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, Salem 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, attorney 

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NOT FOR PUBLICATION WITHOUT THE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, 2018
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Defendant Edward McKinney appeals from the denial of his petition for 

post-conviction relief (PCR), contending trial counsel1 were 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 were 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-five percent period of parole

disqualification. 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 understood 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).
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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 with the grand jury. He indicated 

that he would accept a plea to a second-degree robbery 

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

percent]. I know that you may not be interested, but I 

am obligated to advise you of any new plea offers.

On December 7, 2012, defendant wrote to counsel stating, "My last plea 

offer was [five] years, [eighty-five present] but the judge wouldn't allow me to 

plead out, for reasons being I don’t know. But I was more than willing to accept 

his plea and to get the mess over with." Defendant 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 Public Defender's office assigned defendant new counsel in January 

2013, because of an 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 advised 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:
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 Having not been directly involved and trying to read 

through the case file, it's not really clearly defined, as 

to what the case was, but Mr. McKinney has informed 

me on several occasions that he still would like to take 

that deal and would like me to present that to the [c]ourt 

today.

 So that's what I'm doing, is to inform you that it is 

his request for this [c]ourt to allow him to still enter a 

plea of guilty to the . . . [r]obbery charge.

In response, the trial judge referred to the pre-trial memorandum 

containing the higher plea offer. He stated: "So I see no change in circumstances 

and I certainly don’t see any change in circumstances that would allow me to 

enter a plea that was less than what was 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 count 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 persons offense of harassment, N.J.S.A. 2C:33-

4.
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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 the remaining counts. This court affirmed defendant's

convictions, but remanded for resentencing. State v. McKinney, No. A-5379-

12 (App. Div. Nov. 30, 2015) (slip op at 2, 14). On remand, the trial court 

imposed an aggregate twenty-year prison term with an eighty-five percent parole

disqualifier. We affirmed the sentence. State v. McKinney, No. A-2235-15 

(App. Div. 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 wished to proceed to trial" and "wanted [his] attorney to negotiate the 

best offer possible." He advised that counsel 

did ultimately negotiate an offer which I was willing to 

accept. . . . However, I was then told that the [c]ourt 

indicated 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 guilty plea, but I did not 

receive any updates until we were about to begin trial 

and the judge refused to allow me to plead.

Defendant included several other instances where he believed trial counsel were

ineffective.
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After oral argument, the PCR court denied defendant's petition without an 

evidentiary hearing in a written decision issued on September 19, 2017. The 

judge found defendant had not established a prima facie case of ineffective 

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 REPRESENTATION 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. 
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D. THE DEFENDANT DID NOT RECEIVE 

ADEQUATE LEGAL REPRESENTATION 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 REJECTING THE DEFENDANT'S PETITION, IN 

PART, ON PROCEDURAL GROUNDS PURSUANT

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 allege 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 

functioning 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, the 
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result of the proceeding 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 likelihood that his or her claim . . . will 

ultimately 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 vague, 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 assertions" of ineffective assistance are 

insufficient 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 failure to file a motion to suppress his statement, and in 

not objecting to certain testimony elicited at trial. We are satisfied defendant failed 

to establish a prima facie case of ineffective assistance of counsel regarding his 
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contentions that counsel failed to file a Miranda2 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 dismissal of his ineffective assistance of counsel claim without an evidentiary 

hearing in regard to the plea proceedings.

In Lafler 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 State 

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). 
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accepted the reduced plea. Instead, defendant proceeded to trial, where he received 

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

3

Therefore, 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 an evidentiary hearing. Without a hearing, we 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 

circumstances 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.