STATE OF NEW JERSEY v. WALI WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6331-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALI WILLIAMS, a/k/a TYRONE JOHNSON,

TYRONE TELLER, TYRONE THOMAS, TYRONE

WATERMELON, TYRONE WILLIAMS, WAIL

WILLIAMS, WALI I. WILLIAMS,

Defendant-Appellant.

_________________________________________

May 10, 2011

 

Submitted November 4, 2010 Decided

 

Before Judges R. B. Coleman and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1040.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Wali Williams appeals from an order dated April 2, 2009 denying his petition for post-conviction relief (PCR) and an evidentiary hearing. He asserts he presented a prima facie showing that his constitutional rights were violated by the PCR court's rulings.

The matter arises out of an Essex County grand jury indictment charging defendant with two counts of murder, N.J.S.A. 2C:11-3(a)(1), (2) (counts one and seven); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two and eight); three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three, four, and nine); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts five and ten); one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eleven); two counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (counts twelve and thirteen); and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count fourteen).

Following denial of his motion to suppress physical evidence and a confession, defendant agreed to enter a plea of guilty to two counts of felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two and eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count ten); and second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (count eleven). In exchange, the State agreed to recommend an aggregate custodial term of thirty years, without parole, and the dismissal of the remaining charges.

Before accepting the plea, the trial judge engaged in the following exchange with the defendant:

THE COURT: Mr. Williams, did you hear the assistant prosecutor, your attorney and the court discuss the proposed recommendation?

 

THE DEFENDANT: Yes.

 

THE COURT: Did your attorney explain it to you?

 

THE DEFENDANT: Yes.

 

THE COURT: Do you understand it?

 

THE DEFENDANT: Yes.

 

THE COURT: Is it true that you want to plead guilty?

 

THE DEFENDANT: Yes.

 

. . . .

 

THE COURT: Do you understand it will be very difficult to take this guilty plea back once I accept your guilty plea?

 

THE DEFENDANT: Yes.

 

THE COURT: Do you understand I'm more likely to believe what you have told me today that shows me you're guilty of these crimes rather than some later statement by you tending to show that you're not guilty?

 

THE DEFENDANT: Yes.

 

THE COURT: Knowing that, do you still wish to plead guilty?

 

THE DEFENDANT: Yes.

 

THE COURT: Do you understand that once you have been sentenced it will be even more difficult to try to take back the guilty plea you're entering today?

 

THE DEFENDANT: Yes.

 

THE COURT: Understanding that do you still wish to plead guilty?

 

THE DEFENDANT: Yes.

 

. . . .

 

THE COURT: Is your plea of guilty entirely voluntary?

 

THE DEFENDANT: Yes.

 

THE COURT: It's your decision and your decision alone to plead guilty, correct?

 

THE DEFENDANT: Yes.

 

. . . .

 

THE COURT: Why are you pleading guilty in connection with the felony murder of Mr. Sutton, the felony murder of Mr. Brown, the unlawful possession of a handgun and a possession of a handgun for an unlawful purpose on November 13, 2003 in East Orange and Newark?

 

Why, sir, are you pleading guilty to these crimes?

 

THE DEFENDANT: Because I committed the crimes.

 

THE COURT: Are you in fact guilty of the very crimes you're pleading guilty to?

 

THE DEFENDANT: Yes.

 

THE COURT: There's no question about your guilt of these crimes, is there, sir?

 

THE DEFENDANT: No.

 

THE COURT: His [sic] has Mr. Goines represented you during these proceedings, conferred with you, explained things to you and answered your questions?

 

THE DEFENDANT: Yes.

 

THE COURT: Are you satisfied with Mr. Goines' services?

 

THE DEFENDANT: Yes.

 

THE COURT: Do you have any questions you would like to ask Mr. Goines, Assistant Prosecutor Sukhdeo or me before we conclude these proceedings, lest on some other day you come back and say Judge, I didn't understand what was going on the day I pled guilty?

 

Do you have any questions? This is your opportunity. Take as much time as you need.

 

THE DEFENDANT: I have no questions.

 

Defendant appealed his conviction and sentence. In his direct appeal, defendant argued that his conviction should have been reversed because the waiver of his right to remain silent was not knowing and intelligent. In an unpublished opinion,1 State v. Williams, No. A-6685-04 (App. Div. Oct. 2, 2007), we affirmed defendant's convictions. The Supreme Court denied defendant's petition for certification. State v. Williams, 193 N.J. 223 (2007).

Thereafter, defendant filed a pro se petition for PCR. Later, defendant, assisted by counsel, submitted a supplemental petition. After a non-testimonial hearing, Judge Stephen J. Bernstein, denied defendant's petition for PCR. Defendant filed this appeal and raises the following issues:

POINT I: THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

POINT II: THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

 

We have considered these arguments in light of the facts and applicable law, and we affirm the order denying defendant's petition.

I.

PCR provides a means for defendants to challenge their convictions on grounds "which could not have been raised on direct appeal." State v. McQuaid, 147 N.J. 464, 482 (1997); R. 3:22-4(a)(1). State v. Preciose, 129 N.J. 451, 459 (1992) interprets Rule 3:22-4 as procedurally barring a petitioner for PCR "if they could have, but did not, raise the claim in a prior proceeding," unless they satisfy one of the following exceptions:

(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

 

[Id. at 459.]

Defendant filed a direct appeal on August 19, 2005, but failed to file a motion to withdraw his guilty plea pursuant to Rule 3:21-1. Nevertheless, in his petition for PCR, defendant argued that since he did not receive effective assistance of counsel, his plea was not given knowingly or voluntarily.

Notably, to the extent that there were deficiencies in the plea hearing, they could and should have been recognized forthwith and brought to the attention of the trial court prior to sentencing. See R. 3:21-1 (stating, "[a] motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice"). "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 stringent standard." McQuaid, supra, 147 N.J. at 487. "What is crucial is that the plea bargain has been fairly reached and that defendant's reasonable expectations drawn from the terms of the bargain have been fulfilled." State v. Taylor, 80 N.J. 353, 364 (1979).

A defendant's representations "at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea," State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). This is because "'[s]olemn declarations in open court carry a strong presumption of verity.'" Ibid. (quoting State v. DiFrisco, 137 N.J. 434, 452 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)). Accordingly, "'[a] guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges.'" Ibid. (quoting State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992)).

In addition, the trial court must weigh the policy considerations favoring the finality of judicial procedures against the principle that "no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandingly." State v. Herman, 47 N.J. 73, 76-77 (1966).

Here, defendant's testimony at the time he entered his guilty plea is, indeed, a formidable barrier to allowing him to withdraw the plea years later. The transcript of the plea hearing provides clear evidence that the plea was voluntary and informed. Even though defendant professed a satisfaction with his attorney's representation and an understanding of the finality of his plea, he now seeks through his petition to withdraw his plea of guilty to two counts of first-degree felony murder, one count of third-degree unlawful possession of a weapon and one count of second-degree possession of a weapon for unlawful purpose.

"[A] defendant's application to retract a plea must be considered in light of the competing interests of the State and the defendant." State v. Slater, 198 N.J. 145, 155 (2009).

To address those concerns, the court rules set forth two standards that are dependent on the time a plea withdrawal motion is made. Motions filed at or before the time of sentencing will be granted in the "interests of justice," Rule 3:9-3(e); post-sentencing motions must meet a higher standard of "manifest injustice" to succeed, Rule 3:21-1.

 

[Id. at 156.]

For both standards, "a plea may only be set aside in the exercise of the court's discretion." Ibid. "In all cases, . . . 'the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Ibid. (quoting State v. Smullen, 118 N.J. 408, 416 (1990) (additional citations omitted)).

There is no such manifest injustice here. Ultimately, in its determination whether to permit the withdrawal of a plea, a trial court must consider and balance four 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; (4) whether withdrawal would result in unfair prejudice to the State and unfair advantage to the accused." Id. at 157-58; see also State v. Hayes, ____ N.J. ____ (2011) (slip op. at 38-40) (holding that an adjournment should be granted to permit a defendant to obtain conflict-free counsel to advance his application to withdraw his guilty pleas since defendant was required to proceed without counsel).

A balancing of the four factors delineated in Slater, supra, 198 N.J. at 157-58 leads us to conclude that defendant should not be permitted to withdraw his guilty plea.

As to the first factor, the Court has made it clear that "a bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. Defendant, however, does not claim innocence, nor even that his reasonable expectations were disappointed. Rather, he argues solely that he received ineffective assistance of counsel.2 This bald assertion fails to satisfy Slater.

As to the second factor of Slater, defendant does not have a valid reason for withdrawal of his guilty plea. Defendant claims that the information provided to him by the attorney he had retained compromised his decision to plead guilty. We measure this claim in accordance with the well-established standard for evaluating claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693 (1984). To present a prima facie case of ineffective assistance of counsel in regard to a plea agreement, defendant must not only establish that his counsel misinformed him about the consequences of the plea, but "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." DiFrisco, supra, 137 N.J. at 457; see McQuaid, supra, 147 N.J. at 487.

To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, and (ii) 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.

[DiFrisco, supra, 137 N.J. at 457 (internal quotations and citations omitted) (alteration in original).]

 

The second prong of Strickland compels us to conclude that the failure of plea counsel to move to vacate the plea did not prejudice defendant. Defendant testified under oath at the plea hearing that he wanted to plead guilty to certain charges against him and that he understood what those charges meant. He swore he voluntarily signed the three-page plea form, which he understood before he signed it and initialed the first two pages. He affirmed that the contents of the plea form were true. He testified that his plea counsel had spoken with him, explained the charges, and answered any questions he had. He told the judge that he was satisfied with his counsel's advice.

Next, it is undisputed that there was a plea bargain in this case. Moreover, the prejudice to the State if it were required to reconstruct and try the case nearly a decade after the entry of defendant's plea is obvious. See State v. Mitchell, 126 N.J. 565, 575-76 (1992) (recognizing that memories dim, witnesses die or disappear and evidence is lost or becomes unattainable). For the foregoing, the facts of this case do not present sufficient grounds to withdraw defendant's guilty plea.

II.

Merely raising an ineffective assistance of counsel claim does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

An evidentiary hearing is only required to resolve issues of fact when there has been a prima facie showing of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63. No such showing was made in this case. We reject defendant's contention that he carried his burden of a prima facie case of ineffective assistance of counsel, and to the extent specific assertions of error are not explicitly addressed in this opinion, we are convinced they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

 

1 A detailed recitation of the facts can be found in that opinion. For present purposes, it is sufficient to note that defendant's conviction and sentence arose out of two shootings resulting in death, during the course of a two day spree of armed robberies.

2 We perceive this to be an assertion calculated to avoid the substantive and procedural bars presented as a result of defendant's failure to seek withdrawal of his plea either prior to sentencing or thereafter, including on direct appeal.