STATE OF NEW JERSEY VS. QUAM M. WILSON (11-07-1334, 12-03-0429, 12-03-0432 AND 12-03-0436, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )


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  •                             NOT FOR PUBLICATION WITHOUT THE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-3808-16T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    QUAM M. WILSON, a/k/a
    WILSON G,
    Defendant-Appellant.
    _________________________________
    Submitted September 24, 2018 – Decided October 12, 2018
    Before Judges Messano and Rose.
    On appeal from Superior Court of New Jersey, Law
    Division, Monmouth County, Indictment Nos. 11-07-
    1334, 12-03-0429, 12-03-0432 and 12-03-0436.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Kevin G. Byrnes, Designated Counsel, on
    the brief).
    Christopher J. Gramiccioni, Monmouth County
    Prosecutor, attorney for respondent (Mary R. Juliano,
    Assistant Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant Quam Wilson appeals from a December 21, 2016 order denying
    his petition for post-conviction relief (PCR) without an evidentiary hearing. We
    affirm.
    I.
    We discern the salient facts and procedural history from the record on
    appeal. Between July 2011 and March 2012, defendant was charged with
    various drug and weapons offenses in multiple counts of four separate
    Monmouth County indictments. On April 9, 2012, pursuant to a negotiated plea
    agreement, defendant pled guilty to one count of each indictment:         count
    nineteen of Indictment No. 11-07-1334 charging him with second-degree certain
    persons not to have a firearm (certain persons), N.J.S.A. 2C:39-7(b)(1); count
    two of Indictment No. 12-03-0429, charging him with third-degree possession
    of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3); count three of
    Indictment No. 12-03-0432, charging him with third-degree distribution of
    heroin, N.J.S.A. 2C:35-5(b)(3); and count one of Indictment No. 12-03-0436,
    charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-
    5(10)(a)(1). The State agreed to recommend a seven-year term of imprisonment
    with five years of parole ineligibility, pursuant to N.J.S.A. 2C:39-7(b)(1), on
    A-3808-16T4
    2
    count nineteen to run concurrently with five-year concurrent terms of
    imprisonment on each of the drug counts. The State also agreed to dismiss the
    remaining counts of each indictment.
    Represented by assigned counsel at the plea proceeding, defendant
    testified he was pleading guilty of his own free will, he was satisfied with his
    attorney's services, he understood he had a right to trial and he was waiving that
    right. Defendant provided a separate factual basis for each of his guilty pleas.
    Pertinent to this appeal, regarding the certain persons offense, defendant
    admitted he placed a gun in his bedroom "[i]n between [his] clothes[,]" having
    been previously convicted of burglary in 2011.
    Prior to sentencing before a different judge, defendant retained private
    counsel who filed a motion to withdraw defendant's guilty plea pursuant to State
    v. Slater, 
    198 N.J. 145
     (2009) (Slater motion).    In essence, defendant claimed
    he was not guilty of the certain persons offense because the gun belonged to his
    godmother. Defendant also asserted that he was coerced to plead guilty because
    the police told him that if he did not admit ownership of the weapon, "his
    [g]odmother would lose her children . . . to protective services."       He also
    claimed plea counsel did not file motions to suppress evidence and his
    statements because she thought the motions lacked merit. Finally, defendant
    A-3808-16T4
    3
    claimed plea counsel did not provide him with discovery pertaining to his
    conversations with the police. Defendant did not challenge his guilty pleas to
    the three drug offenses.
    In a thorough, well-reasoned oral decision, the motion judge analyzed the
    Slater factors and denied the motion. Relevant here, the judge found:
    [Defendant] does not provide any facts which
    would support a conclusion that he was misadvised by
    his attorney or that would provide a basis to conclude
    such motions, if filed and heard, would have resulted in
    the suppression of any evidence or statements.
    In fact, other than making clear that he and his
    attorney discussed the merits of filing of such motions,
    he does not offer any direct argument or assertion that
    he's entitled to a withdrawal of his plea because his
    attorney held such an opinion regarding the motions or
    communicated the opinion to him.
    He does not provide any facts or argument that
    his attorney's advice regarding the motions was
    incorrect. He does not provide any facts or argument
    that such possible motions had substantive merit or
    would have been granted or would have made any
    difference in his decision to enter his pleas of guilty.
    Again, his limited recitation of the facts related
    to those possible motions simply confirms that he and
    his attorney discussed the motions, and that it was his
    attorney's opinion that such motions lack merit and as a
    result the motions were not filed.
    Most simply stated with regard to Mr. Wilson's
    reference to those possible motions, his certification
    A-3808-16T4
    4
    and legal argument asserted in his counsel's brief do not
    address any of the factors set forth in Slater as they
    might relate to those motions. With regard to his
    reference to those possible motions, Mr. Wilson simply
    fails to meet his burden of demonstrating that there is
    anything about them which would support his request
    to withdraw his guilty plea.
    After he denied defendant's motion, the judge imposed the sentence
    recommended by the State.
    Defendant filed a direct appeal, seeking a remand for evidentiary hearings
    regarding his motion to withdraw his guilty plea and a reweighing of the
    aggravating and mitigating sentencing factors. He also sought additional jail
    credits pursuant to State v. Hernandez, 
    208 N.J. 24
     (2011). An excessive
    sentencing panel affirmed his judgment and sentence, but remanded to the trial
    court to award additional jail credits on Indictment No. 11-07-1334.     State v.
    Wilson, No. A-4490-12 (App. Div. Jan. 14, 2014). Defendant did not petition
    the Supreme Court for certification.
    Defendant then filed a pro se PCR petition, alleging ineffective assistance
    of his plea counsel on several grounds: "failure to vigorously pursue and attain
    a favorable plea bargain"; "failure to disclose co-defendants['] plea agreement";
    "failure to vigorously pursue a drug program"; and failure to move to suppress
    evidence regarding the certain persons offense. Defendant subsequently filed
    A-3808-16T4
    5
    an amended petition, with the assistance of appointed PCR counsel, claiming
    that his plea counsel and private counsel were ineffective in failing to provide
    him with discovery and failing to conduct a "a sufficient pre-trial investigation."
    Defendant also renewed the claim he advanced in his Slater motion, i.e., that
    plea counsel pressured him to plead guilty because he was concerned his
    godmother's children would be removed from her custody if he did not admit
    ownership of the gun seized from his bedroom.
    Following oral argument on December 21, 2016, the PCR judge denied
    defendant's petition in a comprehensive oral decision. In doing so, the PCR
    judge reviewed defendant's plea colloquy and the claims he asserted in his Slater
    motion. The judge also set forth the legal authority pertaining to PCR petitions,
    and applied that authority to defendant's contentions.
    Initially, the judge determined most of defendant's claims against plea
    counsel were procedurally barred because they were "essentially the same
    claims raised in defendant's motion to withdraw his plea."1 Citing Rule 3:22-3,
    which provides that "PCR is not a substitute for a direct appeal," the judge
    
    1 R. 3
    :22-4. Although it is unclear from our January 14, 2014 order affirming
    the trial court's judgment, during oral argument at his excessive sentencing
    appeal, defendant sought a remand regarding the denial of his Slater motion.
    Nonetheless, we have considered defendant's arguments on the merits, here, as
    did the PCR judge.
    A-3808-16T4
    6
    further found defendant "could have appealed the denial of the motion to
    withdraw his guilty plea to the Appellate Division but failed to do so."
    Nonetheless, the PCR judge considered, in great detail, the merits of
    defendant's claims against plea counsel and private counsel. In particular the
    judge recognized defendant "failed to present any competent evidence[] . . . that
    his attorneys performed deficiently or that he suffered legal prejudice from
    counsel's alleged unreasonable acts or omission." She then addressed each of
    defendant's claims.
    For example, the PCR judge found plea counsel's failure to file motions
    to suppress evidence and defendant's statement "comport[ed] with [counsel's]
    sound and effective trial strategy." Defendant "failed to articulate any facts to
    substantiate his claim that [plea counsel] should have filed these motions." The
    PCR judge also reiterated the motion judge's findings set forth above, noting
    defendant's claims concerning coercion were "previously litigated in the context
    of the motion to withdraw his [guilty] plea." Nonetheless, the PCR judge found
    defendant's claims lacked merit because defendant would have been exposed to
    a lengthy prison sentence had he exercised his right to trial on the certain persons
    charge.
    A-3808-16T4
    7
    Noting the gun was seized pursuant to a search warrant, and finding
    defendant failed to articulate any facts that would demonstrate his motion s
    would have been successful, the PCR judge found:
    Even in the context of an ineffective assistance of
    counsel claim, a defendant still bears the burden of
    demonstrating that his Fourth Amendment claim is
    meritorious, [State v.] Goodwin, . . . 173 N.J. [583,] 597
    [(2002)], State v. Fisher, 
    156 N.J. 494
    , 501 (1988). See
    also Kimmelman v. Morrison, 
    477 U.S. 365
    , 384
    (1986). "Failure to file a suppression motion does not
    constitute per se ineffective assistance of counsel."
    Rather, the judge concluded "defendant's bald assertion[s] of innocence are in
    direct conflict with [his] sworn statement to [the plea judge]" generally
    acknowledging his guilt and specifically indicating the gun was seized from his
    bedroom, and "he put it there."
    Further, the PCR judge determined defendant did not present any support
    for his claim that counsel was ineffective for failing to seek a drug program for
    defendant. In particular, defendant did not provide proof that he was qualified
    for a drug program or that such a program was available. However, the judge
    recognized defendant could petition the court for a change in custodial sentence
    after he completes his mandatory term of parole ineligibility. 2 The PCR judge
    
    2 R. 3
    :21-10(b)(1).
    A-3808-16T4
    8
    also found the record belied defendant's contention that plea counsel "reviewed
    discovery with [him]."
    Finally, the PCR judge found defendant's bald assertions neither
    established a prima facie case of ineffective assistance of counsel nor a
    likelihood of success on the merits.       Accordingly, the judge exercised her
    discretion pursuant to Rule 3:22-10 and denied defendant's request for a hearing.
    This appeal followed.
    On appeal, defendant raises the following points for our consideration :
    POINT I
    THE DEFENDANT WAS DENIED EFFECTIVE
    ASSISTANCE OF COUNSEL AS GUARANTEED
    BY THE SIXTH AMENDMENT TO THE UNITED
    STATES CONSTITUTION AND ART[ICLE I],
    PAR[AGRAPH] 10 OF THE NEW JERSEY
    CONSTITUTION.
    A. The Trial Attorneys Failed to Provide the Defendant
    with a Complete Defense.
    B. The Plea Agreement is Null and Void Because the
    Defendant Was Pressured To Enter a Guilty Plea
    without Having Sufficient Knowledge About the Facts
    of His Case.
    POINT II
    THE DEFENDANT IS ENTITLED                     TO     AN
    EVIDENTIARY HEARING.
    A-3808-16T4
    9
    POINT III
    PROCEDURAL BARS DO NOT APPLY.
    II.
    "Post-conviction relief is New Jersey's analogue to the federal writ of
    habeas corpus." State v. Preciose, 
    129 N.J. 451
    , 459 (1992). Pursuant to Rule
    3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was
    a "[s]ubstantial denial in the conviction proceedings of defendant's rights under
    the Constitution of the United States or the Constitution or laws of the State of
    New Jersey."
    "[A] defendant asserting ineffective assistance of counsel on PCR bears
    the burden of proving his or her right to relief by a preponderance of the
    evidence." State v. Gaitan, 
    209 N.J. 339
    , 350 (2012). A defendant must prove
    counsel's performance was deficient; it must be demonstrated that counsel' s
    handling of the matter "fell below an objective standard of reasonableness" and
    that "counsel made errors so serious that counsel was not functioning as the
    'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v.
    Washington, 
    466 U.S. 668
    , 687-88 (1984); State v. Fritz, 
    105 N.J. 42
    , 52 (1987)
    (adopting the Strickland two-part test in New Jersey).
    A-3808-16T4
    10
    A defendant must also prove counsel's "deficient performance prejudiced
    the defense." Strickland, 
    466 U.S. at 687
    . Prejudice is established by showing
    a "reasonable probability that, but for counsel's unprofessional errors, the result
    of the proceeding would have been different." 
    Id. at 694
    . Thus, petitioner must
    establish that counsel's performance was deficient and petitioner suffered
    prejudice in order to obtain a reversal of the challenged conviction. 
    Id. at 687
    ;
    Fritz, 
    105 N.J. at 52
    .
    Further, 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. See Preciose,
    
    129 N.J. at 462
    . We review any legal conclusions of the trial court de novo.
    State v. Nash, 
    212 N.J. 518
    , 540-41 (2013); State v. Harris, 
    181 N.J. 391
    , 419
    (2004).
    A-3808-16T4
    11
    While, as noted, we disagree with the PCR judge that defendant's claims
    were barred procedurally, the judge astutely rejected defendant's claims on the
    merits, giving due deference to counsel's strategy.      Here, that strategy was
    specifically designed to limit defendant's sentencing exposure by obtaining a
    favorable plea agreement encompassing four open indictments, including
    weapons and drug offenses. As the PCR judge recounted, there was ample
    evidence in the record that counsel negotiated a plea agreement that was
    reasonable in light of defendant's sentencing exposure for the certain persons
    offense. Indeed, plea counsel successfully negotiated for that sentence to run
    concurrently to three separate drug counts in three different indictments.
    We are satisfied from our review of the record that defendant failed to
    demonstrate a prima facie showing of ineffectiveness of counsel under the
    Strickland/Fritz test. We therefore discern no abuse of discretion in the denial
    of defendant's PCR petition, and affirm primarily for the reasons set forth in the
    PCR judge's well-reasoned opinion.          The judge correctly concluded an
    evidentiary hearing was not warranted. See Preciose, 
    129 N.J. at 462-63
    .
    Affirmed.
    A-3808-16T4
    12