings and make a determination on the merits of a defendant's claim, but only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64; see also R. 3:22-10.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L. Ed. 2d 657 (1984), which we adopted in State v. Fritz, 105 N.J. 42, 58 (1987)." Preciose, supra, 129 N.J. at 463. A defendant must meet both prongs of this test, which are: (l) that counsel's performance was deficient and he 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 right 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, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
However, a modified Strickland standard applies when a defendant has entered a guilty plea:
When a guilty plea is part of the equation,. . . "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) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
Moreover, under the second Strickland prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
Here, defendant contends her attorney rendered ineffective assistance because he failed to file a motion to withdraw her plea or, at the least, argue the motion on her behalf at the sentencing hearing. Specifically, she claims her attorney abandoned her, leaving her, an unskilled advocate, to argue the motion. But in the final analysis, defendant's arguments are that the factual basis to her plea did not support a conviction for felony murder, although did fulfill the elements of the affirmative defense to this crime and thus provided her with a "colorable claim of innocence." See Slater, supra, 198 N.J. at 157. These arguments were raised on direct appeal and thus are procedurally barred by Rules 3:22-4 and 3:22-5.
Defendant next contends her attorney should not have continued representing her once she filed the ethics complaint against him. However, at the plea hearing, which took place after she filed the ethics complaint, defendant conceded she was satisfied with her attorney's representation. Second, she makes no showing counsel's assistance was in fact outside "the range of competence demanded of attorneys in criminal cases," see Nuñez-Valdéz, supra, 200 N.J. at 139 (citations omitted), or that it would have been rational to reject the plea under the circumstances. See Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297.
Defendant argues her attorney was ineffective for failing to seek a Miranda2 hearing on the grounds she was too inebriated from alcohol and impaired from drugs to have competently waived her Miranda rights at the time she confessed to the police. But even if a Miranda hearing had been held and the confession deemed inadmissible, there was other damaging evidence. Defendant does not address the strength of this other evidence and its potential to support a conviction. Moreover, she does not advocate that, even if the confession had been suppressed, it would have been rational to have withdrawn the plea and proceed to trial in light of the charges, the evidence amassed by the State, and the potential of facing many more years in prison than what her attorney negotiated under the plea agreement.
Finally, defendant contends that when the trial court ordered defendant to pay $4330 in restitution at the sentencing hearing, defense counsel failed to request a restitution hearing to determine defendant's ability to pay. See State v. McLaughlin, 310 N.J.Super. 242, 263-64 (App. Div.), certif. denied, 156 N.J. 381 (1998). But defendant does not suggest it would have been rational to have rejected the plea bargain even though a restitution hearing was not held.
Although not raised in a point heading, in her brief defendant argues her attorney was ineffective because he failed to contact alibi witnesses. Defendant did not provide any certifications or affidavits from these witnesses to support this claim, see Cummings, supra, 321 N.J. Super. at 170; therefore, we reject this argument.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel. Accordingly, the PCR court correctly concluded that an evidentiary hearing was unnecessary and the dismissal of the petition warranted. See Preciose, supra, 129 N.J. at 462-63.
Affirmed.
