SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0929-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONG B. LIN, a/k/a DONG

BIAO LIN, 

Defendant-Appellant.

_______________________

Submitted December 8, 2021 – Decided December 28, 2021

Before Judges Hoffman and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 10-10-

1964.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the brief).

Lori Linskey, Acting Monmouth County Prosecutor, 

attorney for respondent (Mary R. Juliano, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Defendant Dong B. Lin appeals from the March 9, 2020 Law Division 

order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm.

I.

We glean the following facts from the record. On June 16, 2010, 

defendant1and his co-defendant, Zeng Liang Chen, broke into the home of a 

former employer in Freehold. The men were armed with a knife and brass 

knuckles and intended to commit theft. Upon entering the home, they tied up 

the male victim with telephone wire. Defendant proceeded to search the home 

for valuables and subsequently found a female victim upstairs in bed. 

Defendant then stabbed the female victim repeatedly through her bedding; upon 

hearing a male victim yelling downstairs, defendant returned and stabbed him 

until his knife broke. Defendant then found another knife in the home and used 

it to continue the attack. Both victims died from multiple stab wounds. 

Approximately an hour later, the police arrested defendant and his co-defendant 

walking nearby. 

1

 Defendant was born in China and does not speak English. Defendant used 

interpreters throughout his criminal proceedings.
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On October 18, 2010, a Monmouth County grand jury returned an 

indictment, charging defendant and his co-defendant with the following 

offenses: conspiracy to commit armed burglary, second degree, N.J.S.A. 20:5-

2 and 20:18-2 (count one); two counts of murder, first degree, N.J.S.A. 20:11-

3a(2) (counts two and three); two counts of felony murder, first degree, N.J.S.A. 

2C:11-3a(3) (counts four and five); armed burglary, second degree, N.J.S.A. 

20:18-2 (count six); armed robbery, first degree, N.J.S.A. 20:15-1 (count seven); 

and possession of a knife for an unlawful purpose, third degree, N.J.S.A. 2C:39-

4d (count eight). In addition, the grand jury returned a notice of aggravating 

factors against defendant, thus exposing him to life sentences without parole for 

both murders. 

In January 2013, defendant moved to suppress his statement made to the 

police. The trial court denied defendant's motion in May 2013, following a 

Miranda2 hearing. In January 2014, defendant pled guilty to counts two, three, 

four and five in exchange for the State's agreement to dismiss the remaining 

counts and to recommend a life sentence for counts two and three subject to the 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
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No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.3 At the outset of defendant's 

plea hearing, the prosecutor placed the material terms of the plea agreement on 

the record, including defendant's sentence exposure under the agreement:

[T]he State will move to recommend, at the time of 

sentence, that Counts 1, 6, 7, and 8 are dismissed. And 

the State will recommend life imprisonment with the 

possibility of parole for Count 2, with a concurrent 30 

years with a 30-year period of parole ineligibility for 

Count 3. 

. . . .

This plea [agreement] is conditioned upon truthful

testimony against the co-defendant, meaning that Dong 

Biao Lin realizes that if Zeng Chen decides to go to 

trial, that Dong will testify against him and tell the truth

as to what happened.

. . . .

As part of this plea [agreement], the defendant realizes 

that Counts 2 and 3 will be subject to the No Early 

Release Act. So on the count where there is life with 

parole, Dong Lin is looking at a minimum of 67 years 

and six months before he would even be considered for 

the possibility of parole. And then he also has the 

second count where there is 30 years with a 30-year 

period of parole ineligibility. 

3 Under the terms of the plea agreement, count four merged into count two and 

count five merged into count three. 
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After the prosecutor finished placing the plea agreement on the record,

defendant's counsel addressed the court:

Your Honor, I agree with Mr. LeMieux as to the 

substance of the plea agreement. I've gone over the 

questions and the answers on the plea forms with Mr. 

Lin, and he has indicated that he understands the 

questions and is entering this plea knowingly and 

voluntarily. 

THE COURT: Miss Noto, you used the services of the 

interpreter also? 

MS. NOTO: Yes, your Honor, I did.

Defendant's counsel further noted "that the defense reserves the right to argue 

for less than the sentence that the prosecutor is recommending."

By way of factual basis, defendant recounted that he and his codefendant 

broke into the victims' home to commit theft, and that they tied up the male 

victim with telephone wire. Defendant testified he searched the home for

valuables, found the female victims upstairs in bed and stabbed her through the 

bedding; when the male victim began struggling and yelling after hearing the 

cries of the female victim, defendant stabbed him as well. Defendant stated he 

stabbed the male victim until his knife broke. He then found another knife in 

the house and continued the assault.
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Both defendant and his counsel agreed that they reviewed the plea form 

together, with the aid of an interpreter. Moreover, defendant testified that he 

understood the questions on the form and answered them truthfully. Defendant 

also confirmed that he was pleading guilty "freely and voluntarily." 

Relevant to defendant's PCR claim, the plea judge and defendant engaged 

in the following colloquy:

Q: Question 13 essentially lists the prosecutor's 

recommended sentence, which Mr. LeMieux went over 

in detail, but I will go over that with you again, is that 

the State is recommending life imprisonment with the 

possibility of parole on Count 2, murder in the first 

degree, which would run concurrently with a 30-year 

sentence with a 30-year period of parole ineligibility 

under Count 3, murder in the first degree. Do you 

understand that? 

A: Yes. 

. . . .

Q: Question 7 talks about the mandatory periods of 

parole ineligibility. And it talks about the facts that the 

minimum period of parole ineligibility would be a 30-

year period and the maximum on a life sentence is 67 

and a half years,4 which would be less any time that 

4

 The correct period of parole ineligibility for defendant should have been stated 

as 63.75 years, not 67.5 years. See State v. Manning, 240 N.J. 308, 324 (2020). 

The incorrect figure was not cited by the judge at sentencing nor was it included 

in defendant's judgment of conviction; thus, we conclude this misstatement was 

harmless error.
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you've already served at the time of your sentencing. 

Do you understand that? 

A: Yes. 

Q: Now, in Question 21 — we turn to the second-to-last 

page — it indicates — the State indicates that there 

have been no other promises between the defendant and 

the State, and that your attorney. Miss Noto, has 

reserved the right to argue for less than a life sentence 

at the time of sentencing. Do you understand that? 

A: Yes

A: Now, that decision would be made by me after I 

listened to the arguments of both attorneys, I listen to 

what you have to say, I listen to what the victims have 

to say or the victims' family, and also read what's called 

your presentence investigation report. Do you 

understand that? 

A: Yes. 

Defendant subsequently testified at the trial of his co-defendant, who was 

convicted as charged. At defendant's sentencing hearing in May 2015, defense 

counsel urged the court to find mitigating factors seven, nine, and twelve, 

N.J.S.A. 2C:44-1(b)(7), (9) and (12), emphasizing that defendant had no prior 

criminal record, that he took rehabilitative measures in jail, and was remorseful 

and cooperated with the State by pleading guilty and testifying against his codefendant.
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Despite the defense's arguments in mitigation, the court found aggravating 

factors preponderated and imposed the sentence the parties negotiated: life 

imprisonment with an eighty-five percent parole bar on count two and a 

concurrent thirty-year term with no parole on count three. The court provided a

detailed description of the murders, noting their brutality, the victims' injuries, 

and the evidence of pain and anguish the victims experienced during their 

slayings.

Defendant appealed, arguing that his statement made to police should have 

been suppressed and that his sentence was excessive. We rejected both 

arguments and affirmed. State v. Lin, No. A-4559-14 (App. Div. Apr. 12, 2018) 

(slip op. at 2). On October 24, 2018, our Supreme Court denied certification. 

State v. Lin, 235 N.J. 456 (2018).

On December 4, 2018, defendant filed the PCR petition under review, 

alleging:

a) Ineffective assistance of trial counsel for 

misleading defendant to believe he will ONLY 

receive 30 years with 30[-]yr parole disqualify. 

b) Defendant did NOT knowingly, voluntarily and 

intelligently accept[] his plea to life 

imprisonment with 85% parole disqualifier. 

Defendant understood he would receive 30 yrs 

with [a] 30[-]year parole disqualifier for all 

counts to be served concurrently.
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Defendant's PCR counsel argued that defendant's plea counsel promised that he 

would only receive a thirty-year sentence, rather than life, and that this 

amounted to ineffective assistance of counsel. Thus, defendant maintained that 

he deserved an evidentiary hearing on this issue. Furthermore, defendant filed 

a pro se brief, seeking to vacate his guilty plea, claiming that his plea counsel 

misled him "into believing he would receive the lower 30-year sentence, rather 

than the 75 years with an[] 85% disqualifier." 

In March 2020, oral argument was held on defendant's PCR petition. On 

March 9, 2020, the trial judge denied defendant's motion for PCR in a written 

opinion. The judge found that defendant failed to present a prima facie case of 

ineffective assistance of counsel, reasoning that "defendant engaged in colloquy 

with the [c]ourt indicating that plea counsel explained the consequences of the 

plea, that he fully understood the plea, and that he was satisfied with plea 

counsel's representations." 

This appeal followed, with defendant presenting these arguments: 

POINT I

THE PCR COURT ERRED IN DENYING MR. LIN 

AN EVIDENTIARY HEARING AS TESTIMONY IS 

NEEDED FROM TRIAL COUNSEL EXPLAINING 

WHY SHE FAILED TO EXPLAIN THE TERMS OF 
10 A-0929-20

THE PLEA OFFER TO MR. LIN, THEREBY 

MAKING HIS PLEA UNKNOWINGLY GIVEN. 

POINT II

THE PCR COURT ERRED IN DENYING MR. LIN 

AN EVIDENTIARY HEARING AS TESTIMONY IS 

NEEDED FROM TRIAL COUNSEL EXPLAINING 

WHY SHE FAILED TO ACCURATELY RELAY THE 

TERMS OF THE PLEA OFFER TO MR. LIN. 

II.

PCR is New Jersey's analogue to the federal writ of habeas corpus. State 

v. Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992). 

It is the vehicle through which a defendant may, after conviction and sentencing, 

challenge a judgment of conviction by raising issues that could not have been 

raised on direct appeal and, therefore, ensures that a defendant was not unjustly 

convicted. State v. McQuaid, 147 N.J. 464, 482 (1997). Where no evidentiary 

hearing was conducted in the denial of a PCR petition, we review "the factual 

inferences drawn from the documentary record de novo." State v. Blake, 444

N.J. Super. 285, 294 (App. Div. 2016). Furthermore, we review de novo the 

trial court's conclusions of law. Ibid.

As a threshold matter, a PCR claim "must be established by a

preponderance of the credible evidence." State v. McQuaid, 147 N.J. 464, 483

(1997) (citing Preciose, 129 N.J. at 459). PCR "is cognizable if based upon . . . 
11 A-0929-20

[s]ubstantial denial in the conviction proceedings of defendant's rights under the 

Constitution of the United States or the Constitution or laws of the State of New

Jersey." R. 3:22-2(a). 

A defendant is generally entitled to a PCR evidentiary hearing upon 

showing a prima facie claim of ineffective assistance of counsel. 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. In 

other words, "to establish a prima facie claim, 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. 1999). 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 (citation omitted) (1997).

In determining whether a defendant has established ineffective assistance 

of counsel, we evaluate the claim under the two-prong Strickland test, where "a 

reviewing court must determine: (1) whether counsel's performance 'fell below 

an objective standard of reasonableness,' . . . and if so, (2) whether there exists 
12 A-0929-20

a 'reasonable probability that, but for counsel's unprofessional error, the result 

of the proceeding would have been different.'" Strickland v. Washington, 466

U.S. 668, 688 (1984); State v. Castagna, 187 N.J. 293, 313-14

(2006) (quoting Strickland, 466 U.S. at 688, 694); see also State v. Fritz, 105

N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).

A defendant may satisfy the first prong of the Strickland test "by a 

showing that counsel's acts or omissions fell outside the wide range of 

professionally competent assistance considered in light of all the circumstances 

of the case." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting Castagna, 187

N.J. at 314). Additionally, when a claim of ineffective assistance of counsel 

follows a guilty plea, the defendant must prove counsel's deficient 

representation and "a reasonable probability that, but for counsel's errors, 

[defendant] would not have pleaded guilty and would have insisted on going to 

trial." State v. Brewster, 429 N.J. Super. 387, 392 (App. Div.

2013) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Notably, an 

"erroneous sentencing prediction" by defense counsel does not render counsel's 

performance as "constitutionally defective" under Strickland. State v. DiFrisco, 

137 N.J. 434, 457 (1994) (citations omitted).

 
13 A-0929-20

A.

Defendant first contends that counsel failed to inform him that his plea 

agreement exposed him to life imprisonment subject to NERA for the firstdegree murder charge (count two). Rather, defendant maintains that his prior 

counsel "misled" him in off-the-record conversations, and that counsel told him 

he would receive concurrent sentences of thirty years, with a thirty-year parole 

disqualifier. Defendant argues that this constitutes ineffective assistance of 

counsel. This argument lacks merit. 

As noted, whether defendant has established a case of ineffective 

assistance of counsel is evaluated under the two-prong Strickland test. Prong 

one requires that counsel's representation was objectively deficient. Here, the 

record before us does not support a finding that counsel's representation fell 

below an objective standard of reasonableness. 

Although defendant claims that counsel informed him "off the record" that 

he would only receive a thirty-year sentence, with a thirty-year parole 

disqualifier, the plea colloquy shows that defendant understood that the State 

would be recommending a life sentence with the possibility of parole. Even if 

counsel told defendant he would receive the lesser thirty-year sentence, such an 

"erroneous sentencing prediction" does not render counsel's representation as 
14 A-0929-20

ineffective. See DiFrisco, 137 N.J. at 457 ("[e]rroneous sentencing 

predictions . . . do not amount to constitutionally-deficient performance under 

Strickland."). Defendant can hardly argue that he was "misled" by counsel, as 

the plea colloquy plainly shows that the plea judge made sure that defendant 

understood the terms of his plea agreement. 

As to the second prong of the Strickland test, which requires defendant to 

show a reasonable probability that, but for counsel's error, defendant would have 

rejected the plea, the record likewise does not support such a finding. To start, 

defendant fails to address, let alone establish, this prong in his appellate brief. 

Because this element is indispensable to an ineffective assistance of counsel 

claim, defendant's failure to address it is fatal to his claim. See Hill, 474 U.S. 

at 60 ("Because petitioner . . . failed to allege the kind of "prejudice" necessary 

to satisfy the second half of the Strickland v. Washington test, the District Court 

did not err in declining to hold a hearing on petitioner's ineffective assistance of 

counsel claim.").

B.

Defendant similarly contends that his prior counsel's ineffective 

assistance rendered his plea as "unknowingly given." Namely, defendant argues 

that his plea was not given knowingly because he understood he would receive 
15 A-0929-20

a thirty-year sentence with a thirty-year parole disqualifier. Additionally, 

defendant argues that the PCR court failed to consider the language barrier 

between defendant and the trial judge, or whether there was confusion with the 

translation. These arguments also lack merit.

There are various procedural requirements that come with the taking of a 

guilty plea. State ex rel T.M., 166 N.J. 319, 325 (2001). Rule 3:9-2 provides 

that 

A defendant may plead only guilty or not guilty to an 

offense. The court, in its discretion, may refuse to 

accept a plea of guilty and shall not accept such plea 

without first addressing the defendant personally and 

determining by inquiry of the defendant and others, in 

the court's discretion, that there is a factual basis for the 

plea and that the plea is made voluntarily, not as the 

result of any threats or of any promises or inducements 

not disclosed on the record, and with an understanding 

of the nature of the charge and the consequences of the 

plea.

[Id. at 326]

Put another way, guilty pleas must (1) have a sufficient factual basis; (2) be 

offered voluntarily; and (3) be given with an understanding of the nature of the 

charge and its consequences. Id. at 325. Of relevance here, a court can only 

accept a guilty plea when it is convinced that the plea was entered "knowingly 
16 A-0929-20

and voluntarily and with an understanding of the consequences." State v. 

Warren, 115 N.J. 433, 447 (1989). 

The record supports a finding that defendant provided a knowing and 

voluntary guilty plea. The plea form and the transcript, including statements 

made by the prosecutor, defense counsel, the judge, and the defendant himself, 

all indicate that defendant knew that a life sentence was a possible consequence 

of the plea. In fact, the record shows that defendant understood that the State 

would be recommending such a sentence. Specifically, the prosecutor clearly 

stated, in placing the plea agreement on the record, that "on the count where 

there is life with parole, Dong Lin is looking at a minimum of 67 years and six 

months before he would even be considered for the possibility of parole." 

Defendant's claim that he did not understand he could receive a life sentence is 

directly contradicted by the prosecutor's clear statement. 

To the extent defendant argues that a language barrier existed between 

him and the judge, or that the interpreter did not sufficiently express the terms 

of the plea, defendant points to no evidence in the record supporting such a 

claim. 

Accordingly, defendant has failed to demonstrate that his plea was given 

unknowingly and involuntarily. In addition, defendant has failed to set forth a 
17 A-0929-20

prima facie case of ineffective assistance of counsel. We conclude the PCR 

court properly denied defendant's petition for PCR without an evidentiary 

hearing. The court reasonably exercised its discretion to deny defendant an 

evidentiary hearing under Rule 3:22-10 because defendant's ineffective 

assistance claim was resolvable by reference to the plea record.

Affirmed.