STATE OF NEW JERSEY VS. BRANDON SEGAR (12-02-0302, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-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
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 POST-
CONVICTION 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.
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