NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

SUMNERS, Jr., J.A.D.

Defendant Floyd Webb appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I

On December 22, 2009, defendant was arrested for selling marijuana near the McGuire Gardens public housing complex. He was subsequently charged under Indictment No. 10-02-0465 with fourth-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count one), and third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1(a) (count two).

On January 7, 2010, defendant and a co-conspirator were arrested for the same offenses at the same location, and were subsequently charged under Indictment No. 10-05-1449 with fourth-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count one), third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1(a) (count two), and fourth-degree conspiracy to possess a CDS with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(12) (count three).

Defendant's transgressions continued on April 6, 2010, when he was arrested for selling marijuana at the same location as his two prior arrests. This time, defendant waived his right to indictment, and was charged under Accusation No. 10-06-1932 with N.J.S.A. 2C:35-7.1(a), third-degree possession of marijuana with intent to distribute within 500 feet of the Odessa Paulk public housing complex. However, Odessa Paulk was not a public housing complex within 500 feet of where defendant allegedly distributed CDS. Neither of the indictments specifically name the public housing complex, park, or building at issue.

On June 25, 2010, defendant, represented by counsel, pled guilty pursuant to a negotiated plea agreement to three counts — count two of Indictment Nos. 10-02-0465 and 10-05-1449 and count one of Accusation No. 10-06-1932 — of third-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility. A month later, defendant was sentenced in accordance with the plea agreement to three years' imprisonment with an eighteen-month period of parole ineligibility on each count to run concurrently with each other. The remaining counts of the indictments, as well as related summonses and a warrant, were dismissed.

Defendant did not appeal his conviction. However, on March 23, 2011, he filed a pro se petition for PCR, arguing that his conviction arising from the April 6, 2010 arrest be reversed and vacated because it was "induced and obtained by and through tainted police misconduct." Defendant based his claim of misconduct on a flyer of unknown authorship and origin which had been circulated around Camden County Correctional Facility, apparently directed to inmates. The flyer intimated that certain police officers on the Anti-Crime Task Force were making false drug arrests and if they were involved in an inmate's arrest, the inmate should report their conduct to Internal Affairs-Camden Division. Defendant contended that two of the officers involved in his April 6 arrest were mentioned in the flyer, and had he been aware of this information before entering his plea, he would have elected to go to trial instead of admitting guilt. Defendant argues that the State had a duty to inform him of the officers' "pending investigation," pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963), and as adopted by State v. Nelson, 155 N.J. 487, 497 (1988). Defendant also requested and received assigned counsel.

PCR counsel submitted a supplemental petition and brief adopting defendant's pro se contention that the State's failure to disclose that the arresting police officers were under investigation for misconduct was a Brady violation. Furthermore, PCR counsel added the contention of ineffective assistance of counsel (IAC) that, had trial counsel adequately investigated the allegations that defendant was distributing marijuana within 500 feet of the Odessa Paulk Housing Complex as set forth in Accusation No. 10-06-1932, she would have discovered that no such complex existed within 500 feet of where he was arrested. Defendant argues that had he been made aware of this, he would not have pled guilty; thus, his plea was not given knowingly and voluntarily.

On December 7, 2012, following oral argument, the PCR court issued an order and a comprehensive decision from the bench denying defendant an evidentiary hearing and dismissing his petition. The court rejected the State's argument that defendant's Brady claim should be procedurally barred pursuant to Rule 3:22-4 because it should have been raised on direct appeal. Citing State v. Martini, 144 N.J. 603, 609-10 (1996), the court determined that defendant alleged facts that are outside the record, and as such, it was appropriate to raise them in his PCR petition. However, applying the three Brady factors,1 the court found that defendant provided no credible evidence of police misconduct, and the alleged misconduct was not favorable and material to the defense because the investigating officer and arresting officer involved with his April 6, 2010 arrest were not identified on the flyer as being under investigation. The court further noted that defendant failed to provide an affidavit that had he known that about the misconduct he would not have pled guilty.

As for the claim of IAC, the PCR court found defendant did not establish a prima facie case as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by State v. Fritz, 105 N.J. 42 (1987). The court found that trial counsel was deficient in identifying a housing complex not located in the area of defendant's arrest, thus satisfying the first prong of the two-prong Strickland-Fritz standard. However, the PCR court found that the second prong, counsel's deficiency prejudiced defendant, was not satisfied. Defendant does not claim that he was not within 500 feet of a public housing complex while he possessed, distributed, or dispensed CDS, as proscribed by N.J.S.A. 2C:35-7.1. The misstatement in Accusation No. 10-06-1932 that defendant was within 500 feet of Odessa Paulk was not critical given that he "was in fact within 500 feet of any public housing complex at the time he possessed a [CDS] he would be in violation of N.J.S.A. 2C:35-7.1."2 The court furthered noted that defendant's offense in the accusation took place at the same location and for the same offense that was set forth in Indictment No. 10-05-1449. This appeal followed.

Before us, defendant raises the following single argument:

II

It is well-settled that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and Fritz, supra, 105 N.J. at 58. The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove this element, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In considering IAC claims concerning a guilty plea, defendant must satisfy a modified Strickland-Fritz standard:

A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). The mere raising of a claim for PCR does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013).

A defendant's constitutional right to effective assistance of counsel extends to a PCR petition when raising IAC claims for the first time. State v. Quixal, 431 N.J.Super. 502, 513 (App. Div. 2013). Normally, we are inclined not to determine an IAC claim against PCR counsel on an appeal from denial of an initial PCR petition for the same reasons that we disapprove of IAC claims on direct appeal. The reason being that both circumstances pertain to "allegations and evidence that lie outside the trial record." Preciose, supra, 129 N.J. at 460. We see no such obstacle in this case, as defendant's contention can be resolved based on the record.

In his brief, defendant contends that PCR counsel was ineffective because he did not offer any proof of investigation of the officers, but instead relied only on defendant's pro se claims. Further, PCR counsel did not elaborate on the issue during oral argument. Therefore, defendant asserts that PCR counsel failed to investigate the claims concerning police corruption, as required by State v. Webster, 187 N.J. 254 (2006); State v. Rue, 175 N.J. 1 (2002); and State v. Hicks, 411 N.J.Super. 370 (App. Div. 2010).

Contrary to defendant's contention, we conclude that PCR counsel's actions satisfied Webster, Rue, and Hicks. In Rue, our Supreme Court held that, even where investigation into defendant's claims show little support as to their merits, "counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them." Rue, supra, 175 N.J. at 19. PCR counsel has the option to stand on that brief at the PCR hearing, but is "not required to further engage in expository argument." Ibid. However, PCR counsel in no way allowed to "denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition[,]" as that "kind of conduct contravenes our PCR rule[, Rule 3:22-6]." Ibid.

Thereafter, in its interpretation of Rue, the Webster Court held, that the appointed counsel's supplemental brief "must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them." Webster, supra, 187 N.J. at 257. This is all that is required by PCR counsel "to preserve defendant's contentions for federal exhaustion purposes[.]" Ibid. (citing 28 U.S.C.A. § 2254(b)(1)).

Relying upon both Rue and Webster, we then held in Hicks that PCR counsel had to do more than present the arguments raised by defendant in his pro se submissions; he had to review defendant's case to determine whether there were arguments that could be raised to support defendant's PCR petition. Hicks, supra, 411 N.J. Super. at 377. If PCR counsel "is satisfied that no further argument or elaboration is required, counsel must so certify to the reviewing court." Ibid.

Applying these principles, we see no deficiency in PCR counsel's performance. Following his assignment and appearance, PCR counsel's supplemental brief incorporated defendant's pro se contention that the State's failure to disclose that some of the arresting officers were allegedly under investigation for misconduct deprived him of material information in violation of Brady. In fact, as noted, the PCR court addressed those claims in its decision. See Webster, supra, 187 N.J. at 258 (where Public Defender did not incorporate defendant's pro se arguments in supplemental brief, and PCR judge did not comment on them, remand was necessary to make sure that arguments were considered). In addition, as noted, PCR counsel raised new claims of IAC. Consequently, there was no need for him to certify that additional argument was unnecessary.

Although we need not address the second prong under Strickland-Fritz, that defendant was prejudiced by PCR counsel's conduct, we will briefly do so for the sake of completeness. As the court below determined, neither the arresting nor reporting officers were listed on the jailhouse circulation. We see no reason to reject this finding. Further, there is no indication in the record that these officers were under investigation for misconduct related to drug arrests. Accordingly, there was no basis for suspecting that the charges set forth in Accusation No. 10-06-1932 were the result of police misconduct, which, in turn, would have given defendant reason not to plead guilty. As there is no prima facie showing of a PCR claim, no evidentiary hearing is warranted on the issue of alleged police misconduct.

We next address defendant's argument that trial counsel's ineffectiveness caused him to enter a guilty plea to Accusation No. 10-06-1932 without factual support and requires a remand so that defendant may withdraw his plea. Specifically, he contends that had trial counsel conducted an investigation, she would have discovered that the Odessa Paulk housing complex referenced in the accusation was not within 500 feet of where defendant distributed CDS. Citing State v. Fuchs, 60 N.J. 564 (1972), defendant contends that the State was required to proceed with the allegations set forth in the accusation. Further, defendant relies upon State v. Pineiro, 385 N.J.Super. 129, 137 (App. Div. 2006), where we held that a guilty plea was not valid because a factual basis was not given for every element of the crime. Based on these principles, defendant argues that since the plea was based on an accusation specifying the incorrect public housing complex, his conviction should be reversed.

We agree that trial counsel erred in not doing what a reasonable attorney should have done in making sure that the housing complex mentioned in the accusation was within 500 feet of defendant's CDS transaction. Nevertheless, the misidentification of the public housing complex is not fatal to defendant's guilty plea. There is no factual dispute that defendant's CDS transaction occurred within 500 feet of a public housing complex. A map certified by the investigating officer showed that defendant's arrest occurred within 500 feet of two public housing complexes. Because N.J.S.A. 2C:35-7.1 does not require the specific name of the housing complex to be identified, defendant's guilty plea should not be vacated.

Further, the factual basis for defendant's plea, distributing CDS within 500 feet of a public housing complex, did not stray from the accusation. Thus, defendant misplaces reliance on Fuchs, where the Court held that the State "went far from the indictment and evidence in the case" by charging false swearing where the indictment did not state and the State did not prove certain facts. Fuchs, supra, 60 N.J. at 569. And, the court's acceptance of defendant's plea did not run afoul of Pineiro, where this court recognized that a guilty plea should only be accepted "after personally addressing the defendant and determining `by inquiry of the defendant . . . that there is a factual basis for the plea.'" Pineiro, supra, 385 N.J. Super. at 137 (quoting Rule 3:9-2; State v. Smullen, 118 N.J. 408, 415 (1990)). Thus, there is no reasonable probability that defendant would not have pled guilty and gone to trial absent the misidentification of the public housing complex. Accordingly, we conclude that trial counsel's conduct did not satisfy the second prong of Strickland-Fritz by prejudicing the defendant, and an evidentiary hearing is not warranted.

Affirmed.