STATE OF NEW JERSEY v. BOBBY WILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3356-06T43356-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BOBBY WILEY,

Defendant-Appellant.

_____________________________________________________________

 

Submitted February 24, 2009 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

00-10-2964.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M. Gilson,

Designated Counsel, of counsel and on the

brief).

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Linda A. Shashoua,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Bobby Wiley appeals from an order dated December 14, 2006, denying his petition for post-conviction relief (PCR). We affirm.

On October 2, 2000, defendant pled guilty to first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a). In return for defendant's guilty plea, the State agreed to recommend that defendant's sentence be limited to a twenty-year prison term with seventeen years of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. After defendant was sentenced in accordance with the plea agreement, he claimed that his sentence was excessive, and he appealed. We affirmed pursuant to Rule 2:9-11, State v. Wiley, No. A-6446-00T4 (2004), and the Supreme Court denied defendant's petition for certification. 183 N.J. 218 (2005).

Defendant presents the following arguments on appeal:

POINT I

DEFENDANT'S AGGRAVATED MANSLAUGHTER CONVICTION MUST BE REVERSED BECAUSE THERE WAS NOT A FACTUAL BASIS TO SUPPORT HIS GUILTY PLEA.

POINT II

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS ESTABLISHED.

Our review of the record reveals that these arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

At his plea hearing on October 2, 2000, defendant testified he understood his constitutional rights, including his right to remain silent and his right to a jury trial, and that he was freely and voluntarily entering his guilty plea. He also stated he was satisfied with the legal services his attorney provided, and that he understood he was charged with recklessly, under circumstances manifesting extreme indifference to the value of human life, causing the death of Nicole Bulas on October 24, 1999. In response to questions from the court, defendant testified as follows:

Q. Do you have any questions?

A. No.

Q. You want to plead guilty to this matter?

A. Yes.

Q. Tell me in your own words what happened October the 24th of 1999 to bring about this charge. What did you do, sir?

A. During an argument I caused the death of Nicole Bulis (phonetic).

Q. And how did you do that?

A. Strangled her.

THE COURT: Counsel, any questions?

MS. PICKER [DEFENSE COUNSEL]: No.

MS. ALBRIGHT [PROSECUTOR]: No, Your Honor, I believe that covers the elements of the offense. The only thing that I would do is supplement the record to say that that is consistent with the post-mortem examination where Dr. Katherman (phonetic) determined that Ms. Bulis did indeed die as the result of manual strangulation.

BY THE COURT:

Q. You used your hands?

A. Yes.

Q. All right. Is everything you told everyone here today been the truth?

A. Yes.

The trial court's reasons for denying defendant's PCR petition included the following:

THE COURT: Well, let's just review the sequence of events. From my review of everything, . . . by his own admission to various witnesses and then in his confession to the authorities, he indicates -- and also to Judge Colalillo that he strangled this lady that was his love and then he went, as I recall, into the bathroom, comes out and she was not responsive, and he then leaves for a period of time and makes a 911 call sometime later. So there's a gap of time when he does nothing to assist her. . . .

. . . .

In reviewing this, I could not decipher any merit whatsoever to the defendant's various contentions. There's reference to . . . the alleged fact that he didn't understand that there was a seventeen-year parole disqualifier, and that was gone over numerous times not only on the record by his own counsel, but by Judge Colalillo; absolutely beaten up in terms of a concept in the process leading up to the defendant's guilty plea and the subsequent sentencing.

So that has absolutely no merit. There's a contention that he was told to just answer yes to the judge's questions in the plea colloquy. Well, I mean, for starters, first of all, he swore to tell the truth in the plea colloquy and then basically what he's telling the Court now in his affidavit is well, I lied in the process because all I was doing was doing what my attorney told me to do and answering the questions yes.

Well, as you gentlemen know, he didn't just answer the questions yes. He answered at least a couple of questions no and he answered them no appropriately if the plea was going to be accepted.

. . . .

. . . It seems to me from everything I've read that Ms. Picker did a admirable job in negotiating the agreement that was effected here. Everything that happened it seemed happened in a fair and reasonable fashion.

. . . I read through the plea colloquy very carefully and it seemed to me that Judge Colalillo covered . . . every aspect of an appropriate plea in this case.

. . . .

He wasn't under duress. He was satisfied with his attorney, and all his questions had been answered. There was a relatively limited factual basis, but I don't find that it had to be any more extensive. He admitted that he strangled the lady, and then Ms. Albright who was present indicated that what was said by the defendant and what was commented upon by counsel was hand in glove with [the medical examiner's] autopsy. Once again, conclusion: homicide, by manual strangulation.

So I don't find it a close question, gentlemen, at all in regard to a prima facie case. I don't think the defendant was presented anything that would make this Court think that any further hearing was necessary and certainly nothing would make me think that we're even close to a prima facie case. So the application is denied.

With regard to defendant's first point, the record fully supports the PCR court's determination that there was an adequate factual basis for defendant's guilty plea. See State ex rel. T.M., 166 N.J. 319, 327 (2001) ("[A] factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy."). In addition, it is clear from defendant's plea colloquy that he entered his plea freely and voluntarily "with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2; see State v. McQuaid, 147 N.J. 464, 486 (1997) ("Rule 3:9-2 requires that a defendant who pleads guilty do so voluntarily, knowingly, and intelligently.").

In his second point, defendant contends that his ineffective-assistance-of-counsel claims should not have been denied without an evidentiary hearing. We do not agree. Based on our review of the record, we are satisfied that the PCR court correctly concluded that defendant failed to establish both elements of the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted in State v. Fritz, 105 N.J. 42, 58 (1987). We therefore affirm substantially for the reasons stated by Judge John T. McNeill, III, in his comprehensive oral decision on December 14, 2006.

Affirmed.

(continued)

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A-3356-06T4

March 18, 2009