SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3139-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELMAN MARROQUIN,

Defendant-Appellant.

_______________________

Submitted October 6, 2020 – Decided 

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Indictment No. 16-05-

0284.

Joseph E. Krakora, Public Defender, attorney for 

appellant (John J. Bannon, Designated Counsel, on the 

brief). 

Michael H. Robertson, Somerset County Prosecutor, 

attorney for respondent (Amanda Frankel, 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NOT FOR PUBLICATION WITHOUT THE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 28, 2020
2

A-3139-18T4

Defendant Elman Marroquin appeals from an October 5, 2018 order 

denying his petition for post-conviction relief (PCR) following an evidentiary 

hearing and his motion to withdraw his guilty plea. He also appeals from a 

December 20, 2018 order denying his motion for reconsideration. 

Defendant claims his trial counsel was constitutionally ineffective 

because he failed to: 1) discuss with him all available defenses; 2) review the 

State's discovery with him; 3) warn about his maximum sentencing exposure, 

including the immigration consequence of any plea; and 4) advise that he could 

accept pretrial intervention (PTI), or proceed to trial in lieu of his plea deal. 

Defendant also moved to vacate his plea primarily contending that it was neither 

voluntary nor knowing as he failed to provide a sufficient factual basis to support 

the charges. We disagree with all of these arguments and affirm. 

I.

Defendant was arrested after he got into a drunken altercation with his 

brother and pulled out a box cutter. After the fight was interrupted by a 

bystander, responding officers arrived and asked defendant to drop the box 

cutter but he did not immediately comply. Defendant was arrested and charged 

with: 1) third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); 2) thirddegree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);
3

A-3139-18T4

and 3) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He 

was also issued a summons for resisting arrest, N.J.S.A. 2C:29-2(a)(1), a 

disorderly persons offense. 

Defendant applied for admission into the PTI program, a request that was 

initially recommended and not opposed by the State. As a condition of his 

admission to PTI, however, defendant was required to plead guilty to the 

charges. Although defendant completed the necessary plea forms, he did not 

plead guilty at the scheduled plea hearing. Instead, he maintained his innocence

and requested the opportunity to consult with an immigration attorney. 

After defendant spoke with an immigration attorney, he resubmitted his 

plea forms and pled guilty to amended charges of: 1) simple assault, N.J.S.A. 

2C:12-1(a)(3); 2) disorderly conduct, N.J.S.A. 2C:33-2(a)(1); 3) fourth-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and 4) resisting arrest,

N.J.S.A. 2C:29-2(a).

At the plea hearing, defendant admitted his guilt and no longer claimed he 

was innocent of the charges. He also stated that he was entering the plea 

voluntarily and that nobody "pressure[d him], coerce[d him], or place[d him] 

under duress, or und[ue] influence."
4

A-3139-18T4

In addition, the following colloquy occurred regarding the immigration 

consequences of defendant's plea: 

COURT: Do you understand that as a result of your 

guilty plea that you are substantially likely to be 

deported? 

DEFENDANT: Yes. 

COURT: This court, as a state court, has no[] authority 

over immigration matters. 

DEFENDANT: I understand that. 

COURT: It will be up to [f]ederal immigration 

authorities to decide whether or not you should be 

deported, after you have a hearing. 

DEFENDANT: I understand that. 

COURT: Have you had an opportunity to speak with 

an immigration attorney, or do you wish to do so, prior 

to completing your guilty plea here today?

DEFENDANT: I've spoken to one already. 

COURT: Therefore, you're ready to proceed at this 

time with your guilty plea, after you had the 

opportunity to already speak with an immigration 

lawyer, is that correct?

DEFENDANT: Yes.

COURT: While I do not know what, if any, action will 

be taken by the immigration authorities, any defendant 

who pleads in front of this court is always told that you 
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A-3139-18T4

should assume that you will be deported as a result of 

your plea. Do you understand that warning, sir? 

DEFENDANT: Yes. 

With regard to the factual basis for defendant's plea, defendant's counsel 

and the court elicited the following facts: 

[TRIAL COUNSEL]: . . . [O]n April 7th, 2016[,] at 

approximately 11 p.m. were you in possession of an 

item that's depicted in the photograph marked as 

Exhibit D-1, that's here before you? 

DEFENDANT: Yes. 

[TRIAL COUNSEL]: And this photograph D-1 depicts 

a utility knife that you normally carried with you for 

work purposes? 

DEFENDANT: Yes. 

[TRIAL COUNSEL]: And at approximately 11 p.m. on 

April 7, 2016[,] you were in possession of that utility 

knife not for work purposes, is that correct? 

DEFENDANT: Yes. 

[TRIAL COUNSEL]: On the evening that we just 

mentioned did you have an argument with the victim at 

16 Clairmont Road in Bernardsville at the time we just 

described? 

DEFENDANT: Yes. 

[TRIAL COUNSEL]: At that time did you intend to 

frighten or scare the victim in this case? 
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A-3139-18T4

DEFENDANT: I was trying to frighten him, yes. 

[TRIAL COUNSEL]: At that time, and at that place, 

did you cause a disturbance by having an argument with 

the victim? 

DEFENDANT: Yes. 

[TRIAL COUNSEL]: And at some point the police 

came, is that correct? 

DEFENDANT: Correct. 

[TRIAL COUNSEL]: And after the police came they 

requested that you approach them and you did not

immediately comply, is that correct? 

DEFENDANT: Correct. 

. . . . 

COURT: . . . Mr. Marroquin, did you in the course of 

an argument with the victim on April 7th, 2016, in 

Bernardsville, . . . hold up a box cutter in a manner that 

you put the victim in fear of imminent serious bodily 

injury? 

. . . .

DEFENDANT: Yes.1 

1

 We note that the transcript reveals that the interpreter initially incorrectly 

translated the court's question as to whether defendant put his brother in fear of 

imminent serious bodily injury by using the Spanish word for death. We are 

satisfied that the interpreter, upon immediate request from the court and trial 

counsel, rectified this mistake and posed the appropriate question to defendant. 

In this regard, the interpreter's statement, "I will rectify for the record," was 

followed by defendant's affirmative response. 
7

A-3139-18T4

Defendant was sentenced to two years of probation, community service,

and ordered to participate in substance abuse, anger management and 

psychological evaluations, and complete any recommended treatment. He was 

credited with 204 days of jail credit and immediately released from custody. 

Upon his release, defendant was detained by United States Immigration and 

Customs Enforcement (ICE) representatives and eventually deported to 

Guatemala. 

Defendant never filed a direct appeal of his convictions or sentence. 

While in ICE's custody, defendant filed an initial and amended PCR petition

which was supplemented by a supporting brief by appointed PCR counsel. 

Defendant alleged his counsel was constitutionally ineffective under Strickland 

v. Washington, 466 U.S. 668, 686 (1984), and State v. Fritz, 105 N.J. 42, 58 

(1987), based on the four separate bases previously noted. Defendant also filed 

a motion to vacate his plea. 

In a June 5, 2018 order, the PCR court granted defendant's request for an 

evidentiary hearing. The PCR court found that a limited hearing was necessary 

to further assess whether the advice counsel gave defendant regarding the

immigration consequences of his plea "was negated by conversations that 
8

A-3139-18T4

occurred off the record" and whether trial counsel "pressured" defendant to take 

the plea agreement. 

On October 5, 2018, the PCR court denied defendant's PCR petition and 

his motion to withdraw his guilty plea. In a corresponding written opinion, the 

PCR court specifically rejected defendant's ineffective assistance of counsel 

claim based on counsel's alleged failure to warn about the immigration 

consequences of his plea. It "critically" found that defendant testified that he 

"was informed by immigration counsel that he would be deported if he accepted 

the plea deal, that he was fully aware of the immigration consequences of the 

plea, he understood that he would be deported if he accepted the plea, and that 

he decided to accept the plea nonetheless." As a result, the court found 

"[defendant] was not given misleading advice about . . . deportation." 

The PCR court also found the factual basis for defendant's plea was

sufficient and noted that the plea colloquy established defendant "was in 

possession of a utility knife and used it in a manner to cause the victim to fear 

imminent bodily injury." Further, the PCR court found "[t]he 

circumstances . . . make it apparent that [d]efendant knew he was being 

arrested" and thus satisfied the elements of the resisting arrest charge. 
9

A-3139-18T4

The court also concluded at the time of defendant's plea he "ha[d] not 

made a colorable claim of innocence." Finally, the PCR court noted that 

defendant "gave sworn testimony that he was entering a free and voluntary plea"

and concluded defendant did not establish that he was "misled or coerced into 

taking the plea deal." 

Defendant filed a motion for reconsideration relying on State v. Vasco, 

456 N.J. Super. 382 (2017), rev'd on dissent, 235 N.J. 365 (2018), which the 

Supreme Court decided shortly after the PCR court's October 5, 2018 decision. 

The court denied the motion after hearing oral arguments in a December 20, 

2018 order and corresponding opinion. The PCR court found defendant's 

"reliance on [Vasco] misplaced as [defendant] did admit to the circumstances 

necessary to establish his guilt," which went "far beyond the defendant in 

Vasco."

On appeal, defendant argues:

POINT I

BECAUSE DEFENDANT RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL, THE 

PCR COURT ERRED IN DENYING DEFENDANT'S 

PETITION FOR PCR. 

A. [LEGAL STANDARDS GOVERNING 

APPLICATIONS FOR POST-CONVICTION 

RELIEF. 
10 A-3139-18T4

B. TRIAL COUNSEL FAILED TO ADVISE MR. 

MARROQUIN OF HIS DEFENSES, FAILED 

TO REVIEW DISCOVERY WITH MR. 

MARROQUIN, MISINFORMED MR. 

MARROQUIN OF HIS MAXIMUM 

EXPOSURE IF CONVICTED, AND 

INAPPROPRIATELY ADVISED MR. 

MARROQUIN TO PLEAD GUILTY RATHER 

THAN ACCEPTING PTI OR PROCEEDING 

TO TRIAL]. 

POINT II

BECAUSE DEFENDANT DID NOT MAKE A 

KNOWING, INTELLIGENT, AND VOLUNTARY 

PLEA, THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR PCR. 

A. [LEGAL STANDARDS GOVERNING 

APPLICATIONS FOR POST-CONVICTION 

RELIEF.

B. DEFENDANT DID NOT MAKE A KNOWING, 

INTELLIGENT, AND VOLUNTARY GUILTY 

PLEA WITH A SUFFICIENT FACTUAL 

BASIS]. 

II.

"Post-conviction relief is New Jersey's analogue to the federal writ of 

habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. 

Preciose, 129 N.J. 451, 459 (1992)). It serves as a safeguard to ensure that a 
11 A-3139-18T4

criminal defendant was not unfairly convicted and is the "last line of defense 

against a miscarriage of justice." State v. Nash, 212 N.J. 518, 526 (2013).

Our review of a PCR claim after a court has held an evidentiary hearing 

"is necessarily deferential to [the] PCR court's factual findings based on its 

review of live witness testimony." Nash, 212 N.J. at 540. Where an evidentiary 

hearing has been held, we should not disturb "the PCR court's findings that are 

supported by sufficient credible evidence in the record." Pierre, 223 N.J. at 576 

(citations omitted). We review any legal conclusions of the trial court de novo. 

Nash, 212 N.J. at 540-41; State v. Harris, 181 N.J. 391, 419 (2004). 

As relevant here, one ground for post-conviction relief asks whether there 

has been a "[s]ubstantial denial in the conviction proceedings of defendant's 

rights under the Constitution of the United States or the [c]onstitution or laws 

of the State of New Jersey." R. 3:22-2(a). A criminal defendant's right to 

counsel, under the Sixth Amendment of the United States Constitution and 

article I, paragraph 10 of the New Jersey Constitution, includes the right to 

adequate legal advice. Strickland, 466 U.S. at 686; Fritz, 105 N.J. at 58. 

To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's 

performance was deficient, but also that the deficiency prejudiced his right to a 
12 A-3139-18T4

fair trial. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. The United States 

Supreme Court has extended these principles 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, 143-44 

(2012). 

There is a strong presumption that counsel "rendered adequate assistance 

and made all significant decisions in the exercise of reasonable professional 

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not 

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific 

errors of counsel undermined the reliability" of the proceeding. United States 

v. Cronic, 466 U.S. 648, 659 n.26 (1984). 

In order to establish the Strickland prejudice prong to set aside a guilty 

plea based on ineffective assistance of counsel, a defendant must also show 

"there is a reasonable probability that, but for counsel's errors, [defendant] 

would not have pled guilty and would have insisted on going to trial." State v. 

DiFrisco, 137 N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59 

(1985)). Moreover, "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. 
13 A-3139-18T4

2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). That 

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

As noted, defendant points to four separate errors committed by his trial 

counsel that deprived him of his Sixth Amendment rights, "if not individually, 

then cumulatively." We discuss each claim separately and conclude defendant 

failed to satisfy either the performance or prejudice prong of the Strickland test. 

A. Failure to discuss defenses.

Defendant argues that his trial counsel was constitutionally deficient 

because he never discussed all available defenses with him. Specifically, 

defendant contends discovery supported viable claims that he: 1) acted in selfdefense; 2) did not possess the requisite criminal intent based on his

intoxication; and 3) was in lawful possession of the boxcutter. In support, 

defendant points to his testimony before the PCR court and his statements to the 

police that his brother "broke [some beer] bottles and then . . . pushed [defendant 

a] couple times." Defendant also claims a bystander "came from nowhere" and 

threw him against a dumpster. Defendant argues these facts created a cognizable 

claim of self-defense because he pulled out the box cutter to defend against his 

drunken brother's actions and from an unknown assailant. We reject defendant's 

arguments for two reasons. 
14 A-3139-18T4

First, at the evidentiary hearing, defendant's trial counsel testified that he 

discussed with defendant his alleged "innocen[ce]" and "possible defenses" and

decided to assert a "factual defense." Counsel further explained that he intended 

to focus on the fact that the box cutter "was not a deadly weapon that [defendant] 

was holding. That he had no intent. That it wasn't used in any of the incidents 

as alleged." We glean from the court's denial of defendant's petition that it 

rejected defendant's testimony and credited that of his trial counsel. 

Second, we conclude trial counsel's strategic decision to ultimately plead 

guilty exhibited "reasonable professional judgement." Strickland, 466 U.S. at 

690. As the PCR court noted, defendant "fail[ed] to establish a colorable claim 

of self-defense." Indeed, use of the box cutter to put defendant's brother in fear 

of serious bodily injury was a disproportionate response to the altercation. See

N.J.S.A. 2C:3-4. 

B. Failure to review discovery.

With respect to counsel's alleged failure to review discovery with him, 

defendant specifically claims that his trial counsel "never reviewed [the audio 

of his brother]'s statement to the police with him."2 Defendant asserts that the 

2

 Several weeks after defendant was arrested, the police conducted an interview 

of his brother in Spanish. This interview was summarized in English in the 
15 A-3139-18T4

paper discovery was not an "honest narrative of the statement of [his brother]" 

because it was "inaccurate, misleading, and self-serving." 

During the evidentiary hearing, however, trial counsel stated he did 

review all necessary discovery materials with defendant but that he was unable 

to play any audio recording for defendant because he was not permitted to bring 

his laptop to the jail where defendant was incarcerated. While trial counsel 

admitted to not translating the brother's statement to the police from Spanish to 

English, he did review with defendant the prosecutor's "paper discovery," which 

would have included the report from the State summarizing his brother's

statement. 

Moreover, we note there is no material conflict between the summary in 

the investigation report and the translation of the brother's statement to the 

police in the record. While defendant's brother started the interview by denying 

the presence of a box cutter, he then recanted that statement at the end of the 

interview and stated defendant did possess the box cutter and that it was pointed 

at his throat. 

C. Failure to advise about sentencing exposure.

prosecutor's investigation report. The audio recording was eventually 

transcribed into English for purposes of defendant's PCR petition and was 

available in the record for our review. 
16 A-3139-18T4

Defendant also asserts his trial counsel failed to inform him of his 

maximum sentencing exposure if convicted, including "the collateral 

immigration consequences." Defendant specifically argues that trial counsel 

"failed in his obligation to explain the matter [of deportation] to [defendant] to 

the extent reasonably necessary to permit him to make informed decisions." See

State v. Nuñez-Valdéz, 200 N.J. 129, 140-43 (2009) (holding counsel is 

ineffective where advice given to a defendant regarding the removal 

consequences of a guilty plea is "false," or "inaccurate" and affirmatively 

"misleading"). 

As noted, the PCR court concluded "[defendant] was not given misleading 

advice about . . . deportation." This finding was fully supported by sufficient 

credible evidence in the record, particularly the colloquy from the plea hearing. 

See Pierre, 223 N.J. at 576. Indeed, defendant admitted to speaking with an 

immigration attorney and that she answered all his questions. The record 

establishes that defendant was warned multiple times that deportation was 

substantially likely to occur based on his plea. 

D. Failure to advise regarding PTI and ability to proceed to trial.

Defendant's claim that his trial counsel failed to advise him regarding the 

availability of the PTI program or his ability to proceed to trial is also belied by 
17 A-3139-18T4

the record. Indeed, defendant was fully aware of the option of entering the PTI 

program as it was discussed at the first plea hearing, which did not conclude as 

defendant initially proclaimed his innocence and requested to speak with 

immigration counsel. 

In sum, we conclude defendant has failed to satisfy either the performance 

or prejudice prong under Strickland for all four of his ineffective assistance of 

counsel claims. Further, defendant has failed to show it would have been 

rational to forego his guilty plea and proceed to trial under the circumstances. 

Maldon, 422 N.J. Super. at 486.

III.

In his second argument, defendant claims that the court should have 

granted his petition and vacated his entire plea due to his failure to provide an 

adequate factual basis for the unlawful possession of a weapon and resisting 

arrest charges. Defendant also claims the court committed error when it denied 

his request to vacate his plea under State v. Slater, 198 N.J. 145, 150 (2009). 

We disagree with these arguments. 

Where, as here, the application to withdraw a guilty plea is made after 

sentencing, a defendant must demonstrate that a "manifest injustice" occurred. 

Slater, 198 N.J. at 158 (citing R. 3:21-1). "[E]fforts to withdraw a plea after 
18 A-3139-18T4

sentencing must be substantiated by strong, compelling reasons." Id. at 160. 

Courts considering post-sentencing motions apply "a more stringent standard" 

and "weigh[] more heavily the State's interest in finality." State v. McQuaid, 

147 N.J. 464, 487 (1997). Moreover, "[i]n the PCR context, to obtain relief from 

a conviction following a plea, 'a petitioner must convince the court that a 

decision to reject the plea bargain would have been rational under the 

circumstances.'" State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) 

(quoting Padilla, 559 U.S. at 372). 

In Slater, the Supreme Court delineated a four-factor balancing test to 

guide courts in exercising their discretion to set aside guilty pleas. 3 Id. at 157-

58. The Court in State v. Tate, however, instructed "when the issue is solely 

whether an adequate factual basis supports a guilty plea, a Slater analysis is 

unnecessary." 220 N.J. 393, 404 (2015) (citations omitted). Such an issue is 

3

 These factors are:

(1) whether the defendant has asserted a colorable 

claim of innocence; (2) the nature and strength of 

defendant's reasons for withdrawal; (3) the existence of 

a plea bargain; and (4) whether withdrawal would result 

in unfair prejudice to the State or unfair advantage to 

the accused.

[Slater, 198 N.J. at 150.]
19 A-3139-18T4

reviewed de novo, because "[a]n appellate court is in the same position as the 

trial court in assessing whether the factual admissions during a plea colloquy 

satisfy the essential elements of an offense." Ibid. 

In recognition of a defendant's constitutional 

protections, when he or she decides to plead guilty and 

waive the right to a trial, the court "must be convinced 

that (1) the defendant has provided an adequate factual 

basis for the plea; (2) the plea is made voluntarily; and 

(3) the plea is made knowingly." 

[State v. Gregory, 220 N.J. 413, 418 (2015) (quoting 

State v. Lipa, 219 N.J. 323, 331 (2014)); see also R.

3:9-2.]

The factual basis for the plea can be established in either of two ways: 

"defendant may either explicitly admit guilt with respect to the elements or may 

'acknowledge[] . . . [underlying] facts constituting the essential elements of the 

crime.'" State v. Campfield, 213 N.J. 218, 231 (2013) (citation omitted); see 

also Gregory, 220 N.J. at 419-20. As the Supreme Court stated in State v. Sainz, 

107 N.J. 283, 292 (1987), "[t]he essential thing is that the defendant is in fact 

guilty of the crime for which he is being sentenced." 

A factual basis for unlawful possession of a weapon exists when: 1) there

is a weapon; 2) that defendant possessed knowingly; and 3) "under 

circumstances not manifestly appropriate for such lawful uses." N.J.S.A. 2C:39-

5(d). Circumstances that are not manifestly appropriate include a threat of harm 
20 A-3139-18T4

to persons. State ex rel. G.C., 179 N.J. 475, 480-81 (2004). Additionally, a 

factual basis for resisting arrest exists when: 1) there was a law enforcement 

officer; 2) effecting an arrest; 3) that defendant knew or had reason to know that 

the officer was effecting an arrest; and 4) defendant "purposely prevent[ed]" the 

officer from effecting the arrest. N.J.S.A. 2C:29-2(a); see also State v. Simms, 

369 N.J. Super. 466, 470 (App. Div. 2004). 

Here, defendant stated in his plea colloquy that it was his voluntary 

decision to enter the plea agreement, he was guilty of the charges, and nobody 

pressured, coerced, or placed him under duress or undue influence. Further, 

defendant admitted to facts that established a factual basis for a conviction of 

unlawful possession of a weapon. In the plea colloquy, defendant stated he was 

carrying a box cutter and that he was "in [its] possession . . . not for work 

purposes." Defendant also admitted he used the box cutter to "put [his brother] 

in fear of imminent serious bodily injury." These are circumstances that are not 

"manifestly appropriate for such lawful uses." See N.J.S.A. 2C:39-5(d).

Defendant relies on State v. Blain, 221 N.J. Super. 66, 70 (App. Div. 

1987), State v. Riley, 306 N.J. Super. 141, 143-45 (App. Div. 1997), and Vasco, 

456 N.J. Super. at 395 (Espinosa, J., dissenting), for the proposition that mere 

possession of a weapon is not sufficient to support a factual basis for unlawful 
21 A-3139-18T4

possession. Unlike these cases, and as noted, defendant admitted to facts that 

show circumstances "not manifestly appropriate for such lawful uses" by using

the box cutter to threaten his brother. 

We also conclude defendant provided a sufficient factual basis for the 

resisting arrest charges. Defendant admitted during his plea colloquy that the 

police arrived because of a fight with his brother and that "[the police] requested 

that [he] approach them and [that he] did not immediately comply." 

Further, we consider the plea colloquy as a whole. See Gregory, 220 N.J.

at 420 (holding courts may look at "surrounding circumstances" from 

"stipulations and facts admitted or adopted by the defendant" (citations 

omitted)). In this regard, defendant possessed the box cutter when the officers 

arrived and admitted he failed to comply with their ensuing instructions after 

intentionally using the box cutter to threaten his brother. We can infer from 

these facts that defendant had reason to know the officers arrived to effectuate 

an arrest. See, e.g., State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997)

(noting "[t]he failure to announce that defendant was under arrest would only be 
22 A-3139-18T4

one factor to be considered in the overall sequence of events leading to" a 

resisting arrest charge), rev'd on other grounds, 155 N.J. 317, 319 (1998).4 

Defendant's reliance on State v. Ashley, 443 N.J. Super. 10, 22-23 (App. 

Div. 2015), is misplaced. Unlike the defendant in Ashley who sought to 

withdraw his plea on direct appeal, defendant seeks relief by way of a PCR

petition, which requires defendant to show a substantial denial of his 

constitutional or legal rights. R. 3:22-2(a); see also O'Donnell, 435 N.J. Super. 

at 368-73 (reviewing distinctions between motion to withdraw plea and petition 

for PCR). Here, defendant did not assert a claim of innocence contemporaneous 

to his plea, and we conclude his conviction does not constitute a deprivation of 

his constitutional rights under the circumstances presented. 

Finally, defendant argues even if we find he provided a sufficient factual 

basis, the PCR court erred in refusing to vacate his plea under the Slater factors. 

4

 We observe that defendant relies on Vasco, 456 N.J. Super. at 395 (Espinosa, 

J., dissenting), for the proposition that a court reviewing a plea colloquy may 

not rely on information outside of the facts elicited at the plea hearing. In his 

merits brief, however, defendant inconsistently relies on the responding officers' 

investigation reports. These reports indicate defendant refused to put down the 

box cutter after a responding officer pointed a gun at him and defendant started 

to approach the officer. The reports also indicate defendant pulled away from 

officers when they attempted to handcuff him. As we have concluded that the 

plea colloquy provided a sufficient factual basis, we have not considered these 

reports in our analysis. 
23 A-3139-18T4

After balancing all four of the Slater factors, we determine under this record that 

defendant has not met his burden of substantiating his request with "strong, 

compelling reasons." Slater, 198 N.J. at 160. Defendant has not shown that the 

denial of his motion was manifestly unjust, overcoming the "formidable barrier"

created by the acceptance of his guilty plea. Id. at 156 (quoting Blackledge v. 

Allison, 431 U.S. 63, 74 (1977)).

To the extent we have not addressed any of defendant's remaining 

arguments, it is because we have determined they are without sufficient merit to 

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

Affirmed.