STATE OF NEW JERSEY VS. WENDELL FLEETWOOD (06-04-1479, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4342-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WENDELL FLEETWOOD,
Defendant-Appellant.
________________________________
Submitted August 1, 2018 – Decided August 7, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
06-04-1479.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Wendell Fleetwood appeals from the May 8, 2017 Law
Division order denying his petition for post-conviction relief
(PCR), including his application to withdraw his guilty pleas,
without an evidentiary hearing. We affirm because defendant’s
petition is time barred under Rule 3:22-12(a)(1), and otherwise
lacks merit.
On August 10, 2005, defendant sold an undercover officer two
bags of heroin for twenty dollars. After a short foot pursuit,
officers arrested defendant; a search incident to his arrest
revealed no other contraband. A grand jury indicted defendant for
third-degree possession of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to
distribute CDS, N.J.S.A. 2C:35-5(a)(1)/2C:35-5(b)(3); third-
degree possession of CDS with intent to distribute within 1000
feet from a school, N.J.S.A. 2C:35-7; and second-degree certain
locations, N.J.S.A. 2C:357.1/2C:35-5. His trial ended in a
mistrial, and the court ultimately dismissed the indictment
pursuant to a later plea agreement.
In a separate incident on February 17, 2006, an undercover
officer witnessed defendant and another individual twice sell CDS.
Officers arrested both men and discovered thirty-three zip lock
bags containing heroin under a piece of wood where they had
previously witnessed defendant retrieve several items. A grand
jury indicted defendant on the same offenses as the previous
indictment, and also on fourth-degree resisting arrest, N.J.S.A.
2 A-4342-16T3
2C:29-2(a); and third-degree conspiracy/distribution of CDS
N.J.S.A. 2C:5-2/2C:35-5(a)(1).
Lastly, on September 13, 2006, undercover officers witnessed
several drug transactions and arrested defendant for allegedly
directing buyers to the seller. An accusation charged defendant
with third-degree possession with intent to distribute, N.J.S.A.
2C:35-5.
In October 2006, pursuant to a plea agreement, defendant pled
guilty to two counts of third-degree possession of CDS with intent
to distribute. In return, the State dismissed all remaining
charges. At his plea hearing, defendant informed the court he
understood his rights, entered his pleas voluntarily without
threat or coercion, truthfully answered the plea form questions,
and was satisfied with his plea counsel.
In December 2006, the court sentenced defendant to concurrent
three-year prison terms on both counts pursuant to his plea
agreement. Defendant did not file a direct appeal.
In October 2016, nearly ten years after his sentencing,
defendant filed a petition for PCR and a motion to vacate his
guilty pleas, alleging ineffective assistance of counsel. The
court denied his petition without an evidentiary hearing on May
8, 2017, finding the petition procedurally barred and otherwise
3 A-4342-16T3
without merit. The court also denied defendant's motion to
withdraw his guilty plea.
Defendant now appeals, raising the following arguments:
POINT ONE
THE PCR COURT ERRED BY DENYING MR. FLEETWOOD'S
MOTION TO WITHDRAW HIS PLEA.
POINT TWO
MR. FLEETWOOD IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT THREE
THE PCR COURT ERRONEOUSLY RULED THAT MR.
FLEETWOOD'S PETITION WAS TIME BARRED BECAUSE
ANY DELAY IN FILING THE PETITION WAS DUE TO
DEFENDANT'S EXCUSABLE NEGLECT AND THERE IS A
REASONABLE PROBABILITY THAT IF THE DEFENDANT'S
FACTUAL ASSERTIONS WERE FOUND TO BE TRUE,
ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A
FUNDAMENTAL INJUSTICE.
I
Rule 3:22-12(a)(1) precludes PCR petitions filed more than
five years after entry of a judgment of conviction unless the
delay was "due to defendant's excusable neglect and . . . there
is a reasonable probability that if the defendant's factual
assertions were found to be true enforcement of the time bar would
result in a fundamental injustice . . . ." R. 3:22-12(a)(1)(A).
To establish “excusable neglect,” a defendant must demonstrate
"more than simply . . . a plausible explanation for a failure to
4 A-4342-16T3
file a timely PCR petition." State v. Norman, 405 N.J. Super.
149, 159 (App. Div. 2009).
Under Rule 1:1-2(a), a court may disregard the time bar when
the defendant demonstrates an injustice by a preponderance of the
credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992)
(citation omitted). However, courts only relax the time bar in
extraordinary or exceptional circumstances, considering "the
extent and cause of the delay, the prejudice to the State, and the
importance of the [defendant’s] claim in determining whether there
has been an ‘injustice’ sufficient to relax the time limits." Id.
at 580. "Absent compelling, extenuating circumstances, the burden
of justifying a petition filed after the five-year period will
increase with the extent of the delay." Ibid.
Defendant contends he demonstrated excusable neglect, and
rigid enforcement of the time bar will result in a fundamental
injustice. Specifically, he claims the trial court and plea
counsel failed to advise him he could file a motion to withdraw
his guilty plea or that he could file a PCR petition within five
years of his conviction.
In the present case, defendant’s sentencing hearing occurred
in December 2006. He did not file his PCR petition until October
2016, almost ten years later, and well beyond the time bar.
Moreover, the court and plea counsel had no obligation to advise
5 A-4342-16T3
defendant of the PCR time limitations in 2006 or the ability to
file a PCR petition or to withdraw a guilty plea. Defendant’s
ignorance of the law does not constitute excusable neglect. State
v. Murray 162 N.J. 240, 246 (2000). Therefore, defendant failed
to show his delay was due to excusable neglect.
II
To establish a claim of ineffective assistance of counsel,
defendants must satisfy a two-part test: (1) "counsel made errors
so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment," and (2) "the
deficient performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
52 (1987). Similarly, when a defendant claims ineffective
assistance in connection with a guilty plea, he or she must show:
"counsel's assistance was not 'within the range of competence
demanded of attorneys in criminal cases'; and . . . 'that there
is a reasonable probability that, but for counsel's errors, [the
defendant] would not have pled guilty and would have insisted on
going to trial.'" State v. Nuñéz-Valdez, 200 N.J. 129, 139 (2009)
(alteration in original) (quoting State v. DiFrisco, 137 N.J. 434,
457 (1994)). Counsel's performance is not deficient if "a
defendant considering whether or not to plead guilty to an offense
receives correct information concerning all of the relevant
6 A-4342-16T3
material consequences that flow from such a plea." State v.
Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).
When a defendant raises a claim for ineffective assistance
of counsel in support of PCR, the judge should grant an evidentiary
hearing "if [the] defendant has presented a prima facie claim in
support of [PCR]." State v. Preciose, 129 N.J. 451, 462 (1992).
To establish a prima facie claim, "defendant must allege specific
facts and evidence supporting his allegations," and "must do more
than make bald assertions that he was denied the effective
assistance of counsel." State v. Porter, 216 N.J. 343, 355 (2013);
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The
defendant must also “demonstrate the reasonable likelihood of
succeeding under" the two-prong Strickland test. Preciose, 129
N.J. at 463.
Applying these standards, we conclude defendant failed to
demonstrate a prima facie showing of ineffective assistance of
plea counsel. Defendant asserts his counsel failed to investigate
his case adequately and pressured him to plead guilty; however,
defendant fails to identify any exculpatory evidence his counsel
could have uncovered upon further investigation. Defendant also
argues he pled guilty due to the short retrial date, the
prosecutor’s bail motion, and the imminent birth of his child.
Defendant provides no basis for attributing those reasons to his
7 A-4342-16T3
counsel. In addition, if counsel did advise defendant to plead
guilty, defendant failed to indicate that advice was outside the
broad range of counsel’s discretion. Moreover, defendant failed
to show that but for counsel’s errors, if any, he would not have
pled guilty. Therefore, we affirm the PCR court’s denial of
defendant’s PCR petition without an evidentiary hearing because
defendant failed to make a prima facie showing of ineffective
assistance of plea counsel.
III
In deciding defendant's motion to withdraw his guilty pleas,
the PCR court addressed the four Slater factors: "(1) whether the
defendant has asserted a colorable claim of innocence; (2) the
nature and strength of defendant's reasons for withdrawal; (3) the
existence of a plea bargain; and (4) whether withdrawal would
result in unfair prejudice to the State or unfair advantage to the
accused." State v. Slater, 198 N.J. 145, 157-58 (2009). Because
post-sentence motions to withdraw a plea must demonstrate that a
"manifest injustice" occurred, "efforts to withdraw a plea after
sentencing must be substantiated by strong, compelling reasons."
Id. at 158, 160 (citing R. 3:2-1). "Following sentencing, if a
defendant seeks to withdraw a guilty plea, the court weighs more
heavily the State's interest in finality and applies a more
8 A-4342-16T3
stringent standard." Norman, 405 N.J. Super. at 160 (citing State
v. McQuaid, 147 N.J. 464, 487 (1997)).
In the present case, the record supports the PCR court's
finding that defendant failed to satisfy the Slater factors. The
judge properly evaluated the relevant facts to find no basis for
a colorable claim of innocence, including defendant’s voluntary
guilty plea and defendant's failure to provide any evidence of
innocence beyond his own statements. Defendant also failed to
present a compelling reason for withdrawal.
Further, defendant entered into a generous plea bargain for
two counts of possession with intent to distribute in the face of
eleven charges spanning two indictments and an accusation.
Withdrawal of defendant's guilty plea would result in unfair
prejudice to the State given the significant length of time between
defendant's plea and his request. Evidence in the case was largely
testimonial and memories of witnesses most likely have faded.
Accordingly, we affirm the PCR court's determination that
defendant failed to meet the high burden of manifest injustice
regarding his request to withdraw his guilty plea.
Affirmed.
9 A-4342-16T3