STATE OF NEW JERSEY VS. LATREY EVANS (15-06-0708 AND 15-04-0563, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0428-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LATREY EVANS,

Defendant-Appellant.
____________________________

Submitted December 11, 2019 – Decided December 18, 2019

Before Judges Haas and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment Nos. 15-04-0563
and 15-06-0708.

Joseph E. Krakora, Public Defender, attorney for
appellant (Elizabeth H. Smith, Designated Counsel, on
the brief).

Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel; Catherine A. Foddai, Legal Assistant, on the
brief).

PER CURIAM
 Defendant Latrey Evans appeals from the August 29, 2018 Law Division

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

evidentiary hearing. We affirm.

On September 13, 2014, defendant stole a car belonging to C.D. 1 Later

that day, defendant stole D.S.'s car after he found it with the engine running near

a convenience store. When D.S. saw defendant in his car, he attempted to get

into it. Defendant pushed D.S. away and drove off.

The police were alerted, and defendant led them on a car chase on the

Garden State Parkway through three different counties. While he was eluding

the police, defendant caused an accident in which A.R., who was a passenger in

another car, was injured. A.R. was taken to the hospital, where she was

prescribed pain medication.

Defendant was stopped at a toll plaza, but he got out of the car and

attempted to flee on foot before the police were able to arrest him.

A Bergen County grand jury returned a one-count indictment, Indictment

No. 15-06-00708-I, charging defendant with third-degree theft of C.D.'s car,

N.J.S.A. 2C:20-3(a). In connection with the second car theft that day, the grand

jury returned Indictment 15-04-00563-I, and charged defendant with second-

1
We use initials to refer to the victims to protect their privacy.
A-0428-18T4
2
degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree eluding, N.J.S.A.

2C:29-2(b) (count two); second-degree aggravated assault for causing A.R to

suffer bodily injury while he was eluding the police, N.J.S.A. 2C:12-1(b)(6)

(count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count

four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five).

On the day before defendant's trial for these offenses was to begin,

defendant agreed to enter an open plea to all of the charges after receiving the

input of the trial judge. 2 Of particular relevance to the issue raised on appeal,

the judge engaged in a lengthy colloquy with defendant concerning the

assistance provided by his attorney concerning the plea, and the factual basis for

it.

During the colloquy, defense counsel confirmed he had obtained

discovery from the State, including A.R.'s "actual medical records" from St.

Joseph's Medical Center. While providing his factual basis for pleading guilty

to causing bodily injury to A.R. in the course of eluding the police, defendant

acknowledged reviewing those medical records with his attorney and that they

2
Pursuant to Rule 3:9-3(c), the judge advised defendant that she planned to
impose no more than an aggregate six-year term, subject to an eighty-five
percent period of parole ineligibility under the No Early Release Act, N.J.S.A.
2C:43-7.2, if he pled guilty to all of the charges.
A-0428-18T4
3
showed A.R. "suffered some bodily injury because she was in pain" and "was

given some sort of pills, painkillers or something of that sort."

The judge determined that defendant had provided an adequate factual

basis for the aggravated assault charge, and for the other offenses included in

the two indictments. She therefore accepted defendant's guilty plea.

The judge subsequently sentenced defendant under Indictment 15-04-

0563 to concurrent six-year terms on counts one, two, and three, to a concurrent

three-year term on count four, and to a concurrent eighteen-month term on count

five. The judge imposed a concurrent three-year term on count one of

Indictment No. 15-06-0708.

Defendant did not file a direct appeal from his conviction and sentence.

However, defendant filed a timely PCR petition in which he alleged, among

other things, that his attorney was ineffective because he failed to review A.R.'s

medical records with him prior to the trial. In a certification submitted with the

assistance of counsel, defendant baldly asserted that because he did not receive

the "medical records of the crash victim," he was unable to prove he "did not

cause serious bodily injury" to her. If he had been given this information,

defendant claimed he would have received a lesser sentence.

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 In a thorough written decision, the judge 3 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 counsel's performance was deficient and

that, but for the deficient performance, the result would have been different. The

judge noted that in order to sustain a finding of guilt on an aggravated assault

charged under N.J.S.A. 2C:12-1(b)(6), the State was not required to prove that

the victim sustained "serious bodily injury" 4 as defendant claimed. Instead, the

State only had to establish that the victim suffered "bodily injury," which is

defined as "physical pain, illness, or any impairment of physical condition."

N.J.S.A. 2C:11-1(a).

Here, defendant acknowledged his attorney reviewed A.R.'s medical

records with him, and that the accident defendant caused resulted in A.R.

suffering pain which required her to take medication. Thus, the judge concluded

that defense counsel was not ineffective and, even if he was, the result would

not have been different because defendant's testimony at the plea hearing

3
This was the same judge who presided at defendant's plea and sentencing
hearings.
4
"'Serious bodily injury' means bodily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11 -
1(b).
A-0428-18T4
5
satisfied the elements of aggravated assault under N.J.S.A. 2C:12-1(b)(6) based

on his admission that he caused bodily injury to the victim. This appeal

followed.

On appeal, defendant presents the following contention:

THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING DEFENDANT'S PETITION FOR [PCR]
AS DEFENDANT HAS MADE A SUFFICIENT
PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF COUNSEL TO WARRANT AN
EVIDENTIARY HEARING. DEFENDANT
ALLEGES HIS COUNSEL WAS INEFFECTIVE FOR
FAILING TO PROVIDE HIM WITH DISCOVERY.
SUCH FAILURE LED TO DEFENDANT'S
DECISION TO PLEAD GUILTY WITHOUT
HAVING FULL AWARENESS OF HIS CASE AND
POTENTIAL DEFENSES PRIOR TO THE PLEA.

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, material issues of disputed facts lie outside the

record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State

v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion. State v. Preciose,

129 N.J. 451, 462 (1992).

A-0428-18T4
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 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) (alteration in
original) (citations omitted) (quoting Strickland, 466
U.S. at 687-88, 694).]

"[I]n order to establish a prima facie claim, [the defendant] must do more

than make bald assertions that he was denied the effective assistance of counsel.

He must allege facts sufficient to demonstrate counsel's alleged substandard

performance." Cummings, 321 N.J. Super. at 170. The defendant must

establish, by a preponderance of the credible evidence, that he is entitled to the

required relief. State v. Nash, 212 N.J. 518, 541 (2013).

A-0428-18T4
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 We have considered defendant's contentions in light of the record and

applicable legal principles and conclude they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm

substantially for the reasons the judge expressed in her thoughtful written

opinion. We discern no abuse of discretion in the denial of defendant's PCR

petition without an evidentiary hearing, as defendant failed to present a prima

facie claim of ineffective assistance of counsel warranting an evidentiary

hearing.

Affirmed.

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