SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3677-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

TENNEYSON D. 

FAIRCLOUGH, 

 Defendant-Appellant. 

_______________________

Argued December 5, 2023 – Decided January 26, 2024 

Before Judges Haas and Gooden Brown. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 17-07-

0938.

Steven E. Braun, Designated Counsel, argued the cause

for appellant (Joseph E. Krakora, Public Defender, 

attorney; Steven E. Braun, on the brief). 

Leslie-Ann Marshall Justus, Deputy Attorney General, 

argued the cause for respondent (Matthew J. Platkin, 

Attorney General, attorney; Leslie-Ann Marshall 

Justus, of counsel and on the brief). 

NOT FOR PUBLICATION WITHOUT THE 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-3677-21

PER CURIAM 

 Defendant Tenneyson Fairclough appeals from the June 29, 2022, Law 

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

evidentiary hearing. We affirm. 

I.

We glean these facts from the record. On July 10, 2017, defendant was 

charged in a seven-count indictment with two counts of first-degree attempted 

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts one and two); two counts 

of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts three and 

four); second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a) (count five); second-degree unlawful possession of a 

weapon, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4 (count six); and seconddegree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count 

seven). The charges stemmed from defendant firing a gun into a car occupied 

by two of his acquaintances outside a bar in Aberdeen on December 22, 2016. 

One of the victims sustained a gunshot wound and both victims identified 

defendant as the shooter. 
3 A-3677-21

After losing a Wade1 hearing challenging the out-of-court identifications, 

on September 17, 2018, defendant entered a negotiated guilty plea to counts one 

(attempted murder) and six (unlawful possession of a weapon). In exchange, 

the State agreed to dismiss the remaining counts of the indictment and 

recommend an aggregate sentence of twelve years imprisonment, subject to an 

eighty-five percent period of parole ineligibility pursuant to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2.2 

Despite defendant indicating on the plea form that he was a United States 

citizen, prior to sentencing, his attorney confirmed that he was not a United 

States citizen. As a result, defendant moved to withdraw his guilty plea and 

submitted a supporting certification by his attorney averring that defendant's 

mother had been advised by an immigration attorney that "a plea of guilty will 

almost definitely result in [defendant's] deportation." On March 29, 2019, the 

plea judge granted defendant's motion to withdraw his guilty plea with the 

State's consent. 

1

 United States v. Wade, 388 U.S. 218 (1967). 

2

 Defendant was also extended term eligible as a result of which he faced a 

maximum sentencing exposure of life imprisonment if convicted of attempted 

murder at trial. See N.J.S.A. 2C:43-6, -7. 
4 A-3677-21

Thereafter, on May 22, 2019, defendant entered a renegotiated guilty plea 

to counts three (aggravated assault) and six (unlawful possession of a weapon). 

In exchange, the State agreed to recommend an aggregate term of ten years' 

imprisonment, subject to NERA, but defense counsel would request an 

aggregate eight-year NERA term over the State's objection. During the plea 

hearing, the judge thoroughly reviewed the nature of the charges and the terms 

of the plea agreement with defendant, and ensured that defendant had a full 

understanding of the consequences of his plea. Defendant confirmed that he had 

consulted with an immigration attorney, that he was entering the guilty plea with 

the "assum[ption]" that he would be deported, and that he was satisfied with his 

attorney's representation. 

Critically, during the plea colloquy, the following exchange occurred 

between the judge and defendant: 

[COURT]: Okay. I ask you all these questions, and it 

may feel like I'm asking you the same question over and 

over again . . . but I need you to understand that if I 

accept your plea today, I'm not going to give you your 

plea back just because you changed your mind later 

today. Okay? So now is the time to speak. Do you

understand? 

[DEFENDANT]: Yes. 

[COURT]: Okay. And knowing all of that, you still

wish to plead guilty? 
5 A-3677-21

[DEFENDANT]: Yes. 

In providing a factual basis for the plea, defendant responded to his 

attorney's and the court's questions as follows: 

[DEFENSE COUNSEL]: . . . on December 22, 2016 at 

about 9:53 in the evening, were you in Aberdeen, New 

Jersey? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: And were you in the area of 

the Masonic Lodge . . . .? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: And while you were there, at 

some point did you have a gun on your person? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: And you knew that the gun 

that you had was a gun, right? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: Did you have any kind of 

permit to carry a gun? 

[DEFENDANT]: No. 

[DEFENSE COUNSEL]: And so you knew that it was 

not lawful for you to have a gun on your person, is that 

correct? 

[DEFENDANT]: Yes. 
6 A-3677-21

[DEFENSE COUNSEL]: And at some point on 

December 22, 2016, did you take that gun and shoot 

into the car where you knew that a man by the initials 

of J.G. was sitting? 

[DEFENDANT]: Yes. 

[DEFENSE COUNSEL]: And when you shot in the car 

where J.G. was sitting, did you do that because you

were trying to cause him serious bodily harm? 

[DEFENDANT]: Yes. 

. . . . 

[COURT]: All right. And you knew who J.G. was? 

[DEFENDANT]: Yes. 

[COURT]: Okay. And who was he? Can you tell me? 

. . . . 

[DEFENDANT]: Somebody that was at the bar. 

[COURT]: Okay. And . . . so you fired the gun and

you shot him, yes? 

[DEFENDANT]: Yes. 

[COURT]: And you knew that you actually hit him? 

[DEFENDANT]: Yes. 

[COURT]: Okay. And you understand that you caused

him serious bodily injury? 
7 A-3677-21

[DEFENDANT]: Yes. 

[COURT]: And you intended to do that at the time that 

you shot him? 

[DEFENDANT]: Yes. 

After ensuring compliance with Rule 3:9-2, governing the entry of guilty pleas, 

the judge accepted defendant's plea. 

At the sentencing hearing conducted on July 10, 2019, defense counsel 

argued for leniency, asserting that "probably the most serious repercussion to 

[defendant] from this conviction is that he will be deported." Defense counsel 

continued that an immigration attorney had said "it [was] almost 100 percent 

certain that [defendant would] be deported." In acceding to defense counsel's 

request for leniency, the judge weighed heavily "the fact that there [was] certain 

deportation in this case." Accordingly, the judge sentenced defendant to eight 

years' imprisonment, subject to NERA, on the aggravated assault charge, and a 

concurrent five years' imprisonment, with forty-two months of parole 

ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on the weapons 

offense. 

Defendant did not file a direct appeal. However, on August 20, 2021, 

defendant filed a timely PCR petition, which was later supplemented by 

assigned counsel. In his petition, defendant asserted, among other things, that 
8 A-3677-21

his attorney was ineffective by failing to pursue a speedy trial motion and failing 

to object to defendant's inadequate factual basis. Defendant also asserted that 

defense counsel's "cumulative errors" amounted to ineffective assistance of 

counsel (IAC). Additionally, defendant sought to withdraw his guilty plea for a 

second time. 

Following oral argument conducted on June 27, 2022, the PCR judge 

entered an order on June 29, 2022, denying defendant's petition without an 

evidentiary hearing. In an accompanying written decision, the judge reviewed 

the factual background and procedural history of the case, applied the governing 

legal principles, and concluded defendant failed to establish a prima facie claim 

of IAC. 

Specifically, the judge determined defendant failed to show that his 

attorney's performance fell below the objective standard of reasonableness set 

forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our 

Supreme Court in State v. Fritz, 105 N.J. 42, 49-58 (1987). According to the 

judge, "[t]o the contrary, plea counsel did an extraordinary job in ultimately 

negotiating a second plea agreement that permitted defendant to plead to a less 

serious crime and resulted in a sentence that was four years lower than the one 
9 A-3677-21

defendant initially agreed to." The judge also concluded that defendant was not 

entitled to an evidentiary hearing. 

In rejecting defendant's contention that his attorney was ineffective by 

failing to pursue a speedy trial motion, the judge acknowledged that there was a 

thirty-one-month delay between defendant's arrest on December 26, 2016, and 

sentencing on July 10, 2019. However, after applying the factors identified in 

Barker v. Wingo, 407 U.S. 514 (1972), to evaluate a speedy trial claim,3 the 

judge concluded "[d]efendant provide[d] no facts to support his argument that 

had plea counsel filed a motion to dismiss on speedy trial grounds it would have 

been successful." See State v. O'Neal, 190 N.J. 601, 619 (2007) ("It is not 

ineffective assistance of counsel for defense counsel not to file a meritless 

motion . . . ."). 

In support, the judge pointed out that defendant "was responsible for most 

of th[e] delay first, by filing pre-trial motions which required a hearing, then 

entering a guilty plea . . . falsely indicating he was a United States citizen, and 

3

 The four factors identified in Barker "to determine when a delay infringes 

upon a defendant's due process rights" are "the '[l]ength of delay, the reason for 

the delay, the defendant's assertion of his right, and prejudice to the defendant.'" 

State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (alteration in original) 

(quoting Barker, 407 U.S. at 530). Our Supreme Court adopted the Barker test 

in State v. Szima, 70 N.J. 196, 200-01 (1976). 
10 A-3677-21

then moving to withdraw the plea in order to seek advice from an immigration 

attorney." See State v. Gallegan, 117 N.J. 345, 355 (1989) ("Any delay that 

defendant caused or requested would not weigh in favor of finding a speedy trial 

violation." (citing United States v. Loud Hawk, 474 U.S. 302, 316 (1986))). 

Further, the judge noted "there [was] no indication in the record that defendant 

ever asserted a desire for a trial." Additionally, the judge stressed that defendant 

"actually benefitted from the delay" because defendant was ultimately 

"sentenced to eight years, four years less than the original offer defendant 

accepted." 

Turning to defendant's claim that his attorney was ineffective by failing 

to object to an inadequate factual basis, the judge determined the claim lacked 

merit on procedural and substantive grounds. Procedurally, the judge explained 

the claim was "barred as it could have been raised on direct appeal." See State 

v. Peoples, 446 N.J. Super. 245, 254-55 (App. Div. 2016) ("'[A] petitioner may 

be barred from relief if the petitioner could have raised the issue on direct appeal 

but failed to do so, Rule 3:22-4 . . . .'" (alteration in original) (quoting State v. 

Echols, 199 N.J. 344, 357 (2009))). 
11 A-3677-21

Substantively, the judge rejected defendant's claim that his factual basis 

was inadequate "because he answered questions from his counsel and the court 

with 'yes' and 'no' responses," reasoning: 

[T]he use of leading questions is permitted when a 

factual basis for a plea is elicited. State v. Smullen, 118 

N.J. 408 (1990). It is inconsequential that defendant 

did not provide an adequate factual basis in narrative 

form. His answers to questions from his counsel and 

the court were sufficient to establish that he committed 

the charged offense[s]. 

In this ensuing appeal, defendant raises the following points for our 

consideration: 

POINT I – THE PLEA BARGAIN IS INVALID 

BECAUSE IT INCLUDED A PLEA OF GUILTY TO 

N.J.S.A. 2C:39-5[(B)] WHICH IS 

UNCONSTITUTIONALLY OVERBROAD[.] (NOT 

RAISED BELOW). 

POINT II – ASSUMING ARGUENDO THAT N.J.S.A. 

2C:39-5[(B)] IS NOT UNCONSTITUTIONAL ON ITS 

FACE, DEFENDANT'S PLEA OF GUILTY 

NONETHELESS MUST FAIL BECAUSE THE 

FACTUAL BASIS OMITTED ANY QUESTIONS AS 

TO WHETHER DEFENDANT HAD CARRIED THE 

HANDGUN IN QUESTION FOR PURPOSES NOT 

RELATED TO SELF-DEFENSE[.] (NOT RAISED 

BELOW). 

POINT III – N.J.S.A. 2C:39-5[(B)] IS 

UNCONSTITUTIONALLY VAGUE AS APPLIED 

TO DEFENDANT[.] (NOT RAISED BELOW). 
12 A-3677-21

POINT IV – DEFENDANT IS ENTITLED TO AN 

EVIDENTIARY HEARING BECAUSE OF 

INEFFECTIVE ASSISTANCE OF COUNSEL 

REGARDING HER FAILURE TO REQUEST A 

SPEEDY TRIAL. 

POINT V – AS RAISED BY DEFENSE COUNSEL 

PRIOR TO THE PCR HEARING, THE FACTUAL 

BASIS WAS INADEQUATE. 

POINT VI – CUMULATIVE ERRORS BY COUNSEL 

CONSTITUTED INEFFECTIVE ASSISTANCE OF 

COUNSEL (ARGUED BY PCR DEFENSE COUNSEL 

BUT NOT RULED ON BY THE COURT). 

POINT VII – DEFENDANT SHOULD HAVE BEEN 

ALLOWED TO WITHDRAW HIS GUILTY PLEA. 

II. 

In Points I, II, and III, defendant argues for the first time on appeal that 

"his plea bargain is invalid" because N.J.S.A. 2C:39-5(b) is "facially 

unconstitutional," and is "unconstitutionally vague as applied to [him] because 

it required [him] to obtain a carrying permit notwithstanding his right to carry a 

gun for self-defense."4 In support, defendant relies on N.Y. State Rifle & Pistol 

Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022), arguing that inasmuch as 

4

 N.J.S.A. 2C:39-5(b) provides that "[a]ny person who knowingly has in his 

possession any handgun . . . without first having obtained a permit to carry the 

same as provided in [N.J.S.A.] 2C:58-4, is guilty of a crime of the second 

degree." 
13 A-3677-21

"the United States Supreme Court has in effect held N.J.S.A. 2C:39-5[(b)] to be 

unconstitutional because it requires citizens to obtain a carrying permit, a 

requirement not justified by the Second and Fourteenth Amendments, 

defendant's plea bargain cannot stand." Defendant continues that assuming 

N.J.S.A. 2C:39-5(b) is constitutional, his "factual basis nonetheless should have 

included, at a minimum, [self-defense related] questions."5 

We decline to consider defendant's constitutional challenge because it was 

not presented to the PCR judge. "Generally, an appellate court will not consider 

issues, even constitutional ones, which were not raised below." State v. Galicia, 

210 N.J. 364, 383 (2012). As our Supreme Court explained: 

Appellate review is not limitless. The 

jurisdiction of appellate courts rightly is bounded by the 

proofs and objections critically explored on the record 

before the trial court by the parties themselves. . . . In 

short, the points of divergence developed in 

5

 The State counters that although Bruen "struck down" the "'justifiable need'" 

to carry a handgun requirement contained in N.J.S.A. 2C:58-4(d), "it did not 

disturb any other parts of the states' handgun-permitting laws." Thus, according 

to the State, notwithstanding Bruen's holding, disqualifying criteria for certain 

applicants seeking to obtain a handgun carry permit remain in effect and 

defendant was otherwise disqualified from obtaining a permit due to his lengthy 

prior criminal history. Further, the State continues, Bruen did not invalidate 

"the requirement[] . . . that individuals must first obtain a permit before carrying 

firearms in public," a requirement defendant failed to satisfy. (Emphasis added). 

After Bruen was decided, the Legislature amended N.J.S.A. 2C:58-4 in 

December 2022, see L. 2022, c. 131, § 3, but has not amended or supplemented 

N.J.S.A. 2C:39-5(b). 
14 A-3677-21

proceedings before a trial court define the metes and 

bounds of appellate review. 

The reason for that limitation undergirds the very 

structure of our legal traditions. As eloquently 

explained by an experienced and revered appellate 

judge: 

. . . . [O]ur appellate courts step into the 

shoes of the trial judge and view the facts 

and issues as they were presented to him[ 

or her]. 

But there is more than history and 

tradition supporting our adherence to the 

record made below. There is an instinct of 

fairness due both the trial judge . . . and a 

litigant's adversary, a sense that one's 

opponent should have a chance to defend, 

explain, or rebut some challenged ruling 

and that the trial judge should have a clear 

first chance to address the issue. Indeed, if 

appellate courts were to consider some 

unpreserved issues but not others, 

depending on gradations of sympathy, the 

result would be an extremely uneven 

playing field. 

There is also the canny recognition 

that if late-blooming issues were allowed 

to be raised for the first time on appeal, this 

would be an incentive for game-playing by 

counsel, for acquiescing through silence 

when risky rulings are made, and, when 

they can no longer be corrected at the trial 

level, unveiling them as new weapons on 

appeal. Finally, there is an element of 

institutional self-preservation in closing 
15 A-3677-21

the door to what could be a flood of openended appellate opportunities. 

[State v. Robinson, 200 N.J. 1, 19 (2009) (quoting 

Frank M. Coffin, On Appeal: Courts, Lawyering, and 

Judging 84–85 (W.W. Norton & Co. 1994)).]

Following oral argument, the PCR judge issued his written decision on 

June 29, 2022. Bruen was decided on June 23, 2022. Therefore, defendant had 

an opportunity to present his constitutional challenge to the PCR judge prior to 

the issuance of the judge's decision. See Robinson, 200 N.J. at 20 ("'[O]ur 

appellate courts will decline to consider questions or issues not properly 

presented to the trial court when an opportunity for such a presentation is 

available unless the questions so raised on appeal go to the jurisdiction of the 

trial court or concern matters of great public interest.'" (quoting Nieder v. Royal 

Indem. Ins. Co., 62 N.J. 229, 234 (1973))). 

In Points IV, V, and VI, defendant challenges the judge's rejection of his

contentions that his attorney was ineffective by failing to pursue a speedy trial 

motion and object to a purportedly inadequate factual basis. Defendant also 

challenges the judge's denial of his petition without an evidentiary hearing. 

"[W]e review under the abuse of discretion standard the PCR court's 

determination to proceed without an evidentiary hearing." State v. Brewster, 

429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding 
16 A-3677-21

an evidentiary hearing will not aid the court's analysis of whether the defendant 

is entitled to [PCR], . . . then an evidentiary hearing need not be granted." State 

v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). 

An evidentiary hearing is only required when a defendant establishes "a 

prima facie case in support of [PCR]," the court determines that there are 

"material issues of disputed fact that cannot be resolved by reference to the 

existing record," and the court determines that "an evidentiary hearing is 

necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354 

(2013) (alteration in original) (quoting R. 3:22-10(b)). "[W]here . . . no 

evidentiary hearing was conducted," as here, "we may review the factual 

inferences the [trial] court has drawn from the documentary record de novo," 

and "[w]e also review de novo the court's conclusions of law." State v. Blake, 

444 N.J. Super. 285, 294 (App. Div. 2016). 

"To establish a prima facie case, defendant must demonstrate a reasonable 

likelihood that his or her claim, viewing the facts alleged in the light most 

favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

10(b). To establish a prima facie IAC claim, a defendant must demonstrate "by 

a preponderance of the credible evidence," State v. Echols, 199 N.J. 344, 357 

(2009), that his or her attorneys' performance fell below the objective standard 
17 A-3677-21

of reasonableness set forth in Strickland, 466 U.S. at 687, and adopted in Fritz, 

105 N.J. at 49-58, and that the outcome would have been different without the 

purported deficient performance. Stated differently, a defendant must show 

that: (1) counsel's performance was deficient; and (2) the deficient performance 

prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. 

To establish the prejudice prong to set aside a guilty plea based on IAC, a 

defendant must show "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. DiFrisco, 137 N.J. 434, 457 (1994) (alteration 

in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To that end, "'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. 2011) 

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

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

Failure to meet either prong of the two-pronged Strickland/Fritz test 

results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280 

(2012) (citing Echols, 199 N.J. at 358). That said, "courts are permitted leeway 

to choose to examine first whether a defendant has been prejudiced, and if not, 
18 A-3677-21

to dismiss the claim without determining whether counsel's performance was 

constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citation 

omitted) (citing Strickland, 466 U.S. at 697). 

Applying these principles, we discern no abuse of discretion in the PCR 

judge's denial of defendant's PCR petition without an evidentiary hearing, and 

we affirm the denial substantially for the reasons stated in the judge's cogent 

written opinion. Because there were no errors committed by defense counsel, 

defendant's cumulative error claim must fail as well. 

Finally, in Point VII, defendant argues that he should be allowed to 

withdraw his guilty plea for a second time primarily "because he will be 

deported to Jamaica as a result of his plea." Defendant claims "that he was never 

advised that he faced mandatory deportation if he were to plead guilty" and 

asserts that "permitting the withdrawal . . . will remedy the matter." 

Although a motion to withdraw a guilty plea and a petition for PCR based 

on IAC may be filed together, "[t]hey must be considered separately." State v. 

O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014) (citing State v. 

McDonald, 211 N.J. 4, 15-26, 29-30 (2012)). That is because a motion to 

withdraw a guilty plea is governed by Rule 3:21-1 while a petition for PCR is 

governed by Rule 3:22-1 to -13. "[P]ost-sentence [withdrawal] motions are 
19 A-3677-21

subject to the 'manifest injustice' standard in Rule 3:21-1," which places "'a more 

stringent standard'" on the movant to obtain relief. O'Donnell, 435 N.J. Super. 

at 370 (quoting State v. Norman, 405 N.J. Super. 149, 160 (App. Div. 2009)). 

Under that standard, "'the burden rests on defendant, in the first instance, to 

present some plausible basis for his request, and his good faith in asserting a 

defense on the merits.'" Smullen, 118 N.J. at 416 (quoting State v. Huntley, 129 

N.J. Super. 13, 17 (App. Div. 1974)). 

A motion to withdraw a guilty plea is governed by the four-factor test 

established in State v. Slater, 198 N.J. 145 (2009). In evaluating the motion, a 

court must consider and balance: "(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." 

Id. at 157-58. "No factor is mandatory; if one is missing, that does not 

automatically disqualify or dictate relief." Id. at 162. However, "the longer a 

defendant delays in seeking to withdraw a plea, the greater burden he or she will 

bear in establishing 'manifest injustice,' because the prejudice to the State under 

prong four will generally increase. Moreover, a defendant's reasons for delay 
20 A-3677-21

may also weigh against relief under factor two." O'Donnell, 435 N.J. Super. at 

370.

Here, as defendant points out, the PCR judge failed to address the 

withdrawal motion. Ordinarily, we would remand the matter to the trial court 

to remedy the omission. However, under the unique circumstances of this case, 

we reject defendant's request to withdraw his guilty plea for various reasons. 

First, the claim is procedurally barred by Rule 3:22-4 because defendant could 

have raised the issue on direct appeal. In the alternative, we also reject the claim 

on the merits. Without substantiation, defendant invokes his innocence to 

support the first Slater factor and asserts that the case "would not involve much 

preparation on the part of the State" to support the fourth Slater factor. However, 

the crux of defendant's claim is the second Slater factor, his reason for 

withdrawal, which is to avoid deportation. 

Defendant was previously allowed to withdraw his guilty plea because he 

had misrepresented his citizenship status on the plea form. After obtaining 

advice from an immigration attorney and assuring the plea judge that he was 

knowingly, voluntarily, and intelligently pleading guilty under the assumption 

that he would be deported, he now seeks to withdraw his plea a second time for 
21 A-3677-21

the very same reason—to avoid deportation. We cannot abide such 

gamesmanship. 

"Generally, representations made by a defendant at plea hearings 

concerning the voluntariness of the decision to plead, as well as any findings 

made by the trial court when accepting the plea, constitute a 'formidable barrier' 

which defendant must overcome before he will be allowed to withdraw his plea." 

State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 

U.S. 63, 74 (1977)). "That is so because '[s]olemn declarations in open court 

carry a strong presumption of verity.'" Ibid. (alteration in original) (quoting 

Blackledge, 431 U.S. at 74). Defendant has failed to vault this formidable 

barrier. 

Affirmed.