SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0599- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ANDRE DAWSON, a/k/a ANDRE MARIO DAWSON, ANDREA DAWSON, and ANDRE M. DAWSON, III, Defendant-Appellant.

Submitted February 5, 2024

– Decided February 29, 2024 Before Judges Sabatino and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 19

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- 0294. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Anderson David Harkov, Designated Counsel, on the brief). William A. Daniel, Union County Prosecutor, attorne y for respondent (Michele C. Buckley, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0599

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Defendant Andre Dawson appeals from the trial cour t's August 31, 2022 order and accompanying written opinion denying his petition for postconviction relief ("PCR") concerning his 2019 convi ction of third-degree aggravated assault on a bus driver, N.J.S.A. 2C:12- 1(b)(5)(g ). We affirm , subs tantially for the reasons stated in the PCR judge's written opinion. We briefly state the pertinent background. Defend ant's conviction arose out of an investigation showing that on January 28, 2019, he got into an argument with the driver of a New Jersey Transit bu s, and physically assaulted her. The State charged defendant in Accusation No. 19- 04 -00294 with committing a violation of N.J.S.A. 2C:12-1(b)(5)(g ). Thereafter, plea negotiations ensued between the State and Dawson's defense counsel. Those negotiations resulted in a plea agreement, which wa s memorialized on a plea form signed by defendant, his attorney, and the ass istant prosecutor. The plea form specified that defendant would plead guilty to the charged offense, and that, in exchange, the State would dis miss charges of second-degree robbery and third-degree aggravated assault, which had been charged in a complaint-warrant separate from the Accusation. Th e State further agreed to recommend a prison sentence not to exceed "[eight y ears] flat."3 A- 0599

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Defendant appeared at a plea hearing before the tri al court on April 11, 2019 , and he stated under oath his voluntary assent to the terms of the plea agreement. He also provided the necessary factual basis for the charged offense.
On June 7, 2019, defendant appeared for sentencing bef ore a different judge. During that proceeding, the judge noted on the record that defendant had other unrelated charges pending against him, and th at she had received an inquiry from defense counsel about "resolving that matter along with this one." The prosecutor responded that the State was not wil ling to make a so-called "global plea offer," or a "package plea" offer, but instead would make a separate offer on that other matter with a recommendation for "additional jail time." Defense counsel did not comment on that colloquy, n or did defendant. The court sentenced defendant to an eight-year term as a persistent offender. The sentence was consistent with the ple a agreement. Defendant appealed his sentence, contending it was excessive. After oral argument, this court affirmed the sentence by order dated June 30, 2020. See State v. Andre Dawson, No. A- 300 -19 (App. Div. June 30, 2020). Thereafter, defendant filed an initial PCR petition in January 202 1, with supplemental briefing in September 2021 after being assigned counsel. The supplemental briefing sought an evidentiary hearing

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Defendant argues his plea counsel was constitutiona lly ineffective by allowing him to assent to the plea agreement withou t negotiating a global resolution that included the other pending charges. Apparently, those other charges have resulted in defendant being sentenced to additional prison time consecutive to the eight years imposed in this case

. After hearing oral argument on June 30, 2022, Judge Candido Rodriguez denied defendant's petition and found no need for a n evidentiary hearing. Defendant now appeals from that PCR denial. He advances the following argument in his brief:

POINT I THE FAILURE OF TRIAL COUNSEL TO NEGOTIATE A PLEA AGREEMENT THAT ENCOMPASSED ALL OF DEFENDANT'S PENDING CHARGES, SUBJECTED DEFENDANT TO CONSECUTIVE SENTENCES AND A PIECEMEAL SENTENCING PROCESS THAT WAS SEVERELY PREJUDICIAL AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL Elaborating on this point, defendant asserts that " [a] lthough the [S]tate was not required to make a global plea offer, it is almost rou tine for prosecutors to do so in such situations in order to 'wrap up' all pending charges at one time." He thus contends that "[t]he failure of trial couns el to attempt to negotiate a5 A- 0599

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global plea offer subjected defendant to consecutiv e sentences and a piecemeal sentencing process that greatly increased his expos ure to an extended period of incarceration in state prison and [he] was therefor e severely prejudic[ ed ] ." The State counters that it had no obligation to ent er into global plea negotiations. It maintains defendant knowingly ent ered into the present plea agreement for this case, well aware that it was not a global arrangement. In evaluating these arguments, we are guided by wel l established principles. Under the Sixth Amendment of the Unite d States Constitution, a person accused of crimes is guaranteed the effectiv e assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a deprivation of that right, a convicted defendan t must satisfy the twopart test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient pe rformance actually prejudiced the accused's defense. Id. at 687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two -part test in New Jersey). When reviewing such claims, courts apply a strong presum ption that defense counsel "rendered adequate assistance and made all signific ant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.6 A- 0599

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The United States Supreme Court has extended these principles to the representation provided by a criminal defense attor ney to an accused in connection with a plea negotiation. Lafler v. Coop er, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 566 U.S. 134 (2012). To prevail, a defendant must show with "reasonable probability" that the result would have been different had defendant received proper advice from plea counsel. Lafler, 566 U.S. at 163 ; see also Hill v. Lockhart, 474 U.S. 52, 59 (1985) ( articula tin g and applying the "reasonable probability" test to such settings). We concur with the PCR judge that defendant has not presented such a reasonable probability of a different outcome here. As defendant concedes, the State had no legal obligation to make a global plea offer. The sentencing judge's comments explicitly reflect that defense counsel as ked about the possibility in chambers, and the prosecutor made very clear on the record that no such global offer would be made. Defendant was present in cour t to hear that colloquy.
It is pure speculation that the prosecut ion would have changed its position if defendant held out and refused to accept a plea offer confined to this accusation

. In addition, we note defendant was a persistent of fender with a prior criminal record

. There is no reason to believe, even in hindsight, that the State was likely to have adopted a more lenient approach and exte nded a global offer.7 A- 0599

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Defendant failed to present a prima facie claim of his plea counsel's ineffectiveness. Accordingly, the court had no obl igation to conduct an evidentiary hearing. State v. Preciose, 129 N.J. 4 51, 462 (1992) (concluding, if a prima facie claim is made, an evidentiary hearing on ineffectiveness should be held). To the extent we have not already mentioned them, a ny remaining arguments presented by defendant lack sufficient me rit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed.