NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant argues that the motion judge erred in denying his petition because his trial counsel failed to file a Wade1 motion challenging the victim's selection of his photograph from a photo array and misadvised him that if he were convicted following a jury verdict finding him guilty of first-degree armed robbery, N.J.S.A. 2C:15-1, unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5a, "he could be sentenced to no more than the sentence recommended in the State's plea offer": nine years' imprisonment, subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm essentially for the reasons set forth by Judge Michael A. Petrolle, in his well-reasoned opinion from the bench. We add only the following by way of context.
Defendant was indicted for first-degree armed robbery of Danuton Moore, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. Prior to trial, defendant executed a pretrial memorandum wherein he acknowledged that, if convicted, his maximum sentence would be twenty years' imprisonment, subject to NERA, and that the State had extended a plea offer of nine years' imprisonment, subject to NERA. Moreover, defendant acknowledged that if he were convicted following trial, "the court could impose a more severe sentence than recommended by the plea offer" up to the maximum sentence for a first-degree offense. Defendant rejected the plea offer and elected to go to trial.
Following trial, defendant was found guilty by a jury of first-degree robbery, N.J.S.A. 2C:15-1.2 The trial court sentenced him to sixteen years in state prison with an eighty-five percent period of parole ineligibility pursuant to NERA and imposed the requisite monetary assessments and penalties. We affirmed his conviction on appeal, State v. Laberth, No. A-3041-07 (App. Div. May 19, 2009), and the Supreme Court denied his petition for certification. 200 N.J. 370 (2009).
The proofs adduced at trial showed that on December 21, 2005, in the City of Newark, Danuton Moore was placing his tools in his truck, having just finished repairing a window in a nearby home. Two men, one wearing a mask, approached him quickly, grabbed him, and demanded money. The man without the mask pushed Moore up against the truck and searched Moore's pockets. The masked man stuffed something in his pocket, pointed it at Moore as if it were a gun, and told Moore to freeze and give them his money or he would shoot. The men took Moore's wallet, cell phone, and keys. They then told Moore to get more money from the house where he had been working, and if he did not come out in five minutes, they would go in shooting. Once inside the house, Moore called the police and then observed the two men ransack the truck, taking his stereo and radar detector. The two men fled before the police arrived.
Since Moore had seen the face of the robber who was not wearing a mask, he was shown approximately 100 photographs at the police station but could not identify the robber from them. The police gathered four latent fingerprints from the interior of the truck, which were then sent to the State Police for processing in the Automated Fingerprint Identification System. Defendant's fingerprints came up as a likely candidate. Detective John Patela of the Newark Police Department compared defendant's fingerprints with those taken from the truck and determined that they matched. The police then told Moore that they had matched the fingerprints and asked him to view more photographs, which he did. Moore identified defendant from an array of six photographs, and he identified defendant at trial. The State's evidence connecting defendant to the crime was based on Moore's identification and the fingerprint match. Defendant did not testify or present witnesses at trial.
The standards that guide our review are well-known. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "`that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed ... by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 52.
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief...." R. 3:22-10(b). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10(e)(2) (providing that the court "shall not grant an evidentiary hearing ... if the defendant's allegations are too vague, conclusory or speculative").
"To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Russo, 333 N.J.Super. 119, 138 (App. Div. 2000) (citations and emphasis omitted); see also R. 3:22-10(b) ("To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.").
Importantly, a "[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); see also R. 3:22-10(e)(3) (providing that no evidentiary hearing shall be held "for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success"). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Here, to succeed on his PCR, defendant was required to demonstrate that his Wade motion likely would have been granted. The failure to file a meritless motion cannot constitute ineffective assistance of counsel. State v. O'Neal, 190 N.J. 601, 619 (2007). Defendant is unable to persuasively demonstrate that his Wade motion would have likely succeeded under the facts here. The witness was shown the photo array in sequential order after having received appropriate instructions from an uninvolved officer. Accordingly, even if defense counsel had filed a Wade motion, there is no likelihood that it would have succeeded.
Also, defendant knew from the pretrial order the maximum sentencing exposure he faced if he lost at trial, and understood that his sentence could exceed the plea offer.
Affirmed.
