STATE OF NEW JERSEY VS. LARRY D. WILSON (12-09-2527, CAMDEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1522-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY D. WILSON, JR.,
a/k/a LARRY ROBINSON,
LARRY DARNELL WILSON,
Defendant-Appellant.
_____________________________
Submitted February 11, 2019 – Decided February 22, 2019
Before Judges Haas and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 12-09-2527.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Kevin J. Hein, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Larry Wilson appeals from the April 7, 2017 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
On November 8, 2011, the Camden police responded to a report of shots
fired. When the police arrived at the scene, they observed defendant and two
other men involved in a physical altercation. The men shouted that defendant
had a gun and had shot the victim, who was laying on the ground. The victim
was taken to the hospital, where he was pronounced dead as the result of multiple
gunshot wounds.
Defendant told the police that he and his step-brother got into an
altercation with the victim and the victim's brother. He stated that the victim's
brother "swung" at him, causing defendant's step-brother to run away.
Defendant did not retreat but, instead, swung back. Defendant then drew a
handgun from his sweatshirt and fired two shots at the victim, killing him. After
the shooting, the victim's brother and the other man grabbed defendant. Only
defendant was armed.
A Camden County grand jury subsequently charged defendant in a five-
count indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2)
(count one); second-degree possession of a weapon for an unlawful purpose,
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N.J.S.A. 2C:39-4 (count two); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b) (count three); fourth-degree possession of a defaced
firearm, N.J.S.A. 2C:39-3(d) (count four); and second-degree certain persons
not to have weapons, N.J.S.A. 2C:39-7 (count five).
After several conferences, defendant pled guilty to an amended charge
under count one of first-degree aggravated manslaughter, N.J.S.A. 2C:11-
4(a)(1). In return for defendant's plea, the State agreed to dismiss the other
counts of the indictment, and recommend that defendant be sentenced to a
maximum twenty-two-year prison term, subject to the 85% parole ineligibility
period required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The
judge later sentenced defendant in accordance with the terms of his negotiated
plea to a twenty-two year term, subject to NERA.
Defendant appealed his sentence. We heard the appeal on our Excessive
Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed
defendant's sentence. State v. Wilson, No. A-5495-14 (App. Div. Jan. 12, 2016),
certif. denied, 225 N.J. 340 (2016).
Defendant then filed a timely petition for PCR. In an amended petition,
defendant asserted that his attorney provided him with ineffective assistance
because he (1) "fail[ed] to put forward an intoxication defense"; (2) never
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presented a "defense theory of 'self-defense'"; and (3) allowed defendant to be
sentenced for aggravated manslaughter even though he never admitted to
"recklessly caus[ing the victim's] death under circumstances manifesting
extreme indifference to human life" under N.J.S.A. 2C:11-4(a)(1).
In a thorough written opinion, Judge Steven Polansky considered each of
these contentions and denied defendant's petition. The judge 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 trial counsel's performance
was deficient and that, but for the deficient performance, the result would have
been different.
Judge Polansky determined that defendant's first contention lacked merit
because he did not demonstrate any basis to support an intoxication defense. As
the judge noted, voluntary intoxication is only a defense if it negates an element
of the offense charged. N.J.S.A. 2C:2-8(a). "In order to negate an element of
the offense, the intoxication must be of an extremely high level." State v.
Bauman, 298 N.J. Super. 176, 194 (App. Div. 1997) (internal quotation marks
omitted); see also State v. Cameron, 104 N.J. 42, 54 (1986) (recognizing that
"firmly fixed in our case law is the requirement of 'prostration of faculties' as
the minimum requirement for an intoxication defense"). Thus, a voluntary
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intoxication defense can only succeed "if there exists a 'rational basis for the
conclusion that defendant's "faculties" were so "prostrated" that he or she was
incapable of forming' the requisite intent." Bauman, 298 N.J. Super. at 194
(quoting State v. Mauricio, 117 N.J. 402, 418-19 (1990)). "Among the factors
pertinent to this issue are included the quantity of intoxicant consumed, the
period of time involved, the defendant's ability to recall significant events and
his conduct as perceived by others." State v. Johnson, 309 N.J. Super. 237, 266
(App. Div. 1998).
Here, Judge Polansky found there was insufficient evidence to support an
intoxication defense. In his amended petition, defendant only stated that he "was
drinking and smoking marijuana the day prior to the incident. This was in
combination with me taking Prozac, which I was prescribed due to having
asthma." (emphasis added). Thus, the judge found that defendant did not even
claim that he used any intoxicating substances on the day of the offense. In
addition, defendant "presented no evidence that the combination of marijuana,
alcohol, or Prozac had any intoxicating effect on him the following day when he
shot the victim." Because there was no basis for an intoxication defense under
these facts, the judge concluded that defendant's attorney was not ineffective by
failing to raise it.
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Turning to defendant's second argument, Judge Polansky reached a similar
conclusion, finding that defendant did not supply sufficient grounds to support
a self-defense claim. Pursuant to N.J.S.A. 2C:3-4(a), "the use of force upon or
toward another person is justifiable when the actor reasonably believes that such
force is immediately necessary for the purpose of protecting himself against the
use of unlawful force by such other person on the present occasion." However,
the justification of self-defense is not available when a defendant uses "deadly
force,"1 unless the actor (1) "reasonably believes that such force is necessary to
protect himself against death or serious bodily harm"; (2) did not provoke the
use of force in the same encounter; and (3) cannot retreat or use non-deadly
force. N.J.S.A. 2C:3-4(b)(2)(b).
Here, defendant used deadly force when he shot the victim twice.
According to his own statement to the police, defendant could have easily
retreated from the scene, just as his step-brother did. In addition, none of the
other participants in the altercation were armed. Due to the lack of any basis to
support a self-defense argument, Judge Polansky found that defendant's attorney
1
N.J.A.C. 2C:3-11(b) defines "deadly force" as "force which the actor uses with
the purpose of causing or which he knows to create a substantial risk of causing
death or serious bodily harm."
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was not ineffective for declining to pursue this contention in lieu of assisting
defendant in negotiating a plea agreement to a lesser charge.
Finally, Judge Polansky rejected defendant's contention that the factual
basis he gave at the time of the plea hearing was insufficient to support his
conviction for aggravated manslaughter under N.J.S.A. 2C:11-4(a). Under that
statute, a defendant is guilty of aggravated manslaughter when he or she
"recklessly causes death under circumstances manifesting extreme indifference
to human life[.]" See also State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.
2005) (stating that aggravated manslaughter requires a conscious disregard of
the probability of causing death).
After reviewing the transcript of the plea hearing, the judge found that
defendant provided an ample factual basis supporting his guilt on the aggravated
manslaughter charge. Quoting at length from the transcript, the judge noted that
defendant admitted that he was reckless by firing a gun at the victim and that,
when he fired the shots, "it didn't matter to [defendant] what happened to the
individual who he shot[.]" Therefore, Judge Polansky rejected defendant's
contention on this point. This appeal followed.
On appeal, defendant raises the same three contentions he unsuccessfully
pursued in the Law Division. He argues:
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POINT I
THE [PCR] COURT ERRED IN DENYING . . .
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM PLEA COUNSEL.
A. LEGAL PRINCIPLES.
B. FAILURE OF PLEA COUNSEL TO CONDUCT
AN ADEQUATE INVESTIGATION.
C. FAILURE TO RAISE THE ISSUE THAT
THERE WAS INSUFFICIENT PROOF TO
ESTABLISH AN ESSENTIAL ELEMENT OF
THE CRIME BEYOND A REASONABLE
DOUBT.
D. FAILURE OF PCR COURT TO CONDUCT AN
EVIDENTIARY HEARING.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
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that he [or she] was denied the effective assistance of counsel." 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.
Preciose, 129 N.J. at 462.
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, State v. Fritz, 105 N.J. 42, 52 (1987), the defendant must demonstrate
"how specific errors of counsel undermined the reliability" of the proceeding.
U.S. v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Moreover, such acts or omissions of counsel must amount to more than
mere tactical strategy. Strickland, 466 U.S. at 689. As the Supreme Court
observed in Strickland,
[a] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
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the circumstances, the challenged action "might be
considered sound trial strategy."
[Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).]
Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
for the reasons detailed at length in Judge Polansky's comprehensive written
opinion. In addition, because defendant failed to establish a prima facie case of
ineffective assistance of counsel, the judge was not required to conduct an
evidentiary hearing on defendant's PCR application. Preciose, 129 N.J. at 462.
Affirmed.
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