SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3949-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON SEGAR, a/k/a

RUSSEL A. McKEE,

Defendant-Appellant.

Submitted March 26, 2020 – Decided June 17, 2020

Before Judges Alvarez and Suter.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 12-02-0302.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Kisha M.S. Hebbon, Designated Counsel, on 

the brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (William P. Miller, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Brandon Segar appeals the March 2, 2018 denial of his petition 

for post-conviction relief (PCR). Having reviewed the decision in light of the 

procedural history and record, we affirm for the reasons stated by Judge 

Christopher R. Kazlau in his written decision. We add the following brief 

comments.

Defendant entered a guilty plea to third-degree possession of imitation 

controlled dangerous substances (CDS) with intent to distribute, N.J.S.A. 

2C:35-11, and first-degree armed robbery, N.J.S.A. 2C:15-1. On December 19, 

2014, he was sentenced to fourteen years imprisonment subject to the No Early 

Release Act's eighty-five percent parole bar, N.J.S.A. 2C:43-7.2, on the robbery,

concurrent to a five-year flat sentence on possession of imitation CDS with 

intent. 

Defendant appealed his sentence on the excessive sentence oral argument 

(ESOA) calendar. It was affirmed on April 15, 2015. On October 9, 2015, the 

Supreme Court remanded the matter for us to consider whether defendant's plea 

colloquy sufficed to establish an adequate factual basis for the offenses. 

On March 9, 2016, after the issue was argued, a second ESOA order 

memorialized the panel's decision that the factual basis was adequate, and that 

thus the judgment of conviction and sentence were affirmed. Defendant's 
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petition for certification was thereafter denied. State v. Segar, 227 N.J. 132 

(2016). 

Now on appeal, defendant raises the following points:

POINT I: THE TRIAL COURT ERRED IN 

FINDING THAT DEFENDANT'S PETITION FOR 

POST CONVICTION RELIEF WAS 

PRO[C]EDURALLY BARRED BECAUSE THE 

ISSUES RAISED IN THE PETITION WERE 

ALREADY ADJUDICATED ON DIRECT APPEAL.

POINT II: THE TRIAL COURT ERRED IN 

DENYING DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF WITHOUT AFFORDING 

HIM AN EVIDENTIARY HEARING TO 

DETERMINE THE MERITS OF HIS CONTENTION 

THAT HE WAS DENIED THE RIGHT TO THE 

EFFECTIVE ASSISTANCE OF COUNSEL DUE TO 

TRIAL COUNSEL'S FAILURE TO ELICIT AN 

ADEQUATE PLEA FACTUAL BASIS, THE FIRST 

APPELLATE COUNSEL'S FAILURE TO RAISE THE 

INADEQUATE FACTUAL BASIS ISSUE, AND THE 

SECOND APPELLATE COUNSEL'S FAILURE TO 

PROPERLY CHALLENGE THE INADEQUATE 

FACTUAL BASIS.

A. The Prevailing Legal Principles Regarding 

Claims Of Ineffective Assistance Of Counsel, 

Evidentiary Hearings And Petitions For Post 

Conviction Relief.

B. Trial Counsel Rendered Ineffective Legal 

Representation By Virtue Of Him Allowing 

Defendant To Plead Guilty To Robbery When 

There Was An Insufficient Factual Basis For This 

Offense.
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C. Defendant's First Appellate Counsel 

Rendered Ineffective Legal Representation By 

Virtue Of His Failure To Raise The Issue Of The 

Inadequate Factual Basis On Direct Appeal.

D. Defendant's Second Appellate Counsel 

Rendered Ineffective Legal Representation By 

Virtue Of His Failure To Properly Challenge The 

Issue Of The Inadequate Factual Basis.

E. Defendant Is Entitled To A Remand To 

The Trial Court To Afford Him An Evidentiary 

Hearing To Determine The Merits Of His 

Contention That He Was Denied The Effective 

Assistance Of Trial And Appellate Counsel.

These points lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). Defendant is pursuing the same claim previously addressed under 

the guise of ineffective assistance of counsel. 

In order to establish the entitlement to PCR by a preponderance of the 

credible evidence, a petitioner must "provide the court with an adequate basis." 

State v. Mitchell, 126 N.J. 565, 579 (1992); see, e.g., State v. Preciose, 129 N.J. 

451, 459 (1992). To succeed on a claim of ineffective assistance of counsel, a 

defendant must establish that his attorney made an error "so serious that counsel 

was not functioning as the 'counsel' guaranteed the defendant by the Sixth 

Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). A 
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defendant must also demonstrate that the alleged error prejudiced his defense. 

Ibid. 

Since the factual basis has been previously found to have been adequate, 

defendant's prior counsel cannot be said to have failed to represent him in a 

competent fashion. In other words, an ineffective assistance of counsel claim 

cannot be grounded on competent representation, and it must be based on an 

error or omission of constitutional magnitude. If we found the colloquy 

supported the plea, counsel's representation was competent. 

Furthermore, nowhere does defendant explain how an inadequate factual 

basis per se is a reason, had it been explained to him, that he would have 

proceeded to trial. Pursuant to State v. Fritz, 105 N.J. 42, 60-61 (1987), a 

defendant must show how the error committed by counsel was of such a nature 

that but for that mistake he would have proceeded to trial. Logically, the failure 

to establish an adequate basis, assuming for the sake of argument that it 

occurred, was not such a mistake. Defendant falls far short of meeting either 

prong under Strickland.

Affirmed.