STATE OF NEW JERSEY VS. TYSHAWN WEBB (13-03-0634 AND 13-05-1090, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2244-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYSHAWN WEBB,
Defendant-Appellant.
_________________________
Submitted February 27, 2019 – Decided March 21, 2019
Before Judges Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 13-03-0634
and 13-05-1090.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Charles C. Cho, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Tyshawn Webb appeals from a November 9, 2017 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
Defendant was charged in two separate indictments, stemming from two
incidents on different dates, with the following: armed robbery, N.J.S.A. 2C:15-
1; robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b); possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a);
resisting arrest, N.J.S.A. 2C:29-2(a); and aggravated assault, N.J.S.A. 2C:12-
1(b)(2). Recognizing he risked potential imprisonment of up to thirty years in
prison on the two separate robbery charges alone, defendant entered into an
agreement with the state to plead guilty to first-degree robbery and second-
degree robbery with a total maximum exposure of ten years in prison.
During the plea colloquy, defendant acknowledged he signed the plea
forms, he answered the questions on the forms honestly, no one threatened him
or made any promises in return for his guilty plea, and he was not under the
influence of any substance that would impair his ability to understand the p lea
proceeding. In addition, defendant stated he was satisfied with the services of
his attorney. Based on defendant's testimony during the plea colloquy, the judge
found defendant
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understands the charges, has competent counsel, knows
the maximum penalties. He admits to the charges. He
entered the plea freely and voluntarily. He's voluntarily
waived his right to a jury trial, self-incrimination. He's
given us a factual basis. He understands the
consequences of parole ineligibility. He understands
what the No Early Release Act is about . . . .
The sentence was imposed by the same judge who conducted the plea
hearing. At sentencing, defense counsel asked the judge to sentence defendant
one degree lower and the judge explained why, in accordance with the law, he
was unable to do so. Defendant was sentenced in accordance with the negotiated
plea to ten years in prison on the first-degree robbery charge with an eighty-five
percent parole disqualifier pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-72, and a concurrent eight years under NERA on the second-
degree robbery charge with the same eighty-five percent parole ineligibility.
Defendant filed a PCR petition on May 8, 2017. In his petition, defendant
alleged ineffective assistance of counsel because defense counsel failed to
conduct any pretrial investigation; forced him to plead guilty; failed to file a
motion for a reduced sentence. Defense also alleged an insufficient factual basis
for his plea to first-degree robbery.
In a written decision dated November 6, 2017, the PCR judge concluded
defendant failed to set forth facts that would support a claim of ineffective
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assistance of counsel beyond defendant's self-serving assertions. The judge
found "[t]here is no further elaboration as to how [defendant] was 'forced' to
plead guilty, how his counsel failed to conduct pretrial investigations, or that
there was an insufficient factual basis for his guilty plea."
On the issue of defense counsel's purported failure to seek a more
favorable sentence, the PCR judge found defendant's argument was belied by a
review of the sentencing hearing transcript. During sentencing, defense counsel
requested the judge sentence defendant to a degree lower for the first-degree
robbery charge. Thus, the PCR judge found defendant's argument was
"meritless."
In rejecting defendant's argument regarding the voluntariness of his plea,
the PCR judge held "the trial court's plea colloquy with [defendant] plainly
addresses the charged offenses, [defendant's] understanding of the offenses, and
his constitutional right to a trial by jury." The PCR judge noted the plea hearing
judge emphasized "the consequences of accepting a guilty plea and [defendant's]
inability to take it back once entered." Based on a review of the guilty plea
transcript, the PCR judge concluded defendant's "plea was entered knowingly
and voluntarily."
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On appeal, defendant raises the following argument:
POINT I
THE LAW DIVISION ERRED BY DENYING
DEFENDANT'S PCR PETITION WITHOUT AN
EVIDENTIARY HEARING.
A. THIS [C]OURT SHOULD REMAND FOR
AN EVIDENTIARY HEARING ON DEFENDANT'S
PCR PETITION.
B. ALTERNATIVELY, THIS [C]OURT
SHOULD AT LEAST REMAND FOR
RECONSIDERATION SO THAT THE LAW
DIVISION CAN MAKE RELEVANT FINDINGS OF
FACT BEFORE DECIDING WHETHER AN
EVIDENTIARY HEARING IS WARRANTED.
According to defendant, an evidentiary hearing was required to determine
whether defense counsel was ineffective for advising defendant to plead guilty
without conducting any pretrial investigation. In addition, defendant contends
he is entitled to withdraw his guilty plea because it was neither knowing nor
voluntary.
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-part test enunciated in Strickland v. Washington
by demonstrating that: (1) counsel's performance was deficient, and (2) the
deficient performance actually prejudiced the accused's defense. 466 U.S. 668,
687 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).
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To establish a prima facie claim of ineffective assistance of counsel, a
defendant must demonstrate a reasonable likelihood of succeeding under the
Strickland/Fritz test. See State v. Preciose, 129 N.J. 451, 463 (1992). A
defendant "must do more than make bald assertions[,] . . . [and] must allege facts
sufficient to demonstrate counsel's alleged substandard performance." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). In the context of a guilty
plea, a defendant is required to show "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. DiFrisco, 137 N.J. 434, 457 (1994) (alteration
in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
The PCR judge noted a complete absence of any information to support
defendant's ineffective assistance of counsel claim. Defendant offered no
evidence that had his defense counsel conducted a more thorough pretrial
investigation, defendant would have elected to proceed to trial rather than enter
a guilty plea.
Defendant faced a potential sentence of thirty years in prison on the
robbery charges alone. By entering a guilty plea, defendant received a
substantially lesser sentence. All other charges against defendant were
dismissed. We discern no basis to disturb the PCR judge's determination that
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defendant failed to make a prima facie case of ineffective assistance of counsel
if counsel advised defendant to plead guilty.
Nor does the record support defendant's request to withdraw his plea
because it was not knowing and voluntary. At the plea hearing, defendant
expressly stated he understood his rights, waived his right to a jury trial,
acknowledged the maximum penalties that could be imposed, admitted to the
charges, and was satisfied with his attorney's services. The record demonstrates
defendant unequivocally waived his rights and entered his plea knowingly and
voluntarily. We are satisfied defendant failed to establish a prima facie case of
ineffective assistance of counsel because his plea was knowing and voluntary.
Since defendant failed to make a prima facie showing of ineffective
assistance of counsel, no evidentiary hearing was required. Preciose, 129 N.J.
at 462-63.
Affirmed.
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