SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4704-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAJAHN BROWN,

Defendant-Appellant.

________________________________

Submitted May 31, 2018 – Decided June 12, 2018

Before Judges Haas and Rothstadt.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Indictment Nos. 

97-01-0277 and 97-06-2871.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Suzannah Brown, Designated 

Counsel, on the brief).

Robert D. Laurino, Acting Essex County 

Prosecutor, attorney for respondent (Kayla 

Elizabeth Rowe, Special Deputy Attorney 

General/Acting 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NOT FOR PUBLICATION WITHOUT THE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.
2 A-4704-16T1

Defendant appeals from the May 8, 2017 Law Division order 

denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm.

After an Essex County grand jury returned two indictments 

charging defendant with a total of four drug-related offenses, he 

pled guilty to two counts of third-degree possession of cocaine 

with intent to distribute it, N.J.S.A. 2C:35-5(b)(3). On April 

17, 1998, the trial court sentenced defendant to concurrent fouryear terms on the two offenses. The remaining two charges were 

dismissed.

More than eighteen years later, on October 28, 2016, filed 

his petition for PCR. In his petition, defendant alleged that his 

plea attorney failed to advise him that if he committed federal 

offenses in the future, he would be subject to enhanced penalties 

because of his State convictions.

Following oral argument, Judge Marysol Rosero rendered a 

thorough oral opinion denying defendant's petition for PCR. The 

judge found that an evidentiary hearing was not required because 

there was no dispute as to any of the material facts underlying 

defendant's petition. In this regard, the judge accepted 

defendant's contention that his plea attorney did not tell him 

that if he continued to commit crimes, he would face enhanced 

punishment. 
3 A-4704-16T1

Citing State v. Wilkerson, 321 N.J. Super. 219, 223 (App. 

Div. 1999), the judge held that defendant's plea counsel had no 

duty to give advice concerning the sentencing features of other 

state or federal laws. Thus, the judge concluded that defendant 

failed to satisfy the two-prong test of Strickland v. Washington, 

466 U.S. 668, 687 (1984), which requires a showing that plea 

counsel's performance was deficient and that, but for deficient 

performance, the result would have been different.

In addition, Judge Rosero noted that Rule 3:22-12(a)(1) 

precludes PCR petitions filed more than five years after entry of 

a judgment of conviction unless the delay was "due to defendant's 

excusable neglect and . . . there is a reasonable possibility that 

if the defendant's factual assertions were found to be true 

enforcement of the time bar would result in a fundamental 

injustice[.]" Because defendant's plea attorney was not required

to advise him of the enhanced sentencing features of federal 

criminal law at the time of his plea to the State charges, the 

judge held that there would be no "fundamental injustice" in 

applying the five-year time bar to defendant's petition, which was 

filed more than thirteen years out of time. This appeal followed.

On appeal, defendant argues that the trial court erred by: 

(1) ruling that his petition was time-barred; and (2) denying the 

petition without an evidentiary hearing. We disagree.
4 A-4704-16T1

The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999). Rather, trial courts should 

grant evidentiary hearings and make a determination on the merits 

only if the defendant has presented a prima facie claim of 

ineffective assistance of counsel, material issues of disputed 

fact lie outside the record, and resolution of those issues 

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 

343, 355 (2013). 

To establish a prima facie claim of ineffective assistance 

of counsel, the defendant 

must satisfy two prongs. First, he must 

demonstrate that counsel made errors so 

serious that counsel was not functioning as 

the counsel guaranteed the defendant by the 

Sixth Amendment. An attorney's representation 

is deficient when it [falls] below an 

objective standard of reasonableness. 

Second, a defendant must show that the 

deficient performance prejudiced the defense. 

A defendant will be prejudiced when counsel's 

errors are sufficiently serious to deny him a 

fair trial. The prejudice standard is met if 

there is a reasonable probability that, but 

for counsel's unprofessional errors, the 

result of the proceeding would have been 

different. A reasonable probability simply 

means a probability sufficient to undermine 

confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) 

(citations omitted).]
5 A-4704-16T1

To 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 (2009) (alteration in original) 

(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). We review 

a judge's decision to deny a PCR petition without an evidentiary 

hearing for abuse of discretion. See R. 3:22-10; State v. 

Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of 

discretion here.

Judge Rosero correctly relied upon our decision in Wilkerson, 

where we held there is "no constitutional requirement that a 

defense attorney must advise a client or defendant that if he or 

she commits future criminal offenses that there may be adverse 

consequences by way of enhancement of the penalty" in connection 

with a plea agreement. 321 N.J. Super. at 223. Instead, we noted 

that "generally individuals should be aware as a matter of common 

sense that a continuing course of antisocial or criminal conduct 

may lead to increased penalties." Ibid. Because defendant's plea 

attorney was therefore not ineffective for failing to provide this 
6 A-4704-16T1

advice, defendant was unable to meet either of the Strickland

prongs.

Although Judge Rosero denied defendant's petition on its 

merits, she also properly found it was time-barred under Rule

3:22-12(a)(1). Because defendant did not present a prima facie 

case of ineffective assistance, he is unable to demonstrate that 

applying the time bar would result in a "fundamental injustice."

Finally, an evidentiary hearing was not required under the 

circumstances presented in this case. Such a hearing is only 

required "when there are disputed issues of material facts related 

to the defendant's entitlement to PCR, particularly when the 

dispute regards events and conversations that occur off the record 

or outside the presence of the judge." Porter, 216 N.J. at 354. 

Here, there was no dispute as to any material fact relative to 

defendant's petition.

Affirmed.