NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from the trial court's September 16, 2011, order denying, without an evidentiary hearing, his petition for post-conviction relief. We affirm.

I.

Pursuant to a plea agreement, defendant pleaded guilty to one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and one count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). He thereby resolved a twenty-one count indictment that included one count of first-degree murder, N.J.S.A. 2C:11-3; three counts of first-degree attempted murder, N.J.S.A. 2C:11-3,:5-1; and multiple counts of second- and fourth-degree aggravated assault, and second- and third-degree weapons offenses. The plea also resulted in the dismissal of a separate indictment charging defendant with a second-degree certain persons offense.

At his plea hearing, defendant testified that he had prior altercations with a Crips gang member with the street name, Blues Clues (BC). On April 11, 2006, while in Plainfield and armed with a firearm, defendant pursued BC down the street and attempted to shoot him. Defendant missed his "moving target" and instead shot a male bystander who subsequently died from his injuries. Defendant also struck a female bystander, who suffered a bullet wound to her leg.

Defendant acknowledged, in response to his attorney's questioning, that he was waiving intoxication and passion provocation defenses. Defendant conceded it was unclear his intoxication negated an element of the offense. He also agreed that his attorney had explained the difficulties in pursuing the passion provocation defense in view of the evidence. Responding to the assistant prosecutor's question, defendant acknowledged that he faced a potential sentence of thirty years to life if convicted of murder, and was extended term eligible because of prior weapons-related convictions. Defendant also acknowledged that he faced the risk of consecutive sentences, related to each of the three victims. He agreed that he waived any defenses to avoid the risk of a murder conviction. Judge Scott J. Moynihan reviewed with defendant that by pleading, he forfeited the opportunity to file "any motions that might be left to be decided in your favor ... like a motion to suppress evidence or suppress a statement."

At the sentencing hearing, defense counsel addressed a statement in the presentence report, which attributed to defendant the claim that he saw BC possess a gun.1 Counsel clarified that defendant did not see a gun in BC's possession on the day of the shooting. He merely believed he had a gun based on his knowledge that BC previously carried weapons. Defense counsel asserted that BC had broken defendant's jaw in a prior incident and defendant feared another assault. However, defense counsel stated that when defendant saw BC, defendant "retrieved" his weapon to protect himself, and then chased BC in the public street. He discharged his weapon as he and his intended victim ran.

In an extensive sentencing argument, defense counsel asked the court to sentence defendant to twenty-five years, mindful that under the plea agreement the State sought twenty-eight years. Without attempting to excuse defendant's behavior, she stated defendant feared BC and wanted to protect himself. She also referred to defendant's state of intoxication. She argued that defendant was remorseful; he had expressed the desire to change his life before the incident; and he was the father of several children, including a one-year-old with whom he lived. Defense counsel attempted to minimize his prior record, and argued imprisonment would entail a hardship to his children. She also stated defendant's conduct resulted from circumstances unlikely to recur, and he was willing to pay restitution after release.

Consistent with the plea agreement, on August 17, 2007, Judge Moynihan sentenced defendant to a term of twenty-eight years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the aggravated manslaughter charge, and a concurrent flat five-year term on the third-degree aggravated assault charge. Judge Moynihan reviewed defendant's prior record, including multiple probation violations. The judge concluded defendant had an extensive prior criminal record and posed a risk of reoffending. See N.J.S.A. 2C:44-1(a)(3), (6). The court also found a need to deter. See N.J.S.A. 2C:44-1(a)(9).

The court found no mitigating factors. The court concluded that the hardship to defendant's family was not substantial enough to warrant a finding that it was a mitigating factor. See N.J.S.A. 2C:44-1(b)(11). There also was insufficient evidence, especially in view of defendant's record, to find the circumstances were unlikely to recur. See N.J.S.A. 2C:44-1(b)(8). The court rejected the likelihood that defendant would pay restitution. See N.J.S.A. 2C:44-1(b)(6). Judge Moynihan also stated that the prior altercation between defendant and BC did not excuse or justify defendant's behavior. See N.J.S.A. 2C:44-1(b)(4). The court finally considered the recklessness and dangerousness of defendant's behavior.

Judge Moynihan stated, in the judgment of conviction, that he was clearly convinced that the aggravating factors substantially outweighed the non-existent mitigating factors, and a sentence longer than twenty-eight years could have been imposed under the circumstances. Nonetheless, the court decided to give defendant the benefit of the negotiated plea agreement.

Defendant filed a direct appeal of his sentence, which an excessive sentencing panel affirmed on March 31, 2009. See R. 2:9-11.

In November 2009, defendant filed his pro se petition. He presented five claims of ineffective assistance of counsel:

Appointed counsel filed a supplemental brief that presented the following four points:

In support of his petition, defendant stated his attorney never discussed "the principles of self-defense or intoxication or any potential effect that these issues may have had on receiving a plea offer." He claimed he was "both intoxicated and under the influence of a narcotic" when he committed the crimes.

Judge Moynihan denied PCR in a thorough oral opinion. He applied the two-prong test for determining whether defendant was entitled to PCR. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 698 (1984) (defendant must establish: (1) that his counsel's performance was deficient, and counsel made errors so serious that he or she was not functioning as guaranteed by the Sixth Amendment; and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). Citing State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), Judge Moynihan concluded defendant failed to present cognizable evidence in support of his petition.

In particular, defendant failed to present evidence of self-defense or intoxication, which, defendant claimed, his trial counsel ineffectively failed to utilize. Moreover, defendant waived both defenses at his plea hearing. Regarding self-defense, there was no evidence that BC was armed, or confronted defendant with death or serious bodily harm. Rather, defendant pursued BC. The court noted trial counsel's statement at sentencing that defendant retrieved his firearm before pursuing BC.

As for intoxication, there was no evidence of the amount of alcohol or drugs consumed, over what period of time, or its effect on defendant. Moreover, the judge noted that defendant acted purposefully in retrieving his firearm and pursuing BC, which was inconsistent with the level of intoxication that would negate the ability to act intentionally.

The court found that defendant's claim of excessive sentence was barred by Rule 3:22-4, and in any event, lacked merit. Citing State v. Bieniek, 200 N.J. 601, 609 (2010), for the principle that a court need not address each and every mitigating factor argued by a defendant, Judge Moynihan noted that he nonetheless addressed the mitigating factors suggested by trial counsel, pertaining to hardship to family. See N.J.S.A. 2C:44-1(b)(11). The judge also found no basis for factors four, ten and twelve. See N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"); N.J.S.A. 2C:44-1(b)(10) ("The defendant is particularly likely to respond affirmatively to probationary treatment"); N.J.S.A. 2C:44-1(b)(12) ("The willingness of the defendant to cooperate with law enforcement authorities"). The court referred to the lack of proofs of intoxication and provocation; and defendant's poor prior record, including previous probation violations. The court also concluded that a guilty plea alone did not constitute cooperation sufficient to trigger factor twelve.

Judge Moynihan considered the remaining points presented in defendant's pro se petition. He concluded that the record of the plea hearing belied defendant's claim his trial counsel did not confer, discuss defenses and review discovery; and he was coerced into pleading. Defendant expressly acknowledged that by pleading, he gave up the right to file a Miranda2 motion. In any event, there was no evidence that his intoxication was sufficient to prevail on such a motion.

This appeal followed. Defendant presents the following points for our consideration:

II.

We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. Having reviewed defendant's points on appeal in light of the record and the applicable legal principles, we affirm the denial of PCR substantially for the reasons stated in Judge Moynihan's thorough oral opinion. We add the following brief comments.

In an argument not raised before the PCR court, defendant asserts that trial counsel and appellate counsel were ineffective by failing to argue mitigating factors four, ten, eleven and twelve. We disagree.

First, there was no prima facie proof that trial counsel was ineffective in her sentencing argument. As we have reviewed, she presented an extensive plea for leniency. Although counsel did not expressly argue factors ten and twelve, she referred to facts and circumstances relevant to factors four and eleven, and argued other factors as well. Second, there was no conceivable prejudice from the omission from the argument of additional mitigating factors. In denying PCR, Judge Moynihan found substantial support in the record that those factors did not apply. As he observed, had he not abided by the negotiated plea agreement, he may well have imposed a harsher sentence.

We also discern no merit in defendant's argument that trial counsel was ineffective by failing to move to suppress his statement. Defendant must show that a suppression motion would have succeeded. See State v. O'Neal, 190 N.J. 601, 619 (2007) ("It is not ineffective assistance of counsel for defense counsel not to file a meritless motion...."). Here, defendant has not provided cognizable evidence that he was so intoxicated that his statement to police could have been deemed involuntary or unintentional, especially in view of the admitted facts that defendant had the presence of mind to identify his enemy, retrieve a gun, chase him down, and attempt to shoot him, although he killed one bystander and injured another in the process. See, e.g., State v. Wade, 40 N.J. 27, 35 ("A confession made by a person while under the influence of drugs is not per se involuntary."), cert. denied, 375 U.S. 846, 84 S.Ct. 100, 11 L. Ed. 2d 73 (1963); State v. Warmbrun, 277 N.J.Super. 51, 64 (App. Div. 1994) (affirming trial court's conclusion that a "very intoxicated" defendant was capable of a "knowing and intelligent waiver" of his Miranda rights), certif. denied, 140 N.J. 277 (1995).

In any event, defendant has failed to present us with his Mirandized statement, or other discovery. Therefore, it is impossible to determine whether, even if a Miranda motion were successful, it would have affected plea negotiations or defendant's decision not to go to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (stating that where a defendant claims that as a result of attorney ineffectiveness, he pleaded guilty instead of going to trial, the petitioner must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.").

Defendant's remaining arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.