STATE OF NEW JERSEY VS. JAMES WHEELER (16-03-0380, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5380-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES WHEELER, a/k/a
COOFIE, KOOFY, and
JAMES E. WHEELER,
Defendant-Appellant.
_________________________
Submitted December 8, 2020 – Decided December 21, 2020
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-03-0380.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Ednin D. Martinez, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant James Wheeler appeals from the Law Division's April 18, 2019
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm in part, reverse in part, and remand for further
proceedings.
In March 2016, a Hudson County grand jury returned a thirty-two count
indictment charging defendant in eight of the counts with first degree murder,
N.J.S.A. 2C:11-3(a)(l) and (2) (count one); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(l) (counts two and three);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts
four and five); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count
six); second-degree conspiracy, N.J.S.A. 2C:5-2 (count thirteen); and third-
degree hindering, N.J.S.A. 2C:29-3(a)(3) (count fourteen).
On January 9, 2018, defendant pled guilty to an amended charge of first -
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), under count one. On
March 23, 2018, a judge sentenced defendant in accordance with the terms of
his negotiated plea agreement to sixteen years in prison, subject to an 85%
period of parole ineligibility pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
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In imposing the sixteen-year sentence recommended in the plea
agreement, the judge applied aggravating factor two. As set forth in N.J.S.A.
2C:44-1(a)(2), a sentencing judge should consider:
[t]he gravity and seriousness of harm inflicted on the
victim, including whether or not the defendant knew or
reasonably should have known that the victim of the
offense was particularly vulnerable or incapable of
resistance due to advanced age, ill-health, or extreme
youth, or was for any other reason substantially
incapable of exercising normal physical or mental
power of resistance[.]
Here, defendant admitted during his plea colloquy that he indiscriminately
fired several shots on the street where there was a crowd. The victim was struck
and killed while he was working on his car. The judge accepted the State's
contention at sentencing that aggravating factor two applied. The judge found
that the victim "was particularly vulnerable because he was working on his car.
He was not armed, he was just going about his business. As innocent a bystander
as you can be." Defendant did not file a direct appeal from his conviction or
sentence.
In August 2018, defendant filed a timely petition for PCR. In the
certification he filed in support of this application, defendant asserted that his
plea counsel was ineffective because she did not provide him with sufficient
assistance in connection with his plea. After defendant was assigned PCR
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counsel, he filed a second certification in which he alleged that his plea counsel
provided ineffective assistance to him at the time of sentencing because she did
not oppose the prosecutor's request that the sentencing judge apply aggravating
factor two, N.J.S.A. 2C:44-1(a)(2), in determining his sentence. Defendant
alleged that this factor was not applicable to him under the facts of this case and,
if the judge had not considered it, he might have received a sentence below the
sixteen-year term set forth in the plea agreement.
Defendant's PCR attorney filed a certification of his own in which he
alleged, without having any first-hand knowledge, that defendant's plea counsel
successfully negotiated an agreement with the prosecutor under which the State
would recommend a ten-year term, subject to NERA, at the time of sentencing.
However, the PCR attorney claimed that defendant's plea counsel did not advise
defendant of this agreement. As a result, defendant was forced to later agree to
the sixteen-year term.
Defendant's attorney based this claim upon some notes he found in the
plea attorney's file. One of the handwritten notes states that on June 19, 2017,
the attorney met with the prosecutor. At that time, the prosecutor was proposing
that defendant agree to a thirty-year sentence without parole. The note states
that the attorney countered with a seven-year sentence, which the prosecutor
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stated "wouldn't fly" with the prosecutor's office. The attorney wrote, "Client
indicated he'd take [ten] years" and she proposed a ten-year term to the
prosecutor. The note then states, "AP Zuppa said he'd take it"; however, there
is no period at the end of this phrase. Thus, it is not clear whether the assistant
prosecutor had agreed to "take" the offer, or whether the note was unfinished
and defendant's attorney was merely indicating that the prosecutor would "take"
the offer to his superiors for review, consistent with her earlier notation that a
low offer like this "wouldn't fly."
Typewritten notes attached to the handwritten document state that on
September 18, 2017, the attorneys discussed the status of plea negotiations with
the judge. At that time, the prosecutor was still offering thirty years without the
possibility of parole and had told defendant's attorney that her proposal for a
ten-year sentence was "too low." The note states that defense counsel conveyed
this information to defendant, who stated he would not accept anything beyond
ten years.
As defendant's PCR attorney conceded in his own certification, "[t]here is
nothing contained in the file that explains or sheds any light on the notes, nor
[was the attorney] aware of any other information of any kind that would explain
or elucidate them." Defendant did not submit a certification from his plea
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counsel and did not even provide a certification of his own in support of his
claim that he was not kept advised of the status of the plea negotiations.
Under these circumstances, the PCR judge rejected defendant's contention
that he was entitled to an evidentiary hearing on the question of whether
defendant's plea attorney failed to communicate a favorable ten-year proposal
from the State. The judge found that defendant failed to present any competent
evidence to support his allegation that the prosecutor agreed to a ten-year
sentence or that his own attorney hid this information from defendan t.
Turning to defendant's argument that his attorney was ineffective by
failing to object to the application of aggravating factor two at sentencing, the
judge agreed with defendant that this factor should not have been applied in this
case. Defendant admitted that he indiscriminately fired his gun into the vicinity
of the crowd without regard to the possibility that someone might be killed.
Thus, the victim was not any more vulnerable to harm than anyone else in the
group that was on the street at that time and, therefore, aggravating factor two
was inapplicable.
However, even though defendant was raising an ineffective assistance of
counsel claim, which is usually reserved for PCR proceedings rather than being
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cognizable on a direct appeal, 1 the judge determined that defendant should have
raised this issue in a direct appeal of his sentence. In so ruling, the judge relied
upon Rule 3:22-4, which states that "[a]ny ground for relief not raised in the
proceedings resulting in the conviction . . . , or in any appeal taken in any such
proceedings is barred from assertion in a [PCR] proceeding" unless certain
exceptions apply. 2 This appeal followed.
On appeal, defendant raises the following contentions:
POINT ONE
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING PLEA
COUNSEL'S FAILURE TO COMMUNICATE A
FAVORABLE PLEA OFFER TO HER CLIENT.
POINT TWO
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING PLEA
COUNSEL'S FAILURE TO OBJECT TO THE TRIAL
COURT DOUBLE COUNTING AN ELEMENT OF
THE OFFENSE AS AN AGGRAVATING FACTOR.
1
See, e.g., State v. Preciose, 129 N.J. 451, 459-60 (1992) (noting that our
Supreme Court has expressed a preference for resolving ineffective assistance
of counsel claims on collateral review).
2
One of these exceptions is Rule 3:22-4(a)(1) which permits a PCR court to
consider the matter if "the ground for relief not previously asserted could not
reasonably have been raised in any prior proceeding . . . ."
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Turning first to Point I, defendant argues he was entitled to an evidentiary
hearing based upon his PCR attorney's speculative claim that his plea attorney
failed to communicate a favorable plea offer to him. We disagree.
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
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.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant 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
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fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,
105 N.J. 42, 58 (1987). The United States Supreme Court has extended these
principles to a criminal defense attorney's representation of an accused in
connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63
(2012); Missouri v. Frye, 566 U.S. 134, 143-44 (2012).
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, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific
errors of counsel undermined the reliability" of the proceeding. United States
v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Applying these standards, we are satisfied that defendant's claim that his
plea counsel negotiated, but did not advise him of, a ten-year proposed sentence
lacks merit. This allegation is based entirely upon defendant's PCR attorney's
second-hand interpretation of the plea attorney's notes. However, defendant did
not provide a certification from the plea attorney corroborating this
interpretation. Defendant also did not provide a certification of his own in
support of his claim that he received no information from his attorney
concerning the plea negotiations.
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A defendant is obliged to establish the right to PCR by a preponderance
of the evidence. Preciose, 129 N.J. at 459. The court must consider the
defendant's "contentions indulgently and view the facts asserted by him in the
light most favorable to him." Cummings, 321 N.J. Super. at 170. However, a
defendant must present facts "supported by affidavits or certifications based
upon the personal knowledge of the affiant or the person making the
certification." Ibid.Here, defendant's petition is unsupported by cognizable evidence.
Defendant presented no first-hand certification from himself or his plea counsel
attesting to the facts alleged by his PCR attorney, who had no personal
knowledge of anything that transpired during the plea negotiations. Thus,
defendant's contention concerning the existence of an undisclosed plea
agreement is a classic "bald assertion" that did not warrant an evidentiary
hearing or PCR relief. Ibid.In Point II, defendant argues that his plea attorney was ineffective because
she did not argue against the application of aggravating factor two at the time of
sentencing. We agree.
As the State now concedes, and as the PCR judge recognized, aggravating
factor two was not applicable to the circumstances of this case. The victim's
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death was a serious tragedy, but the fact that the victim died as a result of
defendant's actions was a required element of the offense of first -degree
aggravated manslaughter. In addition, the fact that defendant was working on
his car at the time defendant shot into the street did not mean that defendant
"knew or reasonably should have known that the victim of the offense was
particularly vulnerable or incapable of resistance due to advanced age, ill-health,
or extreme youth, or was for any other reason substantially incapable of
exercising normal physical or mental power of resistance" as required by
N.J.S.A. 2C:44-1(a)(2).
We disagree with the PCR judge's determination that defendant's
contention that his attorney was ineffective was barred under Rule 3:22-4. As
noted above, ineffective assistance of counsel arguments raised on direct appeal
are almost always deferred until the PCR proceeding. Preciose, 129 N.J. at 459-
60. In view of the State's candid concession that aggravating factor two does
not apply, we conclude that a resentencing is required in the interest of justice.
Accordingly, we remand this matter to the trial court for resentencing
without consideration of aggravating factor two. Nothing within this opinion
forecasts any views on the length of the sentence the court should impose on
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remand. We say no more than that the sentence must be determined after the
consideration of all applicable aggravating and mitigating factors.
Affirmed in part; reversed in part; and remanded. We do not retain
jurisdiction.
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