NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Quadree Brown appeals from a June 28, 2013 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On January 4, 2007, Newark Police responded to the scene of a reported shooting in Newark and found a victim, Freddy Proctor, suffering from multiple gunshot wounds. He died later that day at a local hospital. An autopsy determined that Proctor died from gunshot wounds to the head and torso. Witnesses reported that Proctor was walking with his friends, when a gold van pulled up and a black male with a handgun exited the passenger side and opened fire.

A search of the crime scene produced two cell phones. One belonged to Proctor; witnesses said the shooter dropped the other phone. Further investigation determined the second phone had been stolen from an individual at gunpoint on October 23, 2006, in East Orange. Information obtained through a communications data warrant indicated use of the stolen cell phone thereafter. Interviews with persons who received calls from the stolen cell phone revealed that defendant had been using the phone. The owner of the stolen cell phone identified defendant from a photo array as the person who robbed him at gunpoint. One of Proctor's friends, who was with Proctor when he was shot, also identified defendant as the shooter from a photo array.

On July 29, 2008, defendant entered into a negotiated plea agreement and pled guilty to four counts of a ten-count indictment, namely: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count five); first-degree aggravated manslaughter as amended from murder N.J.S.A. 2C:11-4 (count eight); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count nine).1 In exchange, the State agreed to recommend an aggregate term of twenty-years imprisonment, subject to an eighty-five-percent period of parole ineligibility, pursuant to the No Early Release Act (NERA).

On January 15, 2009, the court imposed a prison term of twenty years subject to NERA, consistent with the plea agreement. The sentencing judge recognized that defendant had just turned eighteen, and committed the underlying crimes when he was sixteen. Defendant's juvenile record consisted of fourteen petitions, including this homicide case which was waived to adult court. Of those fourteen petitions filed against him, defendant was adjudicated delinquent four times. Accordingly, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk defendant will commit another offense) and (9) (need for deterrence), and no mitigating factors. The judge advised defendant of his right to appeal. Defendant did not file a direct appeal.

In his pro se petition for PCR, defendant alleged ineffective assistance because, among other things, his trial counsel: failed to argue mitigating factors at sentencing; failed to visit defendant in county jail; coerced defendant's plea; failed to file an appeal despite defendant's request; and failed to provide defendant with all of his discovery, including the grand jury transcript.

After oral argument, the PCR judge issued a written decision setting forth his reasons for denying PCR. The judge first concluded that the issues raised in defendant's petition were procedurally barred by Rule 3:22-4 because they could have been raised on direct appeal. He specifically noted that defendant's allegations that the trial court imposed an excessive sentence, that the prosecutor failed to present clearly exculpatory evidence to the grand jury, and that his guilty plea was not entered knowingly or voluntarily, all should have been raised on direct appeal.

Nevertheless, the judge addressed the merits and concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel, and thus found no basis for an evidentiary hearing. Applying the two-prong test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the judge first determined that none of trial counsel's conduct fell below an objective standard of reasonableness. He specifically noted that there is no set number of times counsel must visit a defendant in jail, and that trial counsel did actually argue for mitigating factors at sentencing.

Regardless, the judge concluded that defendant failed to show a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. First, the judge found that apparent discrepancies in the grand jury testimony of the eyewitness to the fatal shooting were "relatively nominal," and that defendant failed to show a reasonable probability that the grand jury transcript would have convinced him not to plead guilty. In addition to noting that defendant received a "very favorable" plea agreement, the judge pointed out that the cell phone — physical evidence — directly linked and implicated defendant in the shooting. As such, defendant failed to show a reasonable probability that he would not have accepted the plea agreement. Therefore, the judge concluded that defendant failed to establish a prima facie case of ineffective assistance, and denied the PCR petition without an evidentiary hearing. This appeal ensued, in which defendant raises the following points:

II.

A defendant must establish two elements to prove ineffective assistance of counsel. First, he or she must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Under the New Jersey Constitution, a criminal defendant is entitled to "reasonably competent counsel." State v. Fritz, 105 N.J. 42, 58 (1987). Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. In order to rebut this presumption, a defendant must prove that counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. New Jersey has adopted the Strickland test. Fritz, supra, 105 N.J. at 58.

The defendant bears the burden of proving, by a preponderance of the evidence, that counsel's strategy decisions were not within the broad spectrum of competent legal representation. Id. at 52. Furthermore, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Additionally, PCR petitions are subject to certain procedural bars. Rule 3:22-4 bars a claim if "[the defendant] could have, but did not, raise the claim in a prior proceeding." State v. Preciose, 129 N.J. 451, 459 (1992). The rule provides for certain exceptions under which a claim may be raised in a PCR proceeding even if it could have been raised in a prior proceeding. These exceptions shall apply only in "exceptional circumstances," and the defendant bears the burden of proving that an application of the Rule 3:22-4 bar would result in fundamental injustice. State v. Mitchell, 126 N.J. 565, 587 (1992).

A petitioner for PCR is generally entitled to an evidentiary hearing upon showing a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim, the petitioner "must allege specific facts and evidence supporting his allegations." Id. at 355. The trial court has discretion to dispense with an evidentiary hearing "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed. 2d 88 (1997).

Applying these well-settled standards of review, we affirm the PCR court's denial of defendant's petition. The PCR judge correctly found that defendant's claim of an excessive sentence and the prosecutor's failure to provide exculpatory evidence to the grand jury could have been raised on direct appeal. Defendant's arguments regarding these claims are barred on this appeal because they could have been raised on a direct appeal. Rule 3:22-4.

While we disagree with the PCR judge that defendant's argument that his plea was not voluntary could have been raised on direct appeal,2 we nevertheless affirm the rejection of this claim based upon our review of the record from the plea and the absence of any credible evidence to support defendant's claim of coercion.3 Defendant completed a plea form, and on the record expressly acknowledged that he understood all the terms and conditions of the plea, and that he was not "threaten[ed]" by "[a]nybody" to plead guilty. The plea judge asked defendant whether he understood every term of each crime, whether he went over the plea form with his attorney when he signed it, whether he had enough time to discuss the plea with his attorney, and whether he had any additional questions for his attorney or for the court. Representations a defendant makes under oath at the plea hearing constitute a "formidable barrier" for the defendant to overcome. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal[.]").

Accordingly, the record fully supports the PCR judge's finding that defendant was not denied the effective assistance of counsel when he entered his plea. Counsel's handling of the plea was not "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Moreover, as the PCR judge pointed out, defendant suffered no prejudice from the plea agreement because he benefited from the reduction of his sentencing exposure as a result of the amendment of the murder charge to aggravated manslaughter, receiving a "very favorable" plea agreement.

Defendant also argues that counsel was ineffective for failing to provide him with the grand jury transcript, which would have revealed inconsistencies in the description of the shooter given by an eyewitness to the shooting. In particular, defendant contends that had he seen the grand jury transcript, he would have rejected the plea offer and proceeded to trial. Defendant submits that the eyewitness to the shooting gave a statement to a Newark Police Detective hours after the shooting, describing the shooter as a "[b]lack light skin male ... in his 20's"; however, during his testimony before the grand jury, over one year later, he described the shooter as "dark skinned" and "[a]bout 16 or 17, somewhere around there."

It is axiomatic that in order for a defendant to obtain relief based on ineffective assistance grounds, he or she is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he or she would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed. 2d 873 (1996); Fritz, supra, 105 N.J. at 58.

Even if we accept defendant's contention that his trial counsel deficiently failed to obtain, review, and provide him with a copy of the grand jury testimony of the eyewitness, the record here still falls short of satisfying the second prong under Strickland. As the PCR judge noted, "[t]hese are very vague, relative descriptions of skin color and age that could easily be used for the same person [and accordingly,] the defendant fails to show a reasonable probability that the grand jury testimony would have convinced him not to plead guilty."

Moreover, the record contains compelling evidence against defendant aside from the testimony of the eyewitness, including the identification of defendant by the victim of the October 2006 armed robbery of a cell phone, and the cell phone linking defendant to the shooting. Defendant presented no colorable claim of innocence or any other credible evidence that he would have rejected the plea agreement and insisted on going to trial but for the alleged deficiencies in his trial counsel's performance. See DiFrisco, supra, 137 N.J. at 457. The record simply lacks any credible evidence that defendant sustained any actual prejudice from any alleged ineffective assistance of counsel. See State v. Banks, 349 N.J.Super. 234, 245 (App. Div. 2001), aff'd, 171 N.J. 466 (2002). "Bald assertions," of course, are insufficient to entitle a defendant to an evidentiary hearing on a PCR petition. Cummings, supra, 321 N.J. Super. at 170.

Defendant's sentencing argument similarly lacks merit. A review of the sentencing record reveals that trial counsel vigorously argued mitigating factors. For example, trial counsel argued that defendant: "does not have a record of any violent sort of crime"; "was [sixteen] years old when all of this occurred"; "certainly has done a lot of growing up"; and "did acknowledge his responsibility in this matter and has been extremely remorseful for what occurred here." Hence even if defendant had filed a direct appeal, raising the issues he now asserts, the appeal would have been without merit.

Affirmed.