STATE OF NEW JERSEY VS. TERENCE OUSLEY (17-02-0208, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3622-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERENCE OUSLEY,
Defendant-Appellant.
_______________________
Submitted November 9, 2021 – Decided November 19, 2021
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 17-02-0208.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; Shiraz Deen, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Terence Ousley appeals from the Law Division's December 6,
2019 order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
An Ocean County grand jury indicted defendant for first-degree armed
robbery, second-degree burglary, and second-degree aggravated assault.
Defendant subsequently pled guilty to an amended charge of second-degree
conspiracy to commit armed robbery, and the trial court sentenced him to ten
years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a
three-year term of parole supervision upon release.
On direct appeal, defendant challenged the sentence, and we considered
the matter on our Excessive Sentence Oral Argument calendar pursuant to Rule
2:9-11. In an April 11, 2018 order, we affirmed defendant's sentence, and the
Supreme Court denied certification. State v. Ousley, 235 N.J. 186 (2018).
Shortly thereafter, defendant filed a timely PCR petition arguing that his
trial counsel provided ineffective assistance. Defendant's assigned PCR counsel
submitted a brief on defendant's behalf and argued that the trial attorney: (1)
failed to argue at sentencing that the trial court was incorrectly "double
counting" the aggravating factors; and (2) neglected "to file several motions
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prior to [defendant's] plea challenging the identification made by one of the
witnesses."
In further support of the petition, defendant filed a one-page
"supplemental brief" in which he argued that his trial attorney should have
requested a Wade1 hearing. In his submission, defendant asserted he had seen a
DVD of the victim's interview with the police and believed it cast doubt on her
credibility. Defendant further alleged that a police officer gave inaccurate
information about the victim's statement to the grand jury.
Following oral argument, 2 the PCR judge rendered a written decision 3
denying defendant's PCR petition. The judge found that defendant's arguments
about his sentence were raised and rejected on direct appeal, and were
procedurally barred by Rule 3:22-4. The judge further ruled that defendant was
not entitled to a Wade hearing because he failed to "specify any potentially
meritorious challenges to the identification he could have raised."
For the first time on appeal, defendant argues:
1
United States v. Wade, 388 U.S. 218 (1967).
2
In addition to hearing from defendant's attorney, the trial court permitted
defendant to participate on his own behalf at oral argument.
3
In its decision, the court stated it had considered defendant's supplemental
brief.
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THIS MATTER MUST BE REMANDED FOR THE
APPOINTMENT OF NEW PCR COUNSEL AS
SUPPORT WAS NOT PROVIDED FOR ANY OF
THE ARGUMENTS RAISED BY [DEFENDANT] IN
HIS SUPPLEMENTAL BRIEF REGARDING THE
IDENTIFICATIONS MADE BY [THE VICTIM], OR
THE CONTRADICTORY TESTIMONY OF A
POLICE OFFICER AT THE GRAND JURY,
LEAVING THE PCR COURT UNABLE TO
PROPERLY ADDRESS TRIAL COUNSEL'S
FAILURE TO FILE A WADE MOTION. (Not Raised
Below).
Defendant has not supported his newly-minted allegations against his PCR
attorney with a sworn statement "alleg[ing] facts sufficient to demonstrate
counsel's alleged substandard performance." See, e.g., State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Nor has defendant specifically
challenged the PCR judge's findings, and his sole argument on appeal does not
even implicate trial counsel's performance.
Instead, defendant seeks a remand for a new PCR proceeding "so that
[defendant] has a first opportunity to raise his arguments, provide supporting
evidence, and provide the court with [the victim's] DVD statement and the
transcript of the grand jury." For the following reasons, we decline to order such
a remand.
Rule 3:22-6(d) requires PCR counsel to "advance all of the legitimate
arguments requested by the defendant that the record will support," and "[i]f
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[the] defendant insists upon the assertion of any grounds for relief that counsel
deems to be without merit," then PCR counsel must "list such claims in the
petition . . . or incorporate them by reference." The Rule requires PCR counsel
to "communicate with his client," "investigate the claims," and "then . . . 'fashion
the most effective arguments possible.'" State v. Hicks, 411 N.J. Super. 370,
375 (App. Div. 2010) (quoting State v. Rue, 175 N.J. 1, 18 (2002)). If PCR
counsel fails to meet Rule 3:22-6(d)'s requirements, the remedy is a new PCR
proceeding. Id. at 376. Such a new proceeding is predicated solely on the Rule,
not on ineffective assistance of counsel. Ibid.However, we cannot conclude on this record that PCR counsel violated
Rule 3:22-6(d). Defendant has not provided a certification detailing his
interactions with PCR counsel or stating whether they ever met to discuss
defendant's case, and further failed to provide any competent evidence that PCR
counsel did not otherwise communicate with defendant, investigate claims, and
proffer the most effective arguments. See Hicks, 411 N.J. Super. at 375. While
defendant continues to argue that the DVD he viewed of the victim's statement
to the police and the grand jury transcript are critical to his current contentions,
these two items are not part of the appellate record. We therefore cannot find
that a new PCR proceeding is necessary based on a violation of the Rule.
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In sum, defendant's claim that his PCR counsel violated Rule 3:22-6(d) is
founded on facts that exist outside the record on appeal. We express no opinion
on those claims because they must be first raised in an appropriate application
to the trial court. See R. 3:22-4(b)(2)(C) (providing a timely second PCR
petition will not be dismissed if it "alleges a prima facie case of ineffective
assistance of counsel that represented the defendant on the first or subsequent
application for [PCR].").
Affirmed.
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