SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5274-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. PEREZ,

Defendant-Appellant.

_____________________________________________

Submitted July 13, 2017 – Decided

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey, 

Law Division, Atlantic County, Indictment No. 

12-12-2900.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Monique Moyse, Designated 

Counsel, on the brief). 

Damon G. Tyner, Atlantic County Prosecutor, 

attorney for respondent (Nicole L. Campellone, 

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NOT FOR PUBLICATION WITHOUT THE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 

parties in the case and its use in other cases is limited. R.1:36-3.

July 24, 2017
2 A-5274-15T4

Defendant Luis A. Perez appeals from an order entered by the 

Law Division on June 20, 2016, denying his petition for postconviction relief (PCR) without an evidentiary hearing. We affirm.

In December 2012, an Atlantic County grand jury returned 

Indictment No. 12-12-2900, charging defendant with the firstdegree murder of Joseph Hurt (Hurt), N.J.S.A. 2C:11-3(a)(1) and 

(2) (count one); second-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count 

three). The charges arose out of an incident that occurred on 

April 9, 2012, during which defendant shot and killed Hurt. 

The court listed the matter for trial on March 17, 2014. On 

March 14, 2014, the State provided the defense with discovery. 

Defendant's attorney reviewed the evidence with defendant on the 

morning of March 17, 2014. That day, defendant and the State 

reached an agreement and defendant pled guilty to count one in 

Indictment No. 12-12-2900, which was amended to charge firstdegree aggravated manslaughter, N.J.S.A. 2C:11-4. 

Defendant also pled guilty to charges in two other indictments

in which he was charged with two counts of fourth-degree possession 

of a controlled dangerous substance with intent to distribute. 

The State agreed to recommend an aggregate sentence of fifteen to 

twenty years of incarceration, with a period of parole 
3 A-5274-15T4

ineligibility as prescribed by the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2, and to dismiss the other charges in the three 

indictments.

On July 17, 2014, defendant moved to withdraw his plea, 

arguing that the evidence the State had provided on March 14, 

2014, showed that he had a colorable claim of self-defense. 

According to defendant, the evidence indicated that Hurt was a 

violent man who had been abusive to his girlfriend. 

Defendant asserted that the evidence showed that Hurt had 

been seeking to acquire a gun through illegal means to commit a 

crime, and Hurt had been in contact with drug dealers to provide 

his girlfriend with a regular supply of drugs. Defendant claimed 

the evidence indicated that Hurt had been looking for defendant 

because of a prior dispute, and he "tussled" with defendant before 

the shooting. 

On July 18, 2014, Judge Bernard E. DeLury denied the motion, 

finding among other things, that defendant did not raise a 

colorable claim of self-defense. The judge then sentenced 

defendant in accordance with the plea agreement to eighteen years 

of incarceration, with a NERA period of parole ineligibility. The 

judge dismissed the other charges in the three indictments. 

Defendant filed a direct appeal from the judgment of 

conviction dated July 25, 2014, and the appeal was heard on our 
4 A-5274-15T4

excessive sentence oral argument calendar. R. 2:9-11. We affirmed

the denial of defendant's motion to withdraw his plea and the 

sentence imposed. State v. Perez, No. A-5903-13 (App. Div. Mar. 

10, 2015). 

In April 2015, defendant filed a pro se petition for PCR. 

Defendant claimed he was denied the effective assistance of 

counsel, and he sought an evidentiary hearing on his petition. 

The trial court appointed counsel for defendant. On April 27, 

2016, Judge DeLury heard oral argument in the matter. 

On June 20, 2016, the judge filed a letter opinion in which 

he found that defendant had not presented a prima facie case of 

ineffective assistance of counsel and an evidentiary hearing was 

not required. The judge entered an order dated June 20, 2016, 

denying PCR. This appeal followed.

On appeal, defendant raises the following argument:

POINT ONE

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY 

HEARING ON HIS CLAIM THAT HIS ATTORNEY 

RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

We reject defendant's argument and affirm the order denying 

PCR substantially for the reasons stated by Judge DeLury in his

thorough and comprehensive letter opinion dated June 20, 2016. We 

add the following. 
5 A-5274-15T4

A hearing on a PCR petition is only required when a defendant 

establishes "a prima facie case in support of [PCR]," the court 

determines that there are disputed issues of material fact "that 

cannot be resolved by reference to the existing record," and the 

court finds that "an evidentiary hearing is necessary to resolve 

the claims for relief." R. 3:22-10(b); see also State v. Porter, 

216 N.J. 343, 355 (2013) (noting that under Rule 3:22-10(b), an 

evidentiary hearing on a PCR petition is only required when a 

defendant presents a prima facie case for relief). 

Here, defendant raised a claim of ineffective assistance of 

counsel. To prevail on such a claim, a defendant must meet the 

two-prong test established in Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and 

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 

(1987). The first prong of the test requires a defendant to show 

that his or her attorney's performance was deficient. Strickland, 

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

 To do so, a defendant must establish that counsel's alleged 

acts or omissions "were outside the wide range of professionally 

competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.

2d at 695. This requires a showing "that counsel made errors so 

serious that counsel was not functioning as the 'counsel' 
6 A-5274-15T4

guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 

S. Ct. at 2064, 80 L. Ed. 2d at 693.

To satisfy the second prong of Strickland, the defendant 

"must show that the deficient performance prejudiced the defense." 

Ibid. The defendant must establish "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. 

The Strickland test applies when a defendant seeks to set 

aside a guilty plea based on ineffective assistance of counsel.

State v. DiFrisco, 137 N.J. 434, 456-57 (1994) (citing Hill v. 

Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 

210 (1985)); see also State v. Nunez-Valdez, 200 N.J. 129, 139 

(2009) (citing DiFrisco, supra, 137 N.J. at 457). 

To obtain relief, the defendant must show that: (1) 

defendant's handling of the matter was not "within the range of 

competence demanded of attorneys in criminal cases." Id. at 457 

(quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 

1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant also must show 

"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." Ibid. (alteration in original) 
7 A-5274-15T4

(quoting Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed.

2d at 210). 

On appeal, defendant argues that his attorney was ineffective 

because he allegedly failed to communicate adequately with him 

about the case. He claims his attorney did not adequately review 

the discovery materials with him and failed to review the possible 

defenses. Defendant contends that this led him to enter a 

"uninformed plea."

Defendant notes that the State produced discovery three days 

before he entered his plea. He contends this timeframe shows his 

attorney could not have properly investigated his "defense 

options." He asserts that the discovery provided by the State 

shows he had a viable claim of self-defense.

However, as Judge DeLury noted in his opinion, when defendant 

entered his plea, he asked defendant whether he had reviewed the 

indictment and the evidence in the case with his attorney. 

Defendant replied, "Yes." In addition, defendant told the judge

that he was satisfied with the services provided by his attorney

and with the plea agreement that was placed on the record. 

Thus, the judge properly rejected defendant's claim that his 

attorney had not adequately reviewed the evidence with him. The 

claim was, as the judge found, merely a "bald assertion[]" 

unsupported by the record. See State v. Cummings, 321 N.J. Super.
8 A-5274-15T4

154, 170 (App. Div. 1999) (noting that defendant must do more than 

present "bald assertions" to support a claim of ineffective 

assistance of counsel), certif. denied, 162 N.J. 199 (1999). 

The record also supports the judge's conclusion that trial 

counsel made a reasonable, strategic decision to negotiate a 

favorable plea agreement with the State rather than risk going to 

trial and asserting self-defense. The judge explained that based 

on the evidence and the requirements of N.J.S.A. 2C:3-4(a), it was 

unlikely that a claim of self-defense would have been successful.

The judge observed that there was no evidence showing that 

Hurt had been attempting to use deadly force against defendant. 

The evidence showed that on April 9, 2012, defendant and Hurt had 

a verbal disagreement during the day, and Hurt later went to 

defendant's house to continue the argument. 

Although there was some evidence that defendant had a "tussle" 

with Hurt, there was no evidence that defendant or Hurt had any 

visible injuries. Furthermore, there was no evidence that Hurt was 

attempting to rob defendant, and Hurt was not found to be in 

possession of any of defendant's property. 

The judge also pointed out that there was "strong evidence" 

that defendant had time to retreat in complete safety, thereby 

precluding the assertion of a claim of self-defense. The judge 

wrote:
9 A-5274-15T4

The facts show that after the initial argument 

with [Hurt], [defendant] went inside his home. 

Witnesses told police that [Hurt] attempted 

to convince [defendant] to come back outside, 

but after failing in his attempts, [Hurt] went 

about his business that day. Then, [defendant] 

left his house and went back to the street 

armed with a weapon. Thus, the facts show that 

[defendant] had time to retreat, and did not 

have to go back outside armed with a weapon. 

Additionally, there is ample other evidence 

of [defendant's] guilt, such as several 

incriminating statements made by [defendant] 

to police after his arrest. 

In addition, the judge observed that when he denied

defendant's motion to withdraw his guilty plea, he found that 

defendant had not raised a colorable claim of self-defense. In 

ruling on that motion, the judge stated that any immediate need 

to use force had been dissipated by the passage of time and 

defendant's removal from the scene. The record therefore supports 

the judge's finding that counsel's decision to negotiate a plea 

agreement was within the range of reasonable professional 

assistance.

Judge DeLury further found that even if defendant had 

satisfied the deficiency prong of the Strickland/Fritz test, he 

still failed to show that he would not have pled guilty and would 

have instead insisted upon going to trial. See Nunez-Valdez, supra, 

200 N.J. at 139 (citing DiFrisco, supra, 137 N.J. at 457). As the 

judge noted, defendant had to show that it would have been 
10 A-5274-15T4

"rational under the circumstances" for defendant to reject the 

plea agreement. State v. O'Donnell, 435 N.J. Super. 351, 371 (App. 

Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 

S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)). 

The judge noted that defendant faced a charge of murder, 

which carried the possibility of a life sentence. N.J.S.A. 2C:11-

3(b)(4). The State's plea offer allowed defendant to plead guilty 

to an amended charge of aggravated manslaughter. In exchange, the 

State would recommend an aggregate sentence of fifteen to twenty 

years of incarceration, subject to NERA, with dismissal of the 

other charges in Indictment No. 12-12-2900, and the charges in two 

other indictments. 

The record supports the judge's finding that defendant failed 

to show that, were it not for counsel's alleged deficiencies, 

there was a reasonable probability he would not have pled guilty

and would have insisted upon going to trial. The judge noted that 

counsel had negotiated a favorable plea agreement. Under the 

circumstances, it would not have been rational for defendant to 

reject the plea agreement and insist upon a trial. 

In addition, the judge rejected defendant's claim that he did 

not enter a knowing and voluntary plea because of his attorney's 

deficient handling of the matter. The judge noted that in the plea 

colloquy, defendant had stated that he was pleading guilty because 
11 A-5274-15T4

he believed he was guilty. Defendant stated on the record that he

was entering his plea voluntarily. 

In the plea colloquy, defendant also stated no one had forced 

or threatened him to plead guilty. The judge reviewed the plea 

form with defendant, and the judge informed defendant that he was 

giving up important rights, including the right to claim that he 

shot Hurt in self-defense. Defendant told the court he wanted to 

plead guilty. The judge properly rejected defendant's claim for

PCR that his attorney had been deficient in allowing him to plead 

guilty. 

We therefore conclude that the record supports the PCR court's

determination that defendant failed to present a prima facie claim 

of ineffective assistance of counsel. The judge correctly found 

that defendant was not entitled to an evidentiary hearing on his 

PCR petition. 

Affirmed.