RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1515-18T3 STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEON ELEXEY, Defendant-Appellant. _________________________ Submitted March 23, 2020 – Decided June 18, 2020 Before Judges Moynihan and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-02-0398. Joseph E. Krakora, Public Defender, attorney for appellant (Illya D. Lichtenberg, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Keon Elexey appeals from the trial court's order denying his post-conviction relief (PCR) petition without an evidentiary hearing arguing: POINT I THE PCR COURT ABUSED ITS DISCRETION BY: 1. DENYING DEFENDAN'TS PCR PETITION AND REFUSING TO HOLD AN EVIDENTIARY HEARING WHEN DEFENDANT ESTABLIHED A PRIMA FACIE CASE THAT HIS TRIAL COUNSEL AFFIRMATIVELY MISLED HIM REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEAS. 2. DENYING AN EVIDENTIARY HEARING IN VIOLATION OF R[ULE] 3:22-10(B). 3. ENGAGING IN SELECTIVE FACT FINDING AND OMITTING MATERIAL FACTS FROM ITS ANALYSIS. POINT II THE TRIAL COURT'S DECISION VIOLATED R[ULE] 3:22-11 WHEN IT ENGAGED IN ADDITIONAL FACT FINDING IN THE LEGAL ANAYLSIS. We disagree and affirm. Following the return of an indictment charging the then-twenty-nine-year old defendant with five counts of second-degree sexual assault, N.J.S.A. 2C:14- A-1515-18T3 2 2(c)(4) (counts one, three, five, seven and nine) and five counts of third -degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts two, four, six, eight and ten) alleging penile-vaginal penetration with a fourteen-year-old victim, defendant pleaded guilty to one count of second-degree sexual assault as amended to allege an act of fellatio. Under the plea agreement, the State recommended that defendant be sentenced in the third-degree range to a three- year prison term; defendant was sentenced in accordance with the plea agreement. Sexual abuse of a minor is an "aggravated felony," 8 U.S.C.A. § 1101(a)(43)(A), and subjected defendant to deportation, 8 U.S.C.A. § 1227(a)(2)(A)(iii). Because the PCR court did not hold an evidentiary hearing, we review de novo both the factual inferences drawn by that court from the record and the court's legal conclusions. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). To establish a PCR claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting ...
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