STATE OF NEW JERSEY VS. QUAM M. WILSON (11-07-1334, 12-03-0429, 12-03-0432 AND 12-03-0436, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3808-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUAM M. WILSON, a/k/a
WILSON G,
Defendant-Appellant.
_________________________________
Submitted September 24, 2018 – Decided October 12, 2018
Before Judges Messano and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment Nos. 11-07-
1334, 12-03-0429, 12-03-0432 and 12-03-0436.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R. Juliano,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Quam Wilson appeals from a December 21, 2016 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
I.
We discern the salient facts and procedural history from the record on
appeal. Between July 2011 and March 2012, defendant was charged with
various drug and weapons offenses in multiple counts of four separate
Monmouth County indictments. On April 9, 2012, pursuant to a negotiated plea
agreement, defendant pled guilty to one count of each indictment: count
nineteen of Indictment No. 11-07-1334 charging him with second-degree certain
persons not to have a firearm (certain persons), N.J.S.A. 2C:39-7(b)(1); count
two of Indictment No. 12-03-0429, charging him with third-degree possession
of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3); count three of
Indictment No. 12-03-0432, charging him with third-degree distribution of
heroin, N.J.S.A. 2C:35-5(b)(3); and count one of Indictment No. 12-03-0436,
charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-
5(10)(a)(1). The State agreed to recommend a seven-year term of imprisonment
with five years of parole ineligibility, pursuant to N.J.S.A. 2C:39-7(b)(1), on
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count nineteen to run concurrently with five-year concurrent terms of
imprisonment on each of the drug counts. The State also agreed to dismiss the
remaining counts of each indictment.
Represented by assigned counsel at the plea proceeding, defendant
testified he was pleading guilty of his own free will, he was satisfied with his
attorney's services, he understood he had a right to trial and he was waiving that
right. Defendant provided a separate factual basis for each of his guilty pleas.
Pertinent to this appeal, regarding the certain persons offense, defendant
admitted he placed a gun in his bedroom "[i]n between [his] clothes[,]" having
been previously convicted of burglary in 2011.
Prior to sentencing before a different judge, defendant retained private
counsel who filed a motion to withdraw defendant's guilty plea pursuant to State
v. Slater, 198 N.J. 145 (2009) (Slater motion). In essence, defendant claimed
he was not guilty of the certain persons offense because the gun belonged to his
godmother. Defendant also asserted that he was coerced to plead guilty because
the police told him that if he did not admit ownership of the weapon, "his
[g]odmother would lose her children . . . to protective services." He also
claimed plea counsel did not file motions to suppress evidence and his
statements because she thought the motions lacked merit. Finally, defendant
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claimed plea counsel did not provide him with discovery pertaining to his
conversations with the police. Defendant did not challenge his guilty pleas to
the three drug offenses.
In a thorough, well-reasoned oral decision, the motion judge analyzed the
Slater factors and denied the motion. Relevant here, the judge found:
[Defendant] does not provide any facts which
would support a conclusion that he was misadvised by
his attorney or that would provide a basis to conclude
such motions, if filed and heard, would have resulted in
the suppression of any evidence or statements.
In fact, other than making clear that he and his
attorney discussed the merits of filing of such motions,
he does not offer any direct argument or assertion that
he's entitled to a withdrawal of his plea because his
attorney held such an opinion regarding the motions or
communicated the opinion to him.
He does not provide any facts or argument that
his attorney's advice regarding the motions was
incorrect. He does not provide any facts or argument
that such possible motions had substantive merit or
would have been granted or would have made any
difference in his decision to enter his pleas of guilty.
Again, his limited recitation of the facts related
to those possible motions simply confirms that he and
his attorney discussed the motions, and that it was his
attorney's opinion that such motions lack merit and as a
result the motions were not filed.
Most simply stated with regard to Mr. Wilson's
reference to those possible motions, his certification
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and legal argument asserted in his counsel's brief do not
address any of the factors set forth in Slater as they
might relate to those motions. With regard to his
reference to those possible motions, Mr. Wilson simply
fails to meet his burden of demonstrating that there is
anything about them which would support his request
to withdraw his guilty plea.
After he denied defendant's motion, the judge imposed the sentence
recommended by the State.
Defendant filed a direct appeal, seeking a remand for evidentiary hearings
regarding his motion to withdraw his guilty plea and a reweighing of the
aggravating and mitigating sentencing factors. He also sought additional jail
credits pursuant to State v. Hernandez, 208 N.J. 24 (2011). An excessive
sentencing panel affirmed his judgment and sentence, but remanded to the trial
court to award additional jail credits on Indictment No. 11-07-1334. State v.
Wilson, No. A-4490-12 (App. Div. Jan. 14, 2014). Defendant did not petition
the Supreme Court for certification.
Defendant then filed a pro se PCR petition, alleging ineffective assistance
of his plea counsel on several grounds: "failure to vigorously pursue and attain
a favorable plea bargain"; "failure to disclose co-defendants['] plea agreement";
"failure to vigorously pursue a drug program"; and failure to move to suppress
evidence regarding the certain persons offense. Defendant subsequently filed
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an amended petition, with the assistance of appointed PCR counsel, claiming
that his plea counsel and private counsel were ineffective in failing to provide
him with discovery and failing to conduct a "a sufficient pre-trial investigation."
Defendant also renewed the claim he advanced in his Slater motion, i.e., that
plea counsel pressured him to plead guilty because he was concerned his
godmother's children would be removed from her custody if he did not admit
ownership of the gun seized from his bedroom.
Following oral argument on December 21, 2016, the PCR judge denied
defendant's petition in a comprehensive oral decision. In doing so, the PCR
judge reviewed defendant's plea colloquy and the claims he asserted in his Slater
motion. The judge also set forth the legal authority pertaining to PCR petitions,
and applied that authority to defendant's contentions.
Initially, the judge determined most of defendant's claims against plea
counsel were procedurally barred because they were "essentially the same
claims raised in defendant's motion to withdraw his plea."1 Citing Rule 3:22-3,
which provides that "PCR is not a substitute for a direct appeal," the judge
1
R. 3:22-4. Although it is unclear from our January 14, 2014 order affirming
the trial court's judgment, during oral argument at his excessive sentencing
appeal, defendant sought a remand regarding the denial of his Slater motion.
Nonetheless, we have considered defendant's arguments on the merits, here, as
did the PCR judge.
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further found defendant "could have appealed the denial of the motion to
withdraw his guilty plea to the Appellate Division but failed to do so."
Nonetheless, the PCR judge considered, in great detail, the merits of
defendant's claims against plea counsel and private counsel. In particular the
judge recognized defendant "failed to present any competent evidence[] . . . that
his attorneys performed deficiently or that he suffered legal prejudice from
counsel's alleged unreasonable acts or omission." She then addressed each of
defendant's claims.
For example, the PCR judge found plea counsel's failure to file motions
to suppress evidence and defendant's statement "comport[ed] with [counsel's]
sound and effective trial strategy." Defendant "failed to articulate any facts to
substantiate his claim that [plea counsel] should have filed these motions." The
PCR judge also reiterated the motion judge's findings set forth above, noting
defendant's claims concerning coercion were "previously litigated in the context
of the motion to withdraw his [guilty] plea." Nonetheless, the PCR judge found
defendant's claims lacked merit because defendant would have been exposed to
a lengthy prison sentence had he exercised his right to trial on the certain persons
charge.
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Noting the gun was seized pursuant to a search warrant, and finding
defendant failed to articulate any facts that would demonstrate his motion s
would have been successful, the PCR judge found:
Even in the context of an ineffective assistance of
counsel claim, a defendant still bears the burden of
demonstrating that his Fourth Amendment claim is
meritorious, [State v.] Goodwin, . . . 173 N.J. [583,] 597
[(2002)], State v. Fisher, 156 N.J. 494, 501 (1988). See
also Kimmelman v. Morrison, 477 U.S. 365, 384
(1986). "Failure to file a suppression motion does not
constitute per se ineffective assistance of counsel."
Rather, the judge concluded "defendant's bald assertion[s] of innocence are in
direct conflict with [his] sworn statement to [the plea judge]" generally
acknowledging his guilt and specifically indicating the gun was seized from his
bedroom, and "he put it there."
Further, the PCR judge determined defendant did not present any support
for his claim that counsel was ineffective for failing to seek a drug program for
defendant. In particular, defendant did not provide proof that he was qualified
for a drug program or that such a program was available. However, the judge
recognized defendant could petition the court for a change in custodial sentence
after he completes his mandatory term of parole ineligibility. 2 The PCR judge
2
R. 3:21-10(b)(1).
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also found the record belied defendant's contention that plea counsel "reviewed
discovery with [him]."
Finally, the PCR judge found defendant's bald assertions neither
established a prima facie case of ineffective assistance of counsel nor a
likelihood of success on the merits. Accordingly, the judge exercised her
discretion pursuant to Rule 3:22-10 and denied defendant's request for a hearing.
This appeal followed.
On appeal, defendant raises the following points for our consideration :
POINT I
THE DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED
BY THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ART[ICLE I],
PAR[AGRAPH] 10 OF THE NEW JERSEY
CONSTITUTION.
A. The Trial Attorneys Failed to Provide the Defendant
with a Complete Defense.
B. The Plea Agreement is Null and Void Because the
Defendant Was Pressured To Enter a Guilty Plea
without Having Sufficient Knowledge About the Facts
of His Case.
POINT II
THE DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING.
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POINT III
PROCEDURAL BARS DO NOT APPLY.
II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Pursuant to Rule
3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was
a "[s]ubstantial denial in the conviction proceedings of defendant's rights under
the Constitution of the United States or the Constitution or laws of the State of
New Jersey."
"[A] defendant asserting ineffective assistance of counsel on PCR bears
the burden of proving his or her right to relief by a preponderance of the
evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A defendant must prove
counsel's performance was deficient; it must be demonstrated that counsel' s
handling of the matter "fell below an objective standard of reasonableness" and
that "counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105 N.J. 42, 52 (1987)
(adopting the Strickland two-part test in New Jersey).
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A defendant must also prove counsel's "deficient performance prejudiced
the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing
a "reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694. Thus, petitioner must
establish that counsel's performance was deficient and petitioner suffered
prejudice in order to obtain a reversal of the challenged conviction. Id. at 687;
Fritz, 105 N.J. at 52.
Further, the mere raising of a claim for PCR does not entitle the defendant
to an evidentiary hearing. 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, material issues of disputed facts lie outside the
record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State
v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR
petition without an evidentiary hearing for abuse of discretion. See Preciose,
129 N.J. at 462. We review any legal conclusions of the trial court de novo.
State v. Nash, 212 N.J. 518, 540-41 (2013); State v. Harris, 181 N.J. 391, 419
(2004).
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While, as noted, we disagree with the PCR judge that defendant's claims
were barred procedurally, the judge astutely rejected defendant's claims on the
merits, giving due deference to counsel's strategy. Here, that strategy was
specifically designed to limit defendant's sentencing exposure by obtaining a
favorable plea agreement encompassing four open indictments, including
weapons and drug offenses. As the PCR judge recounted, there was ample
evidence in the record that counsel negotiated a plea agreement that was
reasonable in light of defendant's sentencing exposure for the certain persons
offense. Indeed, plea counsel successfully negotiated for that sentence to run
concurrently to three separate drug counts in three different indictments.
We are satisfied from our review of the record that defendant failed to
demonstrate a prima facie showing of ineffectiveness of counsel under the
Strickland/Fritz test. We therefore discern no abuse of discretion in the denial
of defendant's PCR petition, and affirm primarily for the reasons set forth in the
PCR judge's well-reasoned opinion. The judge correctly concluded an
evidentiary hearing was not warranted. See Preciose, 129 N.J. at 462-63.
Affirmed.
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