NOT FOR PUBLICATION

PER CURIAM.

Defendant Jamil Mateen appeals the July 31, 2009 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The record reveals that on February 17, 2004, defendant waived indictment and was charged with one count of first-degree armed robbery, N.J.S.A. 2C:15-1. The incident leading to this charge occurred on December 14, 2003. Defendant threatened people in Neptune Township with a replica handgun and demanded that they give him money.

Immediately after waiving indictment, as the result of a plea agreement with the State addressing the accusation and two other pending indictments, defendant pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1, third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10, and third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-2. In return for the guilty pleas, the State agreed to dismiss all remaining counts of the indictments and recommend an aggregate sentence of fourteen years imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the plea hearing, Judge Anthony J. Mellaci, Jr., questioned defendant regarding the voluntariness of his plea. Defendant confirmed that no one was forcing or threatening him to waive the right to indictment, and that he did so of his own free will after conferring with his attorney. The judge then asked defendant whether he understood the plea.

In response to the judge's further questions, defendant confirmed that he was literate, that he did not suffer from physical or mental illness, and that he was not currently under the influence of any substance that would impair his ability to understand the proceedings. The judge next asked about the signing of the plea form, and defendant confirmed that he went over it with his defense attorney and the attorney had answered all his questions. When the defendant asked the judge a question concerning the applicability of NERA to the charges, the judge directed defense counsel to confer with defendant outside the courtroom in a private setting to clarify the issue. When the two reentered the courtroom, Judge Mellaci again questioned defendant about his understanding and acceptance of the plea agreement; defendant agreed that he understood the agreement in its entirety and wanted to enter into it. Defendant also testified he was satisfied with the services of his attorney.

Defendant next appeared before Judge Mellaci on April 30, 2004. Pursuant to the negotiated plea, the trial judge sentenced defendant to a fourteen-year prison term with an eighty-five percent period of parole ineligibility pursuant to the NERA, and required him to pay the requisite fines and costs. The judge dismissed the remaining charges against defendant.

Subsequently, defendant filed a motion to correct an illegal sentence in the Law Division on September 10, 2004, which was dismissed for lack of jurisdiction because defendant had an appeal pending in the Appellate Division. We affirmed defendant's conviction and sentence on March 14, 2006. State v. Mateen, No. A-2062-04 (App. Div. March 14, 2006). On May 26, 2006, defendant appealed from the order dismissing his motion to correct an illegal sentence, and we affirmed the dismissal on April 25, 2007. State v. Mateen, No. A-4662-05 (App. Div. April 25, 2007). Defendant filed a petition for certification in the Supreme Court, which was denied on March 27, 2008. 194 N.J. 445 (2008).

Defendant filed a PCR petition on October 1, 2008, alleging that miscommunications between himself and his attorney had caused him to involuntarily plead guilty. After being assigned counsel, he raised the following point:

On July 31, 2009, Judge Mellaci, after hearing argument, denied defendant's PCR petition. The judge noted at the outset that defendant's claim was barred under Rule 3:22-4, since he had several opportunities to bring the ineffective assistance claim on any of his previous appeals but had failed to raise this claim. He also noted that defendant did not contend that enforcing this procedural bar would result in a fundamental injustice.

Nevertheless, Judge Mellaci decided to address defendant's substantive claims. The judge found that defendant had failed to prove ineffective assistance of counsel under Strickland1, by failing to present a prima facie case that his attorney's performance fell below the objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different. He held that defendant's unsupported contentions, that his attorney barely communicated with him, failed to conduct an independent investigation of the armed robbery offense, and failed to make appropriate applications to reduce defendant's charge from first- to second-degree robbery, were entirely without merit. The judge noted that defendant alleged no facts to demonstrate what an investigation would have revealed, rendering his claims mere bald assertions. The judge also noted that defendant testified under oath that he was satisfied with his counsel's representation and counsel had answered all his questions.

The judge also determined that counsel's performance at both the trial level and the appellate proceedings was reasonable. The judge pointed out that, based on defendant's extensive past criminal record, he faced a potential life sentence on the charges. With the assistance of counsel, defendant received a sentence of fourteen years, subject to the NERA parole disqualifier. At the plea hearing, defendant had also provided a factual basis for the plea and affirmed that no one had pressured him into entering the plea. Thus, the judge concluded that defendant did not establish a prima facie case of ineffective assistance of counsel.

Next, addressing the issue of plea withdrawal, the judge determined that, after weighing all four Slater2 factors for withdrawing a guilty plea after sentencing, defendant had not demonstrated that he should be allowed to vacate his plea. In considering the first factor, the judge noted that defendant made no colorable claim of innocence. As to the second factor, which requires consideration of the nature and reasons for plea withdrawal, the judge found defendant's claim of ineffective assistance of counsel lacked merit.

The judge noted that consideration of the third factor, which permitted a plea to be withdrawn only in the rarest of circumstances if the plea was the result of a plea bargain, did not inure to defendant's favor. Pursuant to the fourth factor, the judge found that unfair prejudice to the State would result from plea withdrawal as the underlying incident occurred over five years ago, making it very difficult to gather witnesses and evidence. Based upon these factors, the judge concluded that defendant had failed to satisfy the requirements of Rule 3:21-1, which allows a court to permit withdrawal of a guilty plea after sentencing only to correct a manifest injustice. For these reasons, the court denied defendant's petition for PCR. This appeal followed.

Defendant raises the following contentions on appeal:

The relevant principles concerning PCR petitions are well-settled. A person making a prima facie showing of entitlement to relief, by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits, is generally entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 463 (1992). Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Next, defendant must show that his attorney's deficient performance prejudiced his defense. Ibid.

To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide representation that "`was within the range of competence demanded of attorneys in criminal cases.'" Strickland, supra, 466 U.S. at 687, 106 S. Ct. at 2064, 88 L. Ed. 2d at 693 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, the defendant must show that "`there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)).

In order to justify withdrawing a guilty plea premised on ineffective assistance of counsel, defendant must satisfy a modified Strickland standard.

Furthermore, in addressing a withdrawal of a guilty plea, our Supreme Court has set forth the following standard:

Based upon our review of the record and the applicable law, we conclude defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We are satisfied that Judge Mellaci made detailed findings, which are amply supported by the record, and he correctly concluded that there was no showing that defendant's attorney was ineffective or that defendant was prejudiced by the allegedly defective performance. Moreover, the judge correctly balanced the Slater factors and concluded that justice would not be served by vacating the plea. Accordingly, we affirm the July 31, 2009 order denying defendant's PCR petition substantially for the reasons stated in Judge Mellaci's oral decision.

Affirmed.