SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 18T1 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. SHABBA Z. GREEN, a/k/a SHABBA K. GREEN, and ZIARE GREEN, Defendant

- Appellant.

___ ______________________

Submitted May 28, 2020

– Decided J une 15, 2020 Before Judges Whipple and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16

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- 0980. Joseph E. Krakora , Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent ( Frank J. Ducoat, Special Deputy Attorney General/Acting A ssist a n t 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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PER CURIAM Defendant Shabba Z. Green appeals from a January 14, 2019 order denying his petition for post

- conviction relief (PCR) without an evidentiary hearing. We affirm.
In 201 5, defendant was arrested for robbing a juvenile at knife point in East Orange. A grand jury indicted defendant for first

- degree robbery, N.J.S.A.
2C:15

- 1, possession of a weapon for an unlawful purpose , N.J.S.A. 2C:39

- 4(d), and possession of a weapon und er circumstances not manifestly appropriate,
N.J.S.A. 2C: 3 9

- 5(d).
In 201 6, d efendant pled guilty to first

- degree robbery , and pursuant to a plea agreement , was sentenced as a second

- degree offender. He received a six

year prison sentence subject to the No Early Release Act ( NERA ), N.J.S.A.
2C:43

- 7.2 , and five years of parole supervision. In his PCR petition, defendant argued his plea counsel did not advise him he was subject to five years of parole supervision , and instead he should have received three year s of parole supervision consistent with a second

- degree robbery conviction . The PCR judge rejected defendant's argument, and r eferencing defendant's plea form, noted the following: Defendant was asked

. . . " Do you understand that

because you pled to these charges the Court must3 A

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- 18T1 impose a five year term of parole supervision, and that term will begin as soon as you complete the sentence of incarceration? " Below it says, " First degree term for parole supervision, five years. Second degree parole superv ision, three years. " This defendant circled yes. The judge concluded defendant did not demonstrate a prima facie case of ineffective assistance of counsel because his " counsel could not have effectively argued for three years, because by law statutorily

. . . he pled guilty to a first degree robbery he must have received and did receive the five years term of parole supervision. " Defendant raises the following point on this appeal:
THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIARY HEARING ON HIS PETITION FOR POST

- CONVICTION RELIEF BASED UPON HAVING MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL GAVE INCORRECT ADVICE THAT HE WOULD RECEIVE TH REE YEARS OF PAROLE SUPERVISION RATHER THAN FIVE YEARS WHEN PLEADING TO A FIRST

- DEGREE CRIME. To succeed on a claim of ineffective assistance of counsel, a defendant must meet the two

- part test Strickland v. Washington , 466 U.S. 668 , 687 (1984) establish ed , which our Supreme Court adopted in State v. Fritz , 105 N.J. 42, 58 (1987). Under Strickland , a defendant first must show his or her attorney made errors "so serious that counsel was not functioning as the 'counsel' guaranteed4 A

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the defendant by the Sixt h Amendment." Strickland , 466 U.S. at 687. Counsel's performance is deficient if it falls "below an objective standard of
reasonableness." Id. at 688. A defendant also must show counsel's "deficient performance prejudiced the defense." Id. at 687. He or she must establish "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceeding. Ibid. We review a PCR court's decision to proceed without an evidentiary hearing for abuse of discretion. State v. Brewster , 429 N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall , 148 N.J. 89, 157

- 58 (1997)). A defendant is entitled to an evidentiary hearing if he or she presents a prima facie

case supporting PCR, the court determines there are material issues of fact that cannot be resolved based on the existing record, and the court finds that an evidentiar y hearing is required to resolve the claims presented. R. 3:22

- 10(b); see also State v. Porter , 216 N.J. 343, 354 (2013) (citing R. 3:22

- 10(b)). Having considered the PCR judge's findings and having reviewed the transcript of defendant's testimony at his plea hearing , we are convinced5 A

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defendant has not established a prima facie case of ineffective assistance of counsel. Before we address the plea proceedings, we note

— as the PCR judge
did

— that where a defendant pleads guilty to a first

- degree NERA offe nse, but receives a second

- degree sentence, the parole supervision period remains five
years. N.J.S.A. 2C:43

- 7.2(c). Therefore, defendant could not receive a shorter period of parole supervision. Moreover, the transcript of the plea proceedings resolves any doubt that defendant 's attorney misled him , as noted in the following colloquy:

THE COURT: Do you understand that because you are pleading guilty to a first degree robbery charge that there is a period of parole ineligibility of [eighty

- five percent] of the sentence that applies to that charge?
THE DEFENDANT: Yes.

. . . . THE COURT: Do you understand also that once you are released from custody that you will be subject to a period of parole supervision for five years following your release?
THE DE FENDANT: Yes. Defendant also testified he was satisfied with his counsel's advice and did not need more time to speak with him.6 A

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Defendant was not entitled to an evidentiary hearing because he did not demonstrate a prima facie case of ineffective assist ance of counsel. The record before us does not demonstrate that plea counsel committed any errors , let alone ones which prejudiced the outcome in this case. Affirmed.