STATE OF NEW JERSEY VS. DORELLE R. WALLACE (12-02-0255 AND 12-02-0259, 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NOT FOR PUBLICATION WITHOUT THE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-2242-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DORELLE R. WALLACE, a/k/a
DURELL RASHAN WALLACE,
and DOROLLE RASHAN
WALLACE,
Defendant-Appellant.
_____________________________
Submitted October 2, 2019 – Decided October 8, 2019
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment Nos. 12-02-0255
and 12-02-0259.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Nancy Philion Scharff,
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from an August 11, 2017 order denying his petition for
post-conviction relief (PCR). Defendant maintains that his plea counsel
rendered ineffective assistance. He also adds – for the first time – that PCR
counsel was ineffective. Judge Gwendolyn Blue entered the order and rendered
a thorough oral opinion.
On appeal, defendant raises the following points:
POINT I
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING WHERE HE
ESTABLISHED A PRIMA FACIE CASE OF
INEFFECTIVE ASSITANCE OF COUNSEL IN THE
FAILURE OF COUNSEL TO CALL DEFENDANT
TO TESTIFY AT THE MIRANDA HEARING IN
SUPPORT OF HIS CONTENTION THAT HIS
CONFESSION WAS COERCED.
POINT II
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING WHERE HE
ESTABLISHED [A] PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL DUE
TO COUNSEL'S FAILURE TO ANALYZE
EVIDENCE REGARDING OUT-OF-COURT
IDENTIFICATION.
A-2242-17T2
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In his pro se brief, defendant adds the following contentions, which we
have renumbered:
POINT III
TRIAL COUNSEL'S FAILURE TO INFORM
DEFENDANT OF MATERIAL EVIDENCE CAUSED
DEFENDANT TO REJECT A MORE FAVORABLE
PLEA OFFER.
POINT IV
DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING.
POINT V
DEFENDANT WAS DEPRIVED OF THE
EFFECTIVE ASSISTANCE OF PCR COUNSEL.
(NOT RAISED BELOW).
We conclude that these arguments lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set
forth by Judge Blue in her well-reasoned oral decision, and add the following
brief remarks.
A defendant is entitled to an evidentiary hearing only when he "has
presented a prima facie [case] in support of [PCR]," State v. Marshall, 148 N.J.
89, 158 (1997) (first alteration in original) (quoting State v. Preciose, 129 N.J.
451, 462 (1992)), meaning that a "defendant must demonstrate a reasonable
A-2242-17T2
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likelihood that his . . . claim will ultimately succeed on the merits." Ibid. For a
defendant to obtain relief based on ineffective assistance grounds, he 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 fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the Strickland two-part test in New Jersey, now known as
the Strickland/Fritz test).
Defendant has failed to satisfy both Strickland prongs. We addressed
defendant's Miranda argument on his direct appeal. We were unwilling to
second-guess plea counsel's strategic decision not to call defendant as a witness
at the Miranda hearing. See State v. Williams, No. A-0767-13 (App. Div. Apr.
7, 2016) (slip op. at 13). The PCR judge acknowledged that this court addressed
defendant's Miranda argument on defendant's direct appeal. Further, the PCR
judge found that even if counsel made a mistake, defendant did not establish the
requisite prejudice because he failed to show that the motion judge would have
suppressed his statement.
Both the United States Supreme Court and the New Jersey Supreme Court
have extended the Strickland test to challenges of guilty pleas based on
ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. 156, 162-63
A-2242-17T2
4
(2012); Missouri v. Frye, 566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J.
434, 456-57 (1994). Defendant must demonstrate with "reasonable probability"
that the result would have been different had he received proper advice fro m his
attorney. Lafler, 566 U.S. at 163 (quoting Strickland, 466 U.S. at 694).
Here, defendant faced charges under two separate indictments. 1 One
indictment charged defendant with eight counts of first-degree armed robbery
and seven counts of first-degree kidnapping.2 Defendant faced life in prison on
the robbery and kidnapping charges alone. Moreover, defendant confessed to
both robberies, and his co-defendant, who also pled guilty, implicated defendant
on the first robbery. Pertaining to the first robbery, three witnesses identified
defendant in photo arrays. Defendant pled guilty to both robberies, and the State
agreed to dismiss all other charges. In exchange for the plea agreement,
defendant received an aggregate prison term of twenty-five years subject to the
No Early Release Act, N.J.S.A. 2C:43-7.2. Thus, defendant failed to
1
In the two indictments, defendant was charged with committing twenty-eight
offenses.
2
In that indictment, the State also charged defendant with one count of second-
degree unlawful possession of a weapon, one count of second-degree possession
of a weapon for an unlawful purpose, three counts of third-degree aggravated
assault, one count of third-degree terroristic threats, one count of second-degree
conspiracy to commit first-degree armed robbery, and two counts of second-
degree conspiracy to commit first-degree kidnapping.
A-2242-17T2
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demonstrate with "reasonable probability" that the result would have been
different had he received proper advice from plea counsel.
For the first time, defendant argues that his PCR counsel rendered
ineffective assistance. We examine the performance of PCR under a different
standard than the standard applicable to trial or plea counsel. In that regard, the
Supreme Court has stated:
PCR counsel must communicate with the client,
investigate the claims urged by the client, and
determine whether there are additional claims that
should be brought forward. Thereafter, counsel should
advance all of the legitimate arguments that the record
will support. If after investigation counsel can
formulate no fair legal argument in support of a
particular claim raised by defendant, no argument need
be made on that point. Stated differently, the brief must
advance the arguments that can be made in support of
the petition and include defendant's remaining claims,
either by listing them or incorporating them by
reference so that the judge may consider them.
[State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR
proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing
State v. Rue, 175 N.J. 1, 4 (2002)). And "[t]his relief is not predicated upon a
finding of ineffective assistance of counsel under the relevant constitutional
standard. Rule 3:22-6(d) imposes an independent standard of professional
A-2242-17T2
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conduct upon an attorney representing a defendant in a PCR proceeding." Ibid.
(citations omitted). PCR counsel is not required to bolster claims raised by a
defendant that are without foundation, but rather, only those that the record
supports. See Webster, 187 N.J. at 257.
Here, defendant argues that PCR counsel did not advise him to submit a
certification or affidavit. Defendant asserts that he would have submitted a
certification stating that he would have accepted an earlier plea deal had he
known that three witnesses identified him in one of the robberies. But defendant
failed to raise this contention before the PCR judge and, therefore, we decline
to consider it here. State v. Robinson, 200 N.J. 1, 19 (2009); see also Neider v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). To the extent defendant
contends PCR counsel was deficient in not properly advancing any claim, we
conclude such matters are better considered in a second PCR petition. See R.
3:22-12(a)(B)(C).
Affirmed.
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