SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 1256

- 17T4 STATE OF NEW JERSEY,
Plaintiff

- Respondent,

v. EDWARD O. MCKINNEY,
Defendant

- Appellant.

Submitted October 24, 2018

– Decided Before Judges Koblitz and Currier. On appeal from Superior Court of New Jersey, Law Division, Sal e m County, Indictment No. 12

- 03

- 0170. Joseph E. Krakora, Public Defender, attorney for appellant ( Monique D. Moyse, Designated Counsel; William P. Welaj, on the brief). John T. Lenahan, Salem County Prosecutor, atto rney for respondent (David M. Galemba, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

December 18, 20182 A

- 1256

- 17T4

Defendant Edward McKinney appeals from the denial of his petition for post

- conviction relief (PCR), contending trial counsel 1 w ere ineffective , and the PCR court improperly denied his petition without an evidentiary hearing. Because we conclude an evidentiary hearing is appropriate on the sole issue of
whether trial counsel w ere ineffective during the plea stage of the proceedings ,

we reverse. During the pre
- trial conference on July 13, 2012, all parties agreed the plea offer was a ten

- year prison term with an eighty

- f i v e percent period of parol e disqualifi cation

. The judge discussed with defendant, that if he rejected the plea
and was found guilty of one of the first

- degree offenses, he could receive an
extended term sentence between ten years and life in prison. Defendant stated
he under s tood the potential consequences of a conviction , but wished to proceed
with the trial scheduled for August 13, 2012

. He signed the pretrial memorandum on the same day. The following week, on July 20, defense counsel wrote to defendant, answering questions defendant had raised in a phone call to her office. At the end of the letter, she advised:

1 Defendant was initially represented by a staff attorney from the Office of the Public Defender. After defendant complained, the Office reassigned his case to a private pool attorney. See N.J.S.A. 2A:158A

- 7(c) to (d).3 A

- 1256

- 17T4 I have engaged the prosecutor in further plea negotiations based on what I believe to be witness availability issues and inappropriate comments made during his colloquy wi t h the grand jury. He indicated that he w oul d accept a plea to a second

- degree robbery in exchange for a sentence of [five] years, [eighty

- five p e r c ent]. I know that you may not be interested, b ut I am obligated to ad v ise you of any new p l ea offers. On December 7, 2012, defendant wrote to counsel stating , "My last plea
offer w a s [five] years, [ eighty

- five present] but the judge wouldn't allow me to plea d out, for rea s ons being I don’t know. But I wa s more than willing to accept his plea and to get the mess o v er with. " Def endant reminded counsel he had
been in jail for a year awaiting trial, and closed his letter by requesting credit
for his current jail time and a plea agreement including a prison term of three
years with no parole ineligibility period.
The P ublic D efe n der's office assigned defendant new counsel in January
2013 , because of a n alleged conflict, but the file did not reflect any action taken regarding the reduced plea offer. On the first day of trial, March 19, 2013, the

new defense counsel adv i sed the court that defendant had attempted to accept
the plea offer of five years with eighty

- five percent parole disqualifier but " was not allowed by the [c] ourt because [the case] was on the trial list." Counsel
further stated:4 A

- 1256

- 17T4 H aving not been directly in v ol v ed and trying to read through the case file, it's n o t really clearly defined, as to what t h e case was, but Mr. McKinney has informed me on several occ a sions that he still would like to take that d e al and wo u ld like me to p r e s ent that to the [ c ] ourt today. So that's what I'm doing, is to inform you that it is his request for th is [ c ] ourt to allow him to still enter a plea of guilty to the . . . [ r ] obbery charge. In response, t he trial judge referred to the pre

- trial memorandum containing the higher plea offer. He stated: "So I see no change in c i r c umstances and I certainly don’t see any change in circumstances that would allow me to enter a plea that was less than what wa s offered to him on the day we put this
matter on the trial list." The judge explained that , even if a subsequent reduced
offer was made, it was not offered "with the consent of the [c] ourt and the plea cutoff rule would have prohibited that offer, absent a material change in
circumstances." The case proceeded to trial, and defendant was found guilty of two counts
of first

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

- 1, one c ount of third

- degree terroristic threats, N.J.S.A. 2C:12

- 3(b), and fourth

- degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39

- 4 (e)

. He was also found guilty
of the lesser

- included disorderly pe rson s offense of harassment , N.J.S.A. 2C:33

- 4.5 A

- 1256

- 17T4

Defendant was sentenced to an extended forty

- five

- year prison term on the first count with an eighty

- five percent period of parole disqualification and

concurrent terms on t h e remaining counts. This court affirmed defendant's
convic t ions , but remanded for resentencing. State v. McKinney , No. A

- 5379

- 12 (App. Div. Nov. 30, 2015 ) (slip op at 2, 14 )

. On remand, t he trial court imposed an aggregate twenty

- year prison term with an eighty

- five percent par ole disqualifier. We affirmed the sentence. State v. McKinney , No. A

- 2235

- 15 (App. Di v. May 4, 2016). After defendant filed a pro se petition for PCR, he was assigned counsel who filed a supplemental brief. In his supporting certification , defendant stated
he "never wi shed to proceed to trial" and "wanted [ his ] attorney to negotiate the best offer p o ssi b le." He advised that counsel

did ultimately negotiate an offer which I was willing to accept.

. . . However, I was then told that the [c] ourt indi cated it was too late for me to plead to that offer.

. . . I repeatedly asked my attorney to fight for the [ c ] ourt to allow me to enter a g uilty plea, but I did not receiv e any updates until we were about to begin trial and the judg e refused to allow m e to plead.
Defendant included several other instances where he believed trial counsel were ineffective.6 A

- 1256

- 17T4

After oral argument, the PCR court denied defendant's petition without an evidentiary hearing in a written decision issued on September 1 9, 2017. T h e judge found defendant had not established a prima facie case of inef fective
counsel and an evidentiary hearing was not warranted. Defendant presents the following issues on appeal:
POINT I : THE POST

- CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST

- CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST [

- ] CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM EITHER TRIAL COUNSEL DURING THE PLEA STAGE OF THE PROCEEDINGS.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRES ENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO MAKE A MOTION SEEKING TO SUPPRESS THE STATEMENT OBTAINED BY LAW ENFORCEMENT FROM THE DEFENDANT.7 A

- 1256

- 17T4 D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESEN TATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO TESTIMONY ELICITED BY THE STATE FROM TWO POLICE OFFICERS INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT.
POINT II : THE POST

- CONVICTION RELIEF COURT ERRED IN REJE CTING THE DEFENDANT'S PETITION, IN PART, ON PROCEDURAL GROUNDS PURSUAN T TO RULE 3:22

- 4. Where the PCR court has not held an evidentiary hearing, a de novo review is appropriate. State v. Harris , 181 N.J. 391, 420

- 21 (2004).
All of defendant's claims al lege the ineffective assistance of counsel. The standard for determining whether counsel's performance was ineffective under
the Sixth Amendment was formulated in Strickland v. Washington , 466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz , 105 N.J. 42 (1987). In order to prevail on an ineffective assistance of counsel claim , defendant must meet the two

- prong test establishing: (l) counsel's performance was deficient and he or she made errors so egregious that counsel was not
function ing effectively as guaranteed by the Sixth Amendment; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the8 A

- 1256

- 17T4

result of the proceedi ng would have been different." Strickland , 466 U.S. at 687, 694. A defendant shall be entitled to an evidentiary

hearing only upon the establishment of a prima facie case in support of post

- conviction relief . . . [t] o establish a prima facie case, defendant must demonstrate a reasonable like lihood that his or her claim . . . will ul timately succeed on the merits.
R. 3:22

- 10(b). However, merely raising a claim for PCR does not entitle defendant to an evidentiary hearing. State v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999). Where "defendant's allegations are too v ague, conclusory or speculative, " the court shall not grant an evidentiary hearing. R. 3:22

- 10 (e)(2); see also Cummings , 321 N.J. Super. at 170 (reasoning that "bald assertio ns" of ine ffective assistance are
insuffic ient to sustain a claim for PCR or warrant an evidentiary hearing). Rather, "defendant must allege specific facts and evidence supporting his allegations" for the court to grant an evidentiary hearing. State v. Porter , 216 N.J. 343, 355 (2013).
Defendant argues both his trial counsel were ineffective during the plea stage of the proceedings, in their fail ure to file a m otion to suppress his statement, and in not objecting to certain testimony elicited a t trial

. We are satisfied defendant failed to establish a prima facie case of ineffective assistance of counsel regarding his9 A

- 1256

- 17T4

contentions that counsel failed to file a Miranda 2 motion and object to certain testimony. We affirm those rulings substantially for the reasons expressed by the PCR judge in her September 19, 2017 written decision. We conclude differently in our review of defendant's contention of error in
the dismiss al of his ineffective assistance of counsel claim without an evidentiary hearing in regard to the plea proceedings.
In Laf ler v. Cooper , 566 U.S. 156, 162

- 63 (2012), the United States Supreme
Court extended the Strickland test to challenges of guilty pleas based on ineffective
assistance of counsel. "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Id. at 168

. To establish prejudice, a defendant must show "there is a reasonable probability that
. . . the defendant would have accepted the plea[,] . . . that the court would have accepted its terms, and that the conviction or sentence, . . . under the offer's terms would have been less severe" than that imposed after trial. Id. at 164. Here, defendant has shown , through written correspondence , that the S tate
extended a significantly reduced plea offer within a week of the plea cut

- off. He
also indicated , in that correspondence and his PCR brief , that he would have

2 Miranda v. Arizona , 384 U.S. 436 (1966).10 A

- 1256

- 17T4

accepted the reduced plea. Instead, defen dant proceede d to trial , where he received

a sentence nine times more severe than under the revised plea agreement

. 3
Theref ore, defendant has demonstrated "but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland , 466 U.S. at 687.
Because we find defendant has met the Strickland / Fritz test in demonstrating with "reasonable probability" that the result would have been different if his attorney had contacted the court regarding the reduced plea offer, we determine a remand is appropriate for a n evidentiary hearing. Wi thout a hearing, w e cannot
know why the court was not immediately apprised of the new offer. With the reduced plea so near in time to the pretrial memorandum, it was incumbent on both
trial counsel to seek an exception to the plea cut

- off and assert a change in material
cir cumstances pursuant to Rule 3:9

- 3(g). On remand , an evidentiary hearing shall
be conducted solely to determine whether defense counsel were ineffective in failing to take the appropriate action of alerting the court to defendant's desire to accept the significantly reduced plea offer.
Reversed and remanded. We do not retain jurisdiction.

3 The sentence ultimately imposed upon remand was four times more severe than the revised plea offer.