STATE OF NEW JERSEY VS. JAHMEZ R. WALKER (13-07-0651 AND 14-10-0912, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-1347-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAHMEZ R. WALKER,
Defendant-Appellant.
________________________
Submitted November 4, 2021 – Decided November 17, 2021
Before Judges Alvarez and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Nos. 13-07-0651
and 14-10-0912.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jahmez Walker appeals from the September 4, 2018 Law
Division order denying his petition for post-conviction relief (PCR) following
an evidentiary hearing. We affirm.
In two separate indictments, Passaic County grand juries charged
defendant with, among other offenses, fourth-degree criminal sexual contact,
N.J.S.A. 2C:14-2(c), and second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4).
On April 23, 2015, defendant pled guilty in return for the State's agreement to
recommend that he be sentenced to time served, parole supervision for life, and
mandatory Megan's Law registration requirements.
At the plea hearing, defendant provided a factual basis to the charge of
fourth-degree criminal sexual contact, admitting he touched the breasts of a
fifteen-year-old girl against her will for his own sexual gratification. Defendant
also testified that he was guilty of second-degree criminal assault because he
had intercourse with a fourteen-year-old girl at a time when he was almost
nineteen years old.
During his plea colloquy, defendant further testified that he: understood
the nature of the charges against him; was pleading guilty because he was guilty;
wished to waive his right to a trial; was satisfied with the services of his attorney;
and had enough time to confer with his attorney.
A-1347-18
2
Thereafter, the trial judge sentenced defendant in accordance with the
terms of his negotiated plea agreement to time served, 1 parole supervision for
life, and mandatory Megan's Law registration requirements. The judge also
advised defendant that he had forty-five days to appeal his conviction and
sentence, and five years to file a petition for PCR.
Defendant did not file a direct appeal. However, he filed a timely petition
for PCR on September 29, 2017. In an affidavit accompanying his petition,
defendant alleged his trial counsel was ineffective because the attorney forced
1
We note that the trial judge imposed a time-served sentence on defendant for
the charge of second-degree sexual assault charge under N.J.S.A. 2C:14-2(c)(4).
This sentence was not in accord with the Criminal Code. At the time of
sentencing, defendant had 628 days of jail credit for this offense. However,
N.J.S.A. 2C:43-6(a)(2) states that "a person who has been convicted of a
[second-degree] crime may be sentenced . . . for a specific term which shall be
fixed by the court and shall be between five years and [ten] years[.]" Although
N.J.S.A. 2C:44-1(f)(2) states that a judge may sentence a person convicted of a
second-degree offense "to a term appropriate to a crime of one degree lower than
that for which the defendant was convicted[,]" that exception only applies if the
judge "is clearly convinced that the mitigating factors substantially outweigh
the aggravating factors and where the interest of justice demands[.]" Here, the
judge did not make these required findings and, in any event, the sentence fo r a
third-degree offense "shall be between three years and five years[.]" N.J.S.A.
2C:43-6(a)(3). Thus, the time-served sentence of 628 days was improper.
However, we further note that defendant has served the custodial portion of his
sentence and the parties have not challenged the sentence on appeal. Under
these circumstances, we take no action concerning the length of the custodial
sentence, but remind trial courts, prosecutors, and defense counsel of the need
in future cases to structure plea agreements that meet the requirements of the
Criminal Code.
A-1347-18
3
defendant to accept the plea without advising him of the "personal
consequences." Subsequently, defendant certified his attorney did not: provide
him with all of the discovery in the file; "discuss [the] case in detail with [him]";
or "properly advise[ him] as to the plea itself."
The trial judge conducted an evidentiary hearing on defendant's petition.
Defendant did not testify at the hearing and stated during a voir dire by his PCR
attorney that he wished to rely on the allegations he raised in his certification.
The State called defendant's trial attorney, Michael J. Montanari, Esq.,
who refuted defendant's claim that he never provided discovery by producing a
copy of a letter he sent to defendant forwarding the discovery materials to him.
Montanari also submitted letters he sent to the jail scheduling at least two
appointments to meet with defendant in order to discuss the case. Montanari
testified he likely met with defendant on additional occasions when he was at
the jail to speak to other clients.
Montanari reviewed the completed plea form with defendant, and denied
the claim he forced defendant to agree to the plea. Montanari testified he did
not remember all of the "specifics about the facts of the case[,]" and did not
recall whether there was any DNA evidence in the file. However, Montanari
stated he had never refused a client's request to take a case to trial.
A-1347-18
4
Following the hearing, the judge rendered a written decision denying
defendant's petition for PCR. Based upon Montanari's credible testimony, the
judge found that Montanari "provided more than sufficient legal assistance [to
defendant] in this case." The judge explained:
Defense counsel met with [defendant] multiple times
and followed his normal practice of sharing discovery
with criminal defendant clients. Counsel also
negotiated a favorable deal for [defendant] who was
facing a potential sentence of eleven and a half years of
incarceration and $25,000 in fines. Additionally,
[defendant's] argument that he was not advised of the
consequences of accepting the plea agreement are
belied by the plea form he went over with . . . Montanari
and his statements made on the record. Defense
counsel and this court explained the exposure and
consequences of the plea agreement to which
[defendant] responded that he understood. []
Additionally, the consequences of taking a plea were
outlined on the plea form[] [and defendant]
acknowledged he went over each and every question on
the plea form with his attorney.
On appeal, defendant raises the following contention:
POINT ONE
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR] AS
ADDITIONAL TESTIMONY IS NEEDED
REGARDING MANY OF THE ISSUES RAISED,
SUCH AS THE SUBSTANCE OF THE LEGAL
ADVICE GIVEN TO [DEFENDANT],
SPECIFICALLY REGARDING HIS
UNDERSTANDING OF THE PENAL
A-1347-18
5
CONSEQUENCES OF HIS GUILTY PLEA, AND
WHAT DISCOVERY WAS MISSING AND ON
WHAT INDICTMENT. TESTIMONY IS ALSO
NEEDED REGARDING HOW [DEFENDANT] FELT
PRESSURED TO PLEAD GUILTY. (NOT RAISED
BELOW).
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).
To establish a prima facie claim of ineffective assistance of counsel, the
defendant must 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). Under the first prong of this test, the defendant must
demonstrate that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Fritz, 105 N.J. at 58 (quoting Strickland, 446 U.S. at 687). Under the second
prong, the defendant must show "that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable." Ibid.
A-1347-18
6
(quoting Strickland, 466 U.S. at 687). That is, "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 60-61 (quoting Strickland, 446 U.S. at 694).
There is a strong presumption that counsel "rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment." Strickland, 446 U.S. at 690. Further, because prejudice is not
presumed, Fritz, 105 N.J. at 52, a defendant must demonstrate with "reasonable
probability" that the result would have been different had he received proper
advice from his trial attorney. Strickland, 466 U.S. at 694.
Where, as here, the judge conducts an evidentiary hearing, we must
uphold the judge's factual findings, "'so long as those findings are supported by
sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424,
440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we
defer to a trial judge's findings that are "substantially influenced by [the trial
judge's] opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." Ibid. (alteration in original)
(quoting Robinson, 200 N.J. at 15).
A-1347-18
7
On appeal, defendant argues he should be given another opportunity to
demonstrate the validity of his claims at a new hearing. However, he provides
no basis for granting him a second bite at the proverbial apple.
As stated above, the burden of proof in a PCR proceeding rests upon
defendant. Here, defendant presented a certification in support of his claims but
refused the opportunity to expand upon his allegations at the evidentiary
hearing.
Montanari produced documentation that he sent all the discovery in the
file to defendant, and met with him on at least two occasions at the
jail. Montanari reviewed the plea form with defendant and explained it to
him. Contrary to his present claims, defendant testified at the plea hearing that
he understood the nature of the charges he faced, conferred with Montanari, and
wished to waive his right to trial. He also provided a factual basis for each
offense.
Under these circumstances, defendant's claims are mere "bald assertions"
that the trial judge properly found insufficient to satisfy defendant's burden of
proof. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)
(holding that the defendant "must do more than make bald assertions that he was
denied the effective assistance of counsel.").
A-1347-18
8
Affirmed.
A-1347-18
9