NOT FOR PUBLICATION WITHOUT THE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-3139-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ELMAN MARROQUIN,

     Defendant-Appellant.
_______________________

                   Submitted October 6, 2020 – Decided December 28, 2020

                   Before Judges Mawla and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 16-05-
                   0284.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John J. Bannon, Designated Counsel, on the
                   brief).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Amanda Frankel, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Elman Marroquin appeals from an October 5, 2018 order

denying his petition for post-conviction relief (PCR) following an evidentiary

hearing and his motion to withdraw his guilty plea. He also appeals from a

December 20, 2018 order denying his motion for reconsideration.

        Defendant claims his trial counsel was constitutionally ineffective

because he failed to: 1) discuss with him all available defenses; 2) review the

State's discovery with him; 3) warn about his maximum sentencing exposure,

including the immigration consequence of any plea; and 4) advise that he could

accept pretrial intervention (PTI), or proceed to trial in lieu of his plea deal.

Defendant also moved to vacate his plea primarily contending that it was neither

voluntary nor knowing as he failed to provide a sufficient factual basis to support

the charges. We disagree with all of these arguments and affirm.

                                        I.

        Defendant was arrested after he got into a drunken altercation with his

brother and pulled out a box cutter.         After the fight was interrupted by a

bystander, responding officers arrived and asked defendant to drop the box

cutter but he did not immediately comply. Defendant was arrested and charged

with:    1) third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); 2) third-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);


                                                                           A-3139-18T4
                                        2
and 3) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He

was also issued a summons for resisting arrest, N.J.S.A. 2C:29-2(a)(1), a

disorderly persons offense.

      Defendant applied for admission into the PTI program, a request that was

initially recommended and not opposed by the State. As a condition of his

admission to PTI, however, defendant was required to plead guilty to the

charges. Although defendant completed the necessary plea forms, he did not

plead guilty at the scheduled plea hearing. Instead, he maintained his innocence

and requested the opportunity to consult with an immigration attorney.

      After defendant spoke with an immigration attorney, he resubmitted his

plea forms and pled guilty to amended charges of: 1) simple assault, N.J.S.A.

2C:12-1(a)(3); 2) disorderly conduct, N.J.S.A. 2C:33-2(a)(1); 3) fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and 4) resisting arrest,

N.J.S.A. 2C:29-2(a).

      At the plea hearing, defendant admitted his guilt and no longer claimed he

was innocent of the charges. He also stated that he was entering the plea

voluntarily and that nobody "pressure[d him], coerce[d him], or place[d him]

under duress, or und[ue] influence."




                                                                         A-3139-18T4
                                       3
     In addition, the following colloquy occurred regarding the immigration

consequences of defendant's plea:

           COURT: Do you understand that as a result of your
           guilty plea that you are substantially likely to be
           deported?

           DEFENDANT: Yes.

           COURT: This court, as a state court, has no[] authority
           over immigration matters.

           DEFENDANT: I understand that.

           COURT: It will be up to [f]ederal immigration
           authorities to decide whether or not you should be
           deported, after you have a hearing.

           DEFENDANT: I understand that.

           COURT: Have you had an opportunity to speak with
           an immigration attorney, or do you wish to do so, prior
           to completing your guilty plea here today?

           DEFENDANT: I've spoken to one already.

           COURT: Therefore, you're ready to proceed at this
           time with your guilty plea, after you had the
           opportunity to already speak with an immigration
           lawyer, is that correct?

           DEFENDANT: Yes.

           COURT: While I do not know what, if any, action will
           be taken by the immigration authorities, any defendant
           who pleads in front of this court is always told that you


                                                                       A-3139-18T4
                                      4
            should assume that you will be deported as a result of
            your plea. Do you understand that warning, sir?

            DEFENDANT: Yes.

      With regard to the factual basis for defendant's plea, defendant's counsel

and the court elicited the following facts:

            [TRIAL COUNSEL]: . . . [O]n April 7th, 2016[,] at
            approximately 11 p.m. were you in possession of an
            item that's depicted in the photograph marked as
            Exhibit D-1, that's here before you?

            DEFENDANT: Yes.

            [TRIAL COUNSEL]: And this photograph D-1 depicts
            a utility knife that you normally carried with you for
            work purposes?

            DEFENDANT: Yes.

            [TRIAL COUNSEL]: And at approximately 11 p.m. on
            April 7, 2016[,] you were in possession of that utility
            knife not for work purposes, is that correct?

            DEFENDANT: Yes.

            [TRIAL COUNSEL]: On the evening that we just
            mentioned did you have an argument with the victim at
            16 Clairmont Road in Bernardsville at the time we just
            described?

            DEFENDANT: Yes.

            [TRIAL COUNSEL]: At that time did you intend to
            frighten or scare the victim in this case?


                                                                        A-3139-18T4
                                        5
            DEFENDANT: I was trying to frighten him, yes.

            [TRIAL COUNSEL]: At that time, and at that place,
            did you cause a disturbance by having an argument with
            the victim?

            DEFENDANT: Yes.

            [TRIAL COUNSEL]: And at some point the police
            came, is that correct?

            DEFENDANT: Correct.

            [TRIAL COUNSEL]: And after the police came they
            requested that you approach them and you did not
            immediately comply, is that correct?

            DEFENDANT: Correct.

                  ....

            COURT: . . . Mr. Marroquin, did you in the course of
            an argument with the victim on April 7th, 2016, in
            Bernardsville, . . . hold up a box cutter in a manner that
            you put the victim in fear of imminent serious bodily
            injury?

                  ....

            DEFENDANT: Yes.1

1
   We note that the transcript reveals that the interpreter initially incorrectly
translated the court's question as to whether defendant put his brother in fear of
imminent serious bodily injury by using the Spanish word for death. We are
satisfied that the interpreter, upon immediate request from the court and trial
counsel, rectified this mistake and posed the appropriate question to defendant.
In this regard, the interpreter's statement, "I will rectify for the record," was
followed by defendant's affirmative response.
                                                                          A-3139-18T4
                                        6
      Defendant was sentenced to two years of probation, community service,

and ordered to participate in substance abuse, anger management and

psychological evaluations, and complete any recommended treatment. He was

credited with 204 days of jail credit and immediately released from custody.

Upon his release, defendant was detained by United States Immigration and

Customs Enforcement (ICE) representatives and eventually deported to

Guatemala.

      Defendant never filed a direct appeal of his convictions or sentence.

While in ICE's custody, defendant filed an initial and amended PCR petition

which was supplemented by a supporting brief by appointed PCR counsel.

Defendant alleged his counsel was constitutionally ineffective under Strickland

v. Washington, 

466 U.S. 668

, 686 (1984), and State v. Fritz, 

105 N.J. 42

, 58

(1987), based on the four separate bases previously noted. Defendant also filed

a motion to vacate his plea.

      In a June 5, 2018 order, the PCR court granted defendant's request for an

evidentiary hearing. The PCR court found that a limited hearing was necessary

to further assess whether the advice counsel gave defendant regarding the

immigration consequences of his plea "was negated by conversations that




                                                                       A-3139-18T4
                                      7
occurred off the record" and whether trial counsel "pressured" defendant to take

the plea agreement.

      On October 5, 2018, the PCR court denied defendant's PCR petition and

his motion to withdraw his guilty plea. In a corresponding written opinion, the

PCR court specifically rejected defendant's ineffective assistance of counsel

claim based on counsel's alleged failure to warn about the immigration

consequences of his plea. It "critically" found that defendant testified that he

"was informed by immigration counsel that he would be deported if he accepted

the plea deal, that he was fully aware of the immigration consequences of the

plea, he understood that he would be deported if he accepted the plea, and that

he decided to accept the plea nonetheless."         As a result, the court found

"[defendant] was not given misleading advice about . . . deportation."

      The PCR court also found the factual basis for defendant's plea was

sufficient and noted that the plea colloquy established defendant "was in

possession of a utility knife and used it in a manner to cause the victim to fear

imminent    bodily    injury."     Further,   the    PCR    court   found     "[t]he

circumstances . . . make it apparent that [d]efendant knew he was being

arrested" and thus satisfied the elements of the resisting arrest charge.




                                                                            A-3139-18T4
                                        8
      The court also concluded at the time of defendant's plea he "ha[d] not

made a colorable claim of innocence."      Finally, the PCR court noted that

defendant "gave sworn testimony that he was entering a free and voluntary plea"

and concluded defendant did not establish that he was "misled or coerced into

taking the plea deal."

      Defendant filed a motion for reconsideration relying on State v. Vasco,

456 N.J. Super. 382

(2017), rev'd on dissent, 

235 N.J. 365

(2018), which the

Supreme Court decided shortly after the PCR court's October 5, 2018 decision.

The court denied the motion after hearing oral arguments in a December 20,

2018 order and corresponding opinion.      The PCR court found defendant's

"reliance on [Vasco] misplaced as [defendant] did admit to the circumstances

necessary to establish his guilt," which went "far beyond the defendant in

Vasco."

      On appeal, defendant argues:

            POINT I

            BECAUSE        DEFENDANT      RECEIVED
            INEFFECTIVE ASSISTANCE OF COUNSEL, THE
            PCR COURT ERRED IN DENYING DEFENDANT'S
            PETITION FOR PCR.

            A.     [LEGAL    STANDARDS   GOVERNING
                   APPLICATIONS FOR POST-CONVICTION
                   RELIEF.

                                                                       A-3139-18T4
                                      9
            B.    TRIAL COUNSEL FAILED TO ADVISE MR.
                  MARROQUIN OF HIS DEFENSES, FAILED
                  TO REVIEW DISCOVERY WITH MR.
                  MARROQUIN,      MISINFORMED    MR.
                  MARROQUIN      OF   HIS   MAXIMUM
                  EXPOSURE    IF    CONVICTED,  AND
                  INAPPROPRIATELY      ADVISED   MR.
                  MARROQUIN TO PLEAD GUILTY RATHER
                  THAN ACCEPTING PTI OR PROCEEDING
                  TO TRIAL].

            POINT II

            BECAUSE DEFENDANT DID NOT MAKE A
            KNOWING, INTELLIGENT, AND VOLUNTARY
            PLEA, THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PETITION FOR PCR.

            A.    [LEGAL    STANDARDS   GOVERNING
                  APPLICATIONS FOR POST-CONVICTION
                  RELIEF.

            B.    DEFENDANT DID NOT MAKE A KNOWING,
                  INTELLIGENT, AND VOLUNTARY GUILTY
                  PLEA WITH A SUFFICIENT FACTUAL
                  BASIS].

                                     II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Pierre, 

223 N.J. 560

, 576 (2015) (quoting State v.

Preciose, 

129 N.J. 451

, 459 (1992)). It serves as a safeguard to ensure that a




                                                                       A-3139-18T4
                                     10
criminal defendant was not unfairly convicted and is the "last line of defense

against a miscarriage of justice." State v. Nash, 

212 N.J. 518

, 526 (2013).

      Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its

review of live witness testimony." 

Nash, 212 N.J. at 540

. Where an evidentiary

hearing has been held, we should not disturb "the PCR court's findings that are

supported by sufficient credible evidence in the record." 

Pierre, 223 N.J. at 576

(citations omitted). We review any legal conclusions of the trial court de novo.

Nash, 212 N.J. at 540

-41; State v. Harris, 

181 N.J. 391

, 419 (2004).

      As relevant here, one ground for post-conviction relief asks whether there

has been a "[s]ubstantial denial in the conviction proceedings of defendant's

rights under the Constitution of the United States or the [c]onstitution or laws

of the State of New Jersey." R. 3:22-2(a). A criminal defendant's right to

counsel, under the Sixth Amendment of the United States Constitution and

article I, paragraph 10 of the New Jersey Constitution, includes the right to

adequate legal advice. 

Strickland, 466 U.S. at 686

; 

Fritz, 105 N.J. at 58

.

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a


                                                                         A-3139-18T4
                                      11
fair trial. 

Strickland, 466 U.S. at 687

; 

Fritz, 105 N.J. at 58

. The United States

Supreme Court has extended these principles to a criminal defense attorney's

representation of an accused in connection with a plea negotiation. Lafler v.

Cooper, 

566 U.S. 156

, 162-63 (2012); Missouri v. Frye, 

566 U.S. 134

, 143-44

(2012).

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." 

Strickland, 466 U.S. at 690

. Further, because prejudice is not

presumed, 

Fritz, 105 N.J. at 52

, the defendant must demonstrate "how specific

errors of counsel undermined the reliability" of the proceeding. United States

v. Cronic, 

466 U.S. 648

, 659 n.26 (1984).

      In order to establish the Strickland prejudice prong to set aside a guilty

plea based on ineffective assistance of counsel, a defendant must also show

"there is a reasonable probability that, but for counsel's errors, [defendant]

would not have pled guilty and would have insisted on going to trial." State v.

DiFrisco, 

137 N.J. 434

, 457 (1994) (quoting Hill v. Lockhart, 

474 U.S. 52

, 59

(1985)). Moreover, "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.


                                                                         A-3139-18T4
                                      12
2011) (quoting Padilla v. Kentucky, 

559 U.S. 356

, 372 (2010)).                That

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

Ibid. As noted, defendant

points to four separate errors committed by his trial

counsel that deprived him of his Sixth Amendment rights, "if not individually,

then cumulatively." We discuss each claim separately and conclude defendant

failed to satisfy either the performance or prejudice prong of the Strickland test.

      A.    Failure to discuss defenses.

      Defendant argues that his trial counsel was constitutionally deficient

because he never discussed all available defenses with him.          Specifically,

defendant contends discovery supported viable claims that he: 1) acted in self-

defense; 2) did not possess the requisite criminal intent based on his

intoxication; and 3) was in lawful possession of the boxcutter. In support,

defendant points to his testimony before the PCR court and his statements to the

police that his brother "broke [some beer] bottles and then . . . pushed [defendant

a] couple times." Defendant also claims a bystander "came from nowhere" and

threw him against a dumpster. Defendant argues these facts created a cognizable

claim of self-defense because he pulled out the box cutter to defend against his

drunken brother's actions and from an unknown assailant. We reject defendant's

arguments for two reasons.


                                                                           A-3139-18T4
                                       13
      First, at the evidentiary hearing, defendant's trial counsel testified that he

discussed with defendant his alleged "innocen[ce]" and "possible defenses" and

decided to assert a "factual defense." Counsel further explained that he intended

to focus on the fact that the box cutter "was not a deadly weapon that [defendant]

was holding. That he had no intent. That it wasn't used in any of the incidents

as alleged." We glean from the court's denial of defendant's petition that it

rejected defendant's testimony and credited that of his trial counsel.

      Second, we conclude trial counsel's strategic decision to ultimately plead

guilty exhibited "reasonable professional judgement." 

Strickland, 466 U.S. at 690

. As the PCR court noted, defendant "fail[ed] to establish a colorable claim

of self-defense." Indeed, use of the box cutter to put defendant's brother in fear

of serious bodily injury was a disproportionate response to the altercation. See

N.J.S.A. 2C:3-4.

      B.    Failure to review discovery.

      With respect to counsel's alleged failure to review discovery with him,

defendant specifically claims that his trial counsel "never reviewed [the audio

of his brother]'s statement to the police with him."2 Defendant asserts that the


2
  Several weeks after defendant was arrested, the police conducted an interview
of his brother in Spanish. This interview was summarized in English in the


                                                                            A-3139-18T4
                                       14
paper discovery was not an "honest narrative of the statement of [his brother]"

because it was "inaccurate, misleading, and self-serving."

      During the evidentiary hearing, however, trial counsel stated he did

review all necessary discovery materials with defendant but that he was unable

to play any audio recording for defendant because he was not permitted to bring

his laptop to the jail where defendant was incarcerated. While trial counsel

admitted to not translating the brother's statement to the police from Spanish to

English, he did review with defendant the prosecutor's "paper discovery," which

would have included the report from the State summarizing his brother's

statement.

      Moreover, we note there is no material conflict between the summary in

the investigation report and the translation of the brother's statement to the

police in the record. While defendant's brother started the interview by denying

the presence of a box cutter, he then recanted that statement at the end of the

interview and stated defendant did possess the box cutter and that it was pointed

at his throat.

      C.     Failure to advise about sentencing exposure.


prosecutor's investigation report.      The audio recording was eventually
transcribed into English for purposes of defendant's PCR petition and was
available in the record for our review.
                                                                         A-3139-18T4
                                      15
      Defendant also asserts his trial counsel failed to inform him of his

maximum sentencing exposure if convicted, including "the collateral

immigration consequences." Defendant specifically argues that trial counsel

"failed in his obligation to explain the matter [of deportation] to [defendant] t o

the extent reasonably necessary to permit him to make informed decisions." See

State v. Nuñez-Valdéz, 

200 N.J. 129

, 140-43 (2009) (holding counsel is

ineffective where advice given to a defendant regarding the removal

consequences of a guilty plea is "false," or "inaccurate" and affirmatively

"misleading").

      As noted, the PCR court concluded "[defendant] was not given misleading

advice about . . . deportation." This finding was fully supported by sufficient

credible evidence in the record, particularly the colloquy from the plea hearing.

See 

Pierre, 223 N.J. at 576

. Indeed, defendant admitted to speaking with an

immigration attorney and that she answered all his questions.          The record

establishes that defendant was warned multiple times that deportation was

substantially likely to occur based on his plea.

      D.    Failure to advise regarding PTI and ability to proceed to trial.

      Defendant's claim that his trial counsel failed to advise him regarding the

availability of the PTI program or his ability to proceed to trial is also belied by


                                                                            A-3139-18T4
                                        16
the record. Indeed, defendant was fully aware of the option of entering the PTI

program as it was discussed at the first plea hearing, which did not conclude as

defendant initially proclaimed his innocence and requested to speak with

immigration counsel.

      In sum, we conclude defendant has failed to satisfy either the performance

or prejudice prong under Strickland for all four of his ineffective assistance of

counsel claims. Further, defendant has failed to show it would have been

rational to forego his guilty plea and proceed to trial under the circumstances.

Maldon, 422 N.J. Super. at 486

.

                                       III.

      In his second argument, defendant claims that the court should have

granted his petition and vacated his entire plea due to his failure to provide an

adequate factual basis for the unlawful possession of a weapon and resisting

arrest charges. Defendant also claims the court committed error when it denied

his request to vacate his plea under State v. Slater, 

198 N.J. 145

, 150 (2009).

We disagree with these arguments.

      Where, as here, the application to withdraw a guilty plea is made after

sentencing, a defendant must demonstrate that a "manifest injustice" occurred.

Slater, 198 N.J. at 158

(citing R. 3:21-1). "[E]fforts to withdraw a plea after


                                                                         A-3139-18T4
                                      17
sentencing must be substantiated by strong, compelling reasons."

Id. at 160.

Courts considering post-sentencing motions apply "a more stringent standard"

and "weigh[] more heavily the State's interest in finality." State v. McQuaid,

147 N.J. 464

, 487 (1997). Moreover, "[i]n the PCR context, to obtain relief from

a conviction following a plea, 'a petitioner must convince the court that a

decision to reject the plea bargain would have been rational under the

circumstances.'" State v. O'Donnell, 

435 N.J. Super. 351

, 371 (App. Div. 2014)

(quoting 

Padilla, 559 U.S. at 372

).

        In Slater, the Supreme Court delineated a four-factor balancing test to

guide courts in exercising their discretion to set aside guilty pleas. 3

Id. at 157- 58.

The Court in State v. Tate, however, instructed "when the issue is solely

whether an adequate factual basis supports a guilty plea, a Slater analysis is

unnecessary." 

220 N.J. 393

, 404 (2015) (citations omitted). Such an issue is


3
    These factors are:

              (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.

              

[Slater, 198 N.J. at 150

.]


                                                                            A-3139-18T4
                                           18
reviewed de novo, because "[a]n appellate court is in the same position as the

trial court in assessing whether the factual admissions during a plea colloquy

satisfy the essential elements of an offense."

Ibid. In recognition of

a defendant's constitutional
            protections, when he or she decides to plead guilty and
            waive the right to a trial, the court "must be convinced
            that (1) the defendant has provided an adequate factual
            basis for the plea; (2) the plea is made voluntarily; and
            (3) the plea is made knowingly."

            [State v. Gregory, 

220 N.J. 413

, 418 (2015) (quoting
            State v. Lipa, 

219 N.J. 323

, 331 (2014)); see also R.
            3:9-2.]

The factual basis for the plea can be established in either of two ways:

"defendant may either explicitly admit guilt with respect to the elements or may

'acknowledge[] . . . [underlying] facts constituting the essential elements of the

crime.'" State v. Campfield, 

213 N.J. 218

, 231 (2013) (citation omitted); see

also 

Gregory, 220 N.J. at 419-20

. As the Supreme Court stated in State v. Sainz,

107 N.J. 283

, 292 (1987), "[t]he essential thing is that the defendant is in fact

guilty of the crime for which he is being sentenced."

      A factual basis for unlawful possession of a weapon exists when: 1) there

is a weapon; 2) that defendant possessed knowingly; and 3) "under

circumstances not manifestly appropriate for such lawful uses." N.J.S.A. 2C:39-

5(d). Circumstances that are not manifestly appropriate include a threat of harm

                                                                          A-3139-18T4
                                       19
to persons. State ex rel. G.C., 

179 N.J. 475

, 480-81 (2004). Additionally, a

factual basis for resisting arrest exists when: 1) there was a law enforcement

officer; 2) effecting an arrest; 3) that defendant knew or had reason to know that

the officer was effecting an arrest; and 4) defendant "purposely prevent[ed]" the

officer from effecting the arrest. N.J.S.A. 2C:29-2(a); see also State v. Simms,

369 N.J. Super. 466

, 470 (App. Div. 2004).

      Here, defendant stated in his plea colloquy that it was his voluntary

decision to enter the plea agreement, he was guilty of the charges, and nobody

pressured, coerced, or placed him under duress or undue influence. Further,

defendant admitted to facts that established a factual basis for a conviction of

unlawful possession of a weapon. In the plea colloquy, defendant stated he was

carrying a box cutter and that he was "in [its] possession . . . not for work

purposes." Defendant also admitted he used the box cutter to "put [his brother]

in fear of imminent serious bodily injury." These are circumstances that are not

"manifestly appropriate for such lawful uses." See N.J.S.A. 2C:39-5(d).

      Defendant relies on State v. Blain, 

221 N.J. Super. 66

, 70 (App. Div.

1987), State v. Riley, 

306 N.J. Super. 141

, 143-45 (App. Div. 1997), and 

Vasco, 456 N.J. Super. at 395

(Espinosa, J., dissenting), for the proposition that mere

possession of a weapon is not sufficient to support a factual basis for unlawful


                                                                          A-3139-18T4
                                       20
possession. Unlike these cases, and as noted, defendant admitted to facts that

show circumstances "not manifestly appropriate for such lawful uses" by using

the box cutter to threaten his brother.

      We also conclude defendant provided a sufficient factual basis for the

resisting arrest charges. Defendant admitted during his plea colloquy that the

police arrived because of a fight with his brother and that "[the police] requested

that [he] approach them and [that he] did not immediately comply."

      Further, we consider the plea colloquy as a whole. See 

Gregory, 220 N.J. at 420

(holding courts may look at "surrounding circumstances" from

"stipulations and facts admitted or adopted by the defendant" (citations

omitted)). In this regard, defendant possessed the box cutter when the officers

arrived and admitted he failed to comply with their ensuing instructions after

intentionally using the box cutter to threaten his brother. We can infer from

these facts that defendant had reason to know the officers arrived to effectuate

an arrest. See, e.g., State v. Branch, 

301 N.J. Super. 307

, 321 (App. Div. 1997)

(noting "[t]he failure to announce that defendant was under arrest would only be




                                                                           A-3139-18T4
                                          21
one factor to be considered in the overall sequence of events leading to " a

resisting arrest charge), rev'd on other grounds, 

155 N.J. 317

, 319 (1998). 4

      Defendant's reliance on State v. Ashley, 

443 N.J. Super. 10

, 22-23 (App.

Div. 2015), is misplaced.     Unlike the defendant in Ashley who sought to

withdraw his plea on direct appeal, defendant seeks relief by way of a PCR

petition, which requires defendant to show a substantial denial of his

constitutional or legal rights. R. 3:22-2(a); see also 

O’Donnell, 435 N.J. Super. at 368-73

(reviewing distinctions between motion to withdraw plea and petition

for PCR). Here, defendant did not assert a claim of innocence contemporaneous

to his plea, and we conclude his conviction does not constitute a deprivation of

his constitutional rights under the circumstances presented.

      Finally, defendant argues even if we find he provided a sufficient factual

basis, the PCR court erred in refusing to vacate his plea under the Slater factors.



4
   We observe that defendant relies on 

Vasco, 456 N.J. Super. at 395

(Espinosa,
J., dissenting), for the proposition that a court reviewing a plea colloquy may
not rely on information outside of the facts elicited at the plea hearing. In his
merits brief, however, defendant inconsistently relies on the responding officers'
investigation reports. These reports indicate defendant refused to put down the
box cutter after a responding officer pointed a gun at him and defendant started
to approach the officer. The reports also indicate defendant pulled away from
officers when they attempted to handcuff him. As we have concluded that the
plea colloquy provided a sufficient factual basis, we have not considered these
reports in our analysis.
                                                                           A-3139-18T4
                                       22
After balancing all four of the Slater factors, we determine under this record that

defendant has not met his burden of substantiating his request with "strong,

compelling reasons." 

Slater, 198 N.J. at 160

. Defendant has not shown that the

denial of his motion was manifestly unjust, overcoming the "formidable barrier"

created by the acceptance of his guilty plea.

Id. at 156

(quoting Blackledge v.

Allison, 

431 U.S. 63

, 74 (1977)).

      To the extent we have not addressed any of defendant's remaining

arguments, it is because we have determined they are without sufficient merit to

warrant discussion in a written decision. R. 2:11-3(e)(2).

      Affirmed.




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