SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0410-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEY RICHBURG, a/k/a

93001124001 JOEY,

RICHBURG JOEY and

THE HAT,

Defendant-Appellant.

_______________________

Submitted January 25, 2021 – Decided March 2, 2021

Before Judges Currier and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 13-08-1576.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Stephanie Davis Elson, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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 appeals from the July 8, 2019 Law Division order denying his 

petition for post-conviction relief (PCR) without an evidentiary hearing. We 

affirm. 

Defendant was charged in a five-count indictment with second-degree 

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(2) (count two); second-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and seconddegree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count five).

The charges stemmed from gunfire exchanged between two males on a 

residential street at approximately 1:00 p.m. on January 6, 2013. A resident was 

struck in the abdomen by a stray bullet that came through the window of her 

home. She survived the gunshot wound and subsequently identified defendant 

as one of the shooters from photographs. Several neighbors reported hearing 

gunshots to the police but could not identify any of the shooters. However, one 

witness who was outside when the shooting occurred identified defendant as one 

of the shooters, thus corroborating the victim's identification.
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During pre-trial proceedings, the State moved to dismiss counts one 

through four of the indictment. On March 22, 2016, the eve of trial on the 

remaining count, defendant entered a negotiated guilty plea to count five,1and 

admitted possessing an operable firearm on January 6, 2013, knowing that he 

was prohibited from possessing firearms because of his prior criminal 

convictions. On July 15, 2016, defendant was sentenced in accordance with the 

plea agreement to five years' imprisonment, with a five-year period of parole 

ineligibility.

Defendant did not file a direct appeal. On December 21, 2018, defendant 

filed a timely pro se PCR petition, claiming ineffective assistance of counsel 

(IAC) "due to counsel's fail[ure] to communicat[e]." In an unsigned 

certification, defendant stated he "wish[ed] to vacate the plea" because his 

attorney "never review[ed] any discovery with [him]" and "never conducted any 

investigations." No other supporting certifications or affidavits were submitted. 

However, after he was assigned counsel, in his supporting brief, defendant 

argued his attorney failed to communicate and "review discovery with [him]" to 

assist "in developing . . . arguments to present at trial." Defendant also argued 

1

 Defendant also pled guilty to an unrelated charge that is not the subject of this 

appeal.
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his attorney "never conducted any investigations" of the witnesses and thereby 

lost "any opportunity to capture . . . exculpatory information." 

Following oral argument, the PCR judge denied defendant's petition. In a 

written opinion, the judge applied the governing legal principles and concluded 

defendant failed to establish a prima facie case of IAC by a preponderance of 

the evidence. Viewing the facts in the light most favorable to defendant, the 

judge found defendant failed to show that either counsel's performance fell 

below the objective standard of reasonableness set forth in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in 

State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome would have been 

different without the purported deficient performance as required under the 

second prong of the Strickland/Fritz test. See State v. DiFrisco, 137 N.J. 434, 

456-57 (1994) (applying the Strickland test "to challenges of guilty pleas based 

on [IAC]" (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985))).

Specifically, the judge explained that defendant's "allegation that trial 

counsel was ineffective[] fail[ed] to set forth any factual basis for counsel's 

deficiencies or how he was prejudiced." The judge pointed out that defendant 

claimed that trial counsel failed to investigate and "review discovery with [him]" 

but "[n]o facts have been presented as to what an investigation of the State's 
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witnesses would have revealed," "only what investigations could have 

revealed." (Emphasis added). Additionally, the judge determined that 

defendant was not entitled to an evidentiary hearing because he failed to present 

any issues that could not be resolved by reference to the existing record. The 

judge stated that "[d]espite several claims of error against counsel," defendant 

failed to "set forth any facts or information that would give this [c]ourt a basis 

for evidentiary review" but only made "vague," "conclusory" and "speculative" 

allegations.

On appeal, defendant raises the following single point for our 

consideration:

[DEFENDANT] IS ENTITLED TO AN 

EVIDENTIARY HEARING ON HIS CLAIM THAT 

HIS ATTORNEY RENDERED [IAC] FOR FAILING 

TO REVIEW DISCOVERY AND INVESTIGATE.

The mere raising of a PCR claim does not entitle the defendant to an 

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 

1999). Rather, "view[ing] the facts in the light most favorable to a defendant," 

State v. Preciose, 129 N.J. 451, 463 (1992), PCR judges should grant evidentiary 

hearings in their discretion only if the defendant has presented a prima facie 

claim of IAC, material issues of disputed fact lie outside the record, and 
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resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 

216 N.J. 343, 355 (2013); State v. Marshall, 148 N.J. 89, 158 (1997). 

Moreover, "[a] court shall not grant an evidentiary hearing" if "the 

defendant's allegations are too vague, conclusory or speculative," R. 3:22-

10(e)(2), and a defendant "must do more than make bald assertions that he was 

denied the effective assistance of counsel." Cummings, 321 N.J. Super. at 170. 

Instead, he must support his claims with "affidavits or certifications based upon 

the personal knowledge of the affiant or the person making the certification." 

Ibid. See State v. Jones, 219 N.J. 298, 311-12 (2014) ("In order for a claim of 

ineffective assistance of counsel to entitle a PCR petitioner to an evidentiary 

hearing, 'bald assertions' are not enough—rather, the defendant 'must allege 

facts sufficient to demonstrate counsel's alleged substandard performance.'" 

(quoting Porter, 216 N.J. at 355)).

We are satisfied that defendant failed to make a prima facie showing of 

IAC within the Strickland/Fritz test to warrant relief, and we discern no abuse 

of discretion in the judge's denial of his petition without an evidentiary hearing.

2

 

2

 Notably, defendant never even averred that but for counsel's purported errors, 

he would not have pled guilty and would have insisted on going to trial. In order 

to establish the Strickland prejudice prong to set aside a guilty plea based on 

IAC, in addition to showing "there is a reasonable probability that, but for 
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See State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) ("[W]e review 

under the abuse of discretion standard the PCR court's determination to proceed 

without an evidentiary hearing."); State v. Reevey, 417 N.J. Super. 134, 146-47 

(App. Div. 2010) ("[I]t is within our authority to conduct a de novo review of 

both the factual findings and legal conclusions of the PCR court" where, as here, 

no evidentiary hearing was conducted (citations and internal quotation marks 

omitted)). We agree with the judge that defendant's conclusory, speculative,

and unsupported assertions are fatal to his petition. Indeed, "[d]efendant must 

demonstrate a prima facie case for relief before an evidentiary hearing is 

required, and the court is not obligated to conduct an evidentiary hearing to 

allow defendant to establish a prima facie case not contained within the 

allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-

37 (App. Div. 2008).

Affirmed.

counsel's errors, [the defendant] would not have pled guilty and would have 

insisted on going to trial," DiFrisco, 137 N.J. at 457 (alteration in original) 

(quoting Hill, 474 U.S. at 59), "'a [defendant] must convince the court that a 

decision to reject the plea bargain'" and "insist on going to trial" would have 

been "'rational under the circumstances.'" State v. Maldon, 422 N.J. Super. 475, 

486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). 

The latter determination should be "based on evidence, not speculation." Ibid.