NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Jonathan Arce appeals from the denial of his petition for post-conviction relief (PCR) without a hearing. Defendant claims he was denied the effective assistance of counsel because his plea counsel, Paul Bergrin, was under investigation at the time he negotiated defendant's plea agreement and therefore had a conflict of interest. We are not persuaded by the argument and conclude that defendant has failed to establish a prima facie case of ineffective assistance of counsel.

In October 2006, a grand jury sitting in Essex County returned an indictment charging defendant with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count four); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count five); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count six). Defendant retained Paul Bergrin to represent him.

On March 19, 2007, defendant pled guilty pursuant to a negotiated plea agreement to counts one and two of the indictment. The State agreed to recommend a sentence of eighteen months on count one, to run concurrently with a three-year term on count two, with an eighteen-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). The State also agreed to dismiss the remaining counts of the indictment, a separate pending indictment, and two separate pending complaints.

At the plea hearing, defendant acknowledged reviewing the plea form with Bergrin, initialing the first two pages, and signing the third page. Defendant stated that he entered the plea voluntarily and acknowledged the terms of the supplemental plea form for the Graves Act offenses. Defendant stated that he had sufficient time to discuss the matter with Bergrin and that he was satisfied with Bergrin's services.

During his allocution, defendant admitted that on June 16, 2006, he possessed a Smith and Wesson.9mm handgun capable of firing a bullet, and pointed the gun at another individual. Defendant admitted that he did not have a permit to carry the handgun.

After accepting the plea, the judge granted Bergrin's motion to reduce defendant's bail with the condition that, if defendant did not appear for sentencing on May 18, 2007, the judge would impose a five-year custodial term with an eighteen-month period of parole ineligibility. Defendant acknowledged the condition, and it was incorporated into the plea agreement.

Defendant failed to appear for sentencing on May 18, 2007, but was arrested some time thereafter. On August 14, 2007, the judge sentenced defendant in accordance with the plea agreement and imposed a five-year custodial term on count two, concurrent to an eighteen-month custodial term on count one.

Defendant did not file a direct appeal. On August 10, 2012, defendant filed a pro se PCR petition. Counsel was appointed and a supplemental brief was filed, alleging that defendant was denied the effective assistance of counsel because Bergrin had a conflict of interest. Specifically, defendant alleged that Bergrin violated New Jersey Rule of Professional Conduct (RPC) 1.7 because he was under investigation by the Essex County Prosecutor's Office (ECPO) and federal prosecutors while he represented defendant during plea negotiations. Defendant submitted a certification stating that Bergrin had pending criminal charges at the time he represented defendant, but provided no certifications from Bergrin or the ECPO.

The PCR judge heard oral argument on defendant's petition on October 18, 2013. Defendant's counsel acknowledged that he did not know "when the investigation [into Bergrin] started, when it ended, or if perhaps there was no investigation whatsoever." He suggested there was reason to believe that Bergrin was being investigated by the ECPO during his representation of defendant because the charges contained in his federal indictment "arose out of an incident that happened in Essex County."

On October 18, 2013, the judge denied the petition without an evidentiary hearing, finding that defendant failed to demonstrate that Bergrin violated RPC 1.7 because he provided no evidence that there was an investigation by the ECPO, the same office that indicted defendant. The judge also found that, even if there was an investigation by the ECPO into Bergrin at the same time Bergrin represented defendant, defendant failed to establish by affidavit or certification that Bergrin was aware of the alleged investigation. The judge concluded that defendant was not entitled to an evidentiary hearing because he failed to establish a prima facie case of ineffective assistance of counsel.

On appeal, defendant raises one point:

Defendant's claim of ineffective assistance is governed by the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

To prevail on a claim of ineffective assistance of counsel, defendant must first show that counsel's performance was deficient. State v. Taccetta, 200 N.J. 183, 193 (2009). This requires a showing that counsel's handling of the matter "fell below an objective standard of reasonableness," and 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 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant must also demonstrate that counsel's deficient performance prejudiced the defense and there is 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.

To satisfy the Strickland/Fritz test in the context of a guilty plea, "a defendant must show that (i) counsel's assistance was not `within the range of competence demanded of attorneys in criminal cases'; and (ii) `that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed. 2d 873 (1996)).

A defendant is entitled to an evidentiary hearing only if he or she makes a prima facie showing of "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." State v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(b)).

RPC 1.7 sets forth the general rule governing conflicts of interest between a lawyer and client. Under RPC 1.7(a)(2), a lawyer is specifically prohibited "from representing a client if `there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer'" unless the client gives informed consent after full disclosure. State v. Cottle, 194 N.J. 449, 464 (2008) (alteration in original) (quoting RPC 1.7(a)(2)).

In Cottle, counsel for a defendant charged with murder was himself under indictment in the same county for criminal stalking. Id. at 452. The Court held that "an attorney who is contemporaneously under indictment in the same county as his client, and being prosecuted by the same prosecutor's office, is engaged in a per se conflict of interest, absent a valid waiver by the client, [and therefore] the representation is rendered ineffective." 194 N.J. at 473.

Bergrin was indicted in November 2009 by a federal grand jury sitting in Newark. United States v. Bergrin, 650 F.3d 257, 261 (3d Cir. 2011).1 While this investigation may have been ongoing in 2007 when defendant pled guilty, there is simply no proof of that in the record before us. Similarly, defendant has made no showing that the ECPO participated in the Bergrin investigation at the time of his plea.

Unlike Cottle, where the trial attorney "was under indictment and subject to prosecution during the entire period of his representation of defendant," 194 N.J. at 466, defendant provided no evidence showing that Bergrin was being investigated by the ECPO at the time he negotiated defendant's plea, or, if he was, that Bergrin was aware of it. See R. 3:22-10(c); see also State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (holding that a petitioner must do more than make "bald assertions" and must allege facts sufficient to demonstrate counsel's alleged substandard performance), certif. denied, 162 N.J. 199 (1999).

Thus, defendant has failed to establish that Bergrin's loyalty was "hobbled by conflicting interests" due to an ongoing criminal investigation, or that Bergrin was unable to provide legal services in an independent and vigorous manner. Cottle, supra, 194 N.J. at 467, 471.

Even if defendant established that Bergrin had a potential conflict, defendant failed to demonstrate the prejudice prong under Strickland/Fritz. Defendant acknowledged that if he proceeded to trial, he faced the possibility of a ten-year prison term. He does not deny that Bergrin negotiated a very favorable plea agreement, which provided for a three-year sentence2 that encompassed several other pending charges. Defendant has not established that, had he known Bergrin was under investigation, he would have rejected the plea agreement and proceeded to trial. Thus, defendant has not established that he was prejudiced by any alleged conflict of interest of Bergrin.

Affirmed.