NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from a November 3, 2014 order denying his petition for post-conviction relief (PCR). Defendant argues he received ineffective assistance from his trial and appellate counsel. We affirm.

In June 2009, defendant and a co-defendant conspired to steal car radios in Elizabeth. The police encountered defendant and co-defendant stealing a car radio. Defendant fled in a car he knew to be stolen.1 Defendant traveled at a high rate of speed, approximately ninety miles per hour over the border of Elizabeth into Newark. Defendant broadsided another driver, resulting in the driver's death. Defendant then fled the scene on foot.

An Essex County grand jury indicted and charged defendant with conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2 (Count One); third-degree burglary, N.J.S.A. 2C:18-2 (Count Two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (Count Three); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (Count Four); second-degree vehicular homicide, N.J.S.A. 2C:11-5 (Count Five); third-degree leaving the scene of an accident, R.S. 39:4-129, N.J.S.A. 2C:12-1.1 (Count Six); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (Count Seven); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Eight). Defendant pled guilty to third-degree conspiracy to commit burglary, first-degree aggravated manslaughter, and third-degree receiving stolen property.

The judge held a Miranda2 hearing to determine the admissibility of defendant's statements to the police. The judge admitted defendant's statements, finding defendant knowingly, intelligently and voluntarily waived his Miranda rights. The judge also denied defendant's motion to withdraw his guilty plea, finding that defendant made no colorable claim of innocence.

Defendant was sentenced to seventeen years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, also the judge imposed appropriate fines and penalties. We affirmed defendant's sentence as part of our excessive sentencing oral argument calendar, R. 2:9-11. Defendant filed a petition for PCR, which was denied.

On appeal, defendant raises the following arguments:

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ronald D. Wigler in his well-reasoned written opinion. We add the following comments.

For a defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. ___, ___, 132 S.Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S.Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

An evidentiary hearing should be conducted when the facts, viewed in the light most favorable to defendant, establish a prima facie showing of ineffective assistance of counsel and demonstrate a reasonable likelihood of success under the Strickland test. State v. Preciose, 129 N.J. 451, 462-63 (1992); see also State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (requiring a defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999).

Defendant's argument that counsel failed to challenge the factual basis for aggravated manslaughter lacks merit. Here, defendant, after being caught attempting to steal a car radio, fled at a high rate of speed, well over the speed limit of twenty-five miles per hour. Defendant admitted during his plea colloquy that he was traveling so fast that he did not even see the car he collided with until near impact, and that his high-speed driving through a residential area "created a great risk of danger for people that potentially could have resulted in death." Thus, it is clear that defendant's driving, which was estimated at approximately ninety miles per hour in a twenty-five mile per hour area, evinces the type of reckless disregard for human life sufficient to support a conviction for aggravated manslaughter. N.J.S.A. 2C:11-4(a). Because the charge was more than adequately supported, counsel was not required to present unfounded, futile arguments. We conclude defendant falls far short of establishing either prong of Strickland on this issue.

We also reject defendant's argument that he was misled by counsel about his sentencing exposure. As the judge properly noted, during the plea hearing the State made clear it would recommend a twenty-year prison term. The judge stated he would consider "any arguments to be made in considering a range of 15 to 20 [years]." The judge correctly concluded that defendant was not induced to enter a plea under false pretenses nor did the actual seventeen-year sentence result in significant harm to defendant.

Finally, defendant's argument that appellate counsel was ineffective for failing to raise the issue of the withdrawal of his plea is also without merit. As the judge properly noted, defendant fails to satisfy the factors set forth in State v. Slater, 198 N.J. 145, 150 (2009) for withdrawing a guilty plea. Thus, as counsel cannot be ineffective for failing to raise an argument that would not have been successful, defendant fails to establish the first prong of Strickland. Moreover, defendant has not established under prong two of Strickland that even if the issue had been raised on appeal, the outcome would have been different. Thus, defendant is not entitled to PCR on this issue. See Fritz, supra, 105 N.J. at 52 (explaining that to satisfy prong two of Strickland, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (citation omitted)).

Affirmed.