SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5251-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL AUSTIN,

Defendant-Appellant.

_________________________

Submitted October 8, 2019 – Decided October 28, 2019

Before Judges Currier and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 12-02-0309.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Elizabeth H. Smith, Designated Counsel, on 

the brief).

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Alanna M. Jereb, Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
2

A-5251-17T3

Defendant Earl Austin appeals from the February 27, 2018 order denying 

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

affirm.

I.

The following facts are taken from the record. On May 19, 2011, 

defendant waived indictment and trial by jury by pleading guilty under 

Accusation No. 11-05-383-A to possession of a controlled dangerous substance 

(CDS), N.J.S.A. 2C:35-10(a)(1). Pursuant to a plea agreement, defendant would 

be sentenced to non-custodial probation, which would run concurrently with a 

previous sentence of juvenile probation.

While awaiting sentencing on the Accusation, on May 26, 2011, defendant 

approached A.A.1in Jersey City while armed with a 9mm handgun. Defendant 

demanded A.A. "give him everything he had." A.A. refused to comply and 

entered his vehicle in an attempt to leave. Defendant fired three shots from his 

weapon at A.A. at close range, striking him through his vehicle and killing him

with two of the shots. On May 28, 2011, defendant turned himself in to the 

police "for the murder of [A.A.]."

 

1

 We use initials to protect the identity of the victim.
3

A-5251-17T3

On February 14, 2012, a Hudson County grand jury charged defendant 

under Indictment No. 12-02-0309 with purposely causing the death of another, 

N.J.S.A. 2C:11-3(a)(1) and (2) (count one); causing the death of an individual 

during the commission of a robbery, N.J.S.A. 2C:11-3(a)(3) (count two); 

causing the death of an individual during the commission of a carjacking, 

N.J.S.A. 2C:11-3(a)(3) (count three); purposely causing serious bodily injury 

with a deadly weapon in the course of a theft, N.J.S.A. 2C:15-1 (count four); 

infliction of injury and use of force upon an occupant of a motor vehicle, 

N.J.S.A. 2C:15-2 (count five); possession of a weapon with the intent to use the 

same weapon unlawfully, N.J.S.A. 2C:39-4(a) (count six); and possession of a 

weapon without a permit, N.J.S.A. 2C:39-5(b) (count seven).

On January 7, 2015, defendant pled guilty to count one, as amended to 

aggravated manslaughter, and the other charges were dismissed. At the plea 

hearing, defendant admitted that he fired three shots at A.A. resulting in A.A.'s 

death. His guilty plea was conditioned upon receiving a maximum sentence of 

fifteen years in state prison, a five-year post-release parole period, and $205 in 

fines. Defendant was also permitted to argue for a lesser sentence as part of the 

plea bargain.
4

A-5251-17T3

On March 20, 2015, defendant was sentenced on the amended aggravated 

manslaughter charge and the CDS charge from 2011. Defendant's sentence on 

the aggravated manslaughter charge was fifteen years in state prison subject to 

the No Early Release Act (NERA),2five years of parole supervision upon 

release, submission of a DNA sample, and mandatory fines and penalties.

As to the drug charge, defendant was sentenced to four years in state 

prison, a two-year suspension of his driver's license, submission of a DNA

sample, and mandatory fines and penalties. The sentences were to run 

concurrently. Defendant filed a direct appeal of his convictions and sentences, 

which we affirmed. State v. Austin, No. A-4189-14 (App. Div. Oct. 28, 2015).

On July 18, 2017, defendant filed a petition for PCR. The PCR court 

appointed counsel and an amended petition was filed on February 27, 2018. 

Defendant argued his trial counsel was ineffective because: (1) she failed to 

advise defendant of the defenses of third persons and lack of actus reus; (2) 

defendant's plea was not knowing and voluntary; (3) the plea was fundamentally 

unfair; (4) defendant did not cause A.A.'s death; (5) trial counsel failed to 

thoroughly investigate the case; and (6) cumulative errors violated defendant's

 

2

 N.J.S.A. 2C:43-7.2.
5

A-5251-17T3

right to a fair proceeding. The PCR court found there was no evidence that trial 

counsel was aware defendant claimed a defense to the charges; or that he was 

improperly advised; and no evidence he would have proceeded to trial and pled 

not guilty to the charges. 

From this record, defendant presents the following points of argument for 

our consideration.

I.

THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING AUSTIN'S PETITION FOR 

POST[]CONVICTION RELIEF AS AUSTIN HAS 

MADE A SUFFICIENT PRIMA FACIE CASE OF 

INEFFECTIVE ASSISTANCE OF COUNSEL TO 

WARRANT AN EVIDENTIARY HEARING.

A. STANDARDS OF PCR, REVIEW, AND 

INEFFECTIVE ASSISTANCE OF COUNSEL.

B. AUSTIN'S LAWYER FAILED TO ARGUE 

POTENTIAL DEFENSES, AND TO ADVISE 

AUSTIN ON THEIR POTENTIAL VIABILITY.

C. AUSTIN'S LAWYER'S MISREPRESENTATION 

OF THE TERMS OF THE PLEA DEAL, WHICH 

INDUCED AUSTIN TO WAIVE HIS RIGHT TO GO 

TO TRIAL AND WHICH NEGATES THE KNOWING 

AND VOLUNTARY REQUIREMENTS OF THE 

PLEA CONSTITUTES INEFFECTIVE ASSISTANCE 

OF COUNSEL.

D. AUSTIN'S LAWYER'S FAILURE TO 

THOROUGHLY INVESTIGATE POTENTIAL 
6

A-5251-17T3

DEFENSES CONSTITUTES INEFFECTIVE 

ASSISTANCE OF COUNSEL.

We are unpersuaded.

II.

Defendant contends that the PCR court should not have dismissed his 

petition without allowing an opportunity to provide further support for his 

claims at an evidentiary hearing. "An evidentiary hearing on an ineffective 

assistance of counsel claim should ordinarily be granted when defendant has 

shown a prima facie case." Pressler & Verniero, Current N.J. Court Rules, 

comment 2 on R. 3:22-10 (2020). "[I]n order to establish a prima facie claim, a 

petitioner must do more than make bald assertions that he was denied the 

effective assistance of counsel. He must allege facts sufficient to demonstrate 

counsel's alleged substandard performance." State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999).

In his petition, defendant denied causing A.A.'s death and claims he was 

trying to wrestle a firearm out of another individual's hands, and during that 

struggle, the handgun discharged, killing A.A. Thus, he argues that he did not 

act purposely, knowingly, or negligently. 

In support of his claim, defendant provided an "unsigned investigation 

report from February 2014." The investigator stated in the report that a witness, 
7

A-5251-17T3

A.B., recanted his prior identification of defendant as the shooter, and stated his 

back was turned when the shots were fired. A.B. was ostensibly under the belief 

that his participation in the Drug Court program would be terminated if he did 

not cooperate in the prosecution of defendant, and therefore, A.B. changed his 

story.

Based upon our careful review of the record, we conclude the PCR court 

aptly found the unsigned investigation report of A.B.'s recanted statement failed

to establish a prima facie case that trial counsel was aware of A.B.'s account of 

the shooting. No affidavit or certification was submitted by A.B. in support of 

defendant's new theory. Moreover, during his plea allocution, defendant 

acknowledged firing three shots at A.A. in his car and that his death resulted 

from two of those shots. Further, we cannot overlook the fact that defendant 

turned himself in to the police voluntarily after the shooting.

"The mere raising of a claim of ineffective assistance of counsel does not 

entitle the defendant to an evidentiary hearing." State v. Peoples, 446 N.J. 

Super. 245, 254 (App. Div. 2016). We agree with the PCR court that defendant's 

claims of defense of others and lack of actus reus are bald assertions and devoid 

of factual support, and no evidentiary hearing was required.
8

A-5251-17T3

III.

Defendant next contends his trial counsel failed to argue potential 

defenses, specifically, use of force for the protection of others under N.J.S.A. 

2C:3-5. He claims that because he was deprived of this advice, he pled guilty 

to aggravated manslaughter in a "panic" and under duress. We disagree.

Based upon our careful review of the record, we are satisfied that 

defendant never advised his trial counsel that he did not pull the trigger leading 

to A.A.'s death. Moreover, A.B. did not witness anything, and the self-serving, 

unauthenticated investigative report "does not establish that trial counsel was 

aware of the witness statement or of [defendant's] claim[] of defense of others[]" 

as noted by the PCR court. No affidavits were submitted by defendant to support 

these contentions, which merely amount to bald assertions.

Defendant contends his right to effective assistance of counsel was also 

violated because no investigation was conducted as to whether the incident was 

videotaped prior to the entry of his guilty plea. Relying upon the uncertified 

statement of A.B. to the private investigator, defendant now claims he tried to 

"intervene" to stop the shooting incident, and another party attacked A.A.

leading to the shots fired.
9

A-5251-17T3

As the PCR court noted, defendant failed to provide any affidavits in 

support of this claim and again, he merely presents bald assertions that are not 

evidential. There is no support for defendant's assumption that a business in the 

locale of the crime scene must have had an operational video camera on that 

captured what happened.

We review claims of ineffective assistance of counsel under the two-prong 

test established by the United States Supreme Court in Strickland v. 

Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland

standard for ineffective assistance of counsel claims under Article I, paragraph 

10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 

(2012). First, defendant must demonstrate that counsel's performance was 

deficient. Strickland, 466 U.S. at 687. Second, he must show there exists "a 

reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Id. at 694. Defendant must show 

that the deficient performance prejudiced the defense. Id. at 687. "This requires 

showing that counsel's errors were so serious as to deprive defendant of a fair 

trial, a trial whose result is reliable." Ibid. With respect to both factors of the 

Strickland test, a defendant asserting ineffective assistance of counsel on PCR 
10 A-5251-17T3

bears the burden of proving his right to relief by a preponderance of the 

evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

Also, the right to counsel guarantees defendants the right "to competent 

counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a 

standard of "reasonableness under prevailing professional norms." Strickland, 

466 U.S. at 688. Deficient performance is established by proving 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. 

Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, 466 U.S. at 690). And, 

the evaluation as to the reasonableness of an attorney's performance must be 

"viewed as of the time of counsel's conduct." Ibid. (quoting Strickland, 466 U.S. 

at 690).

Given the entirely speculative nature of defendant's arguments on the 

purported lack of an investigation, the PCR court correctly determined that

defendant has failed to establish a prima facie case to satisfy either the 

performance or prejudice prong of the Strickland/Fritz paradigm.

IV.

Defendant also challenges the conviction that resulted from his guilty 

plea. He argues that his trial counsel "misled him" about the potential length of 
11 A-5251-17T3

his sentence, and his recommended fifteen-year sentence "really meant a [ten] 

year term." The trial court specifically queried defendant if the State's 

recommendation was his understanding of the plea. He unequivocally replied, 

"Yes, it is, Your Honor." Defendant answered all of the questions appropriately.

The United States Supreme Court has extended the Strickland/Fritz

factors to a criminal defense attorney's representation of an accused in 

connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63, 

(2012); Missouri v. Frye, 566 U.S. 134, 140 (2012). A defendant must 

demonstrate with "reasonable probability" that the result would have been 

different had he received proper advice from his trial attorney. Lafler, 566 U.S. 

at 163 (citing Strickland, 466 U.S. at 694).

Our Supreme Court has also established standards for vacating a guilty 

plea based on a claim of ineffective assistance of counsel:

[t]o set aside a guilty plea based on ineffective 

assistance of counsel, a defendant must show that (i) 

counsel's assistance was not within the range of 

competence demanded of attorneys in criminal cases; 

and (ii) 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.

[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (alterations 

in original) (citation and internal quotation marks 

omitted).]
12 A-5251-17T3

Although the question addressed in Nuñez-Valdéz concerned the 

defendant's immigration status, we have applied the same standard to assess the 

validity of a claim of ineffective assistance of counsel in the context of a guilty 

plea that did not involve the immigration status of the defendant. See State v. 

Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nuñez-Valdéz

standards to assess the materiality of erroneous information provided by defense 

counsel concerning the defendant's right to possess a firearm).

We are persuaded that defendant understood the ramifications of his guilty 

plea, entered his plea knowingly and voluntarily, and that the alleged 

deficiencies here clearly fail to meet either the performance or the prejudice 

prongs of the Strickland/Fritz test, as well as the standard established under 

Nuñez-Valdéz. During his plea hearing, defendant's answers were lucid, his 

concessions were corroborated by the evidence, and there was no indication that 

he was under the influence of any medication, drugs, or alcohol, or threatened 

in any way.

Although defendant now claims he was advised he would receive a tenyear prison term, the PCR court noted the signed plea forms state, "maximum 

sentence not to exceed [fifteen] years." The trial court thoroughly addressed the 

possibility of defendant seeking to withdraw his plea at a later time and 
13 A-5251-17T3

cautioned him, "it's not that easy," and "that burden is high." Defendant also 

indicated that he had enough time to speak to his counsel about his guilty plea.

We have reviewed each of defendant's contentions and the applicable law, 

and we conclude that the remainder of his arguments are without sufficient merit 

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.