STATE OF NEW JERSEY v. FLOYD WATTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FLOYD WATTS,

Defendant-Appellant.

________________________________________

July 21, 2015

Submitted February 9, 2015 Decided

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 10-04-1035 and 10-05-1107.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Floyd Watts appeals from an April 8, 2013 order denying his petition for post-conviction relief (PCR). He contends he received ineffective assistance of plea counsel and that the PCR court erred in denying his request for an evidentiary hearing. Upon our review in light of the record and governing law, we affirm.

Defendant pled guilty to fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), on Indictment No. 10-04-1035. As to Indictment No. 10-05-1107, defendant pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7, and third-degree possession with the intent to distribute over an ounce of marijuana, N.J.S.A. 2C:35-5(A)(1) and N.J.S.A. 2C35-5(B)(11). Defendant appeared at the plea hearing and provided a factual basis for each offense. The plea judge accepted defendant's factual basis and also concluded that defendant pled guilty knowingly and voluntarily. In accordance with the negotiated plea agreement, the judge sentenced defendant to the recommended aggregate sentence of five years in prison with five years of parole ineligibility. Defendant did not file a direct appeal.

Defendant timely filed a petition for PCR, primarily contending that his plea counsel was ineffective by failing to: (1) argue pretrial motions, (2) discuss trial strategy with him, (3) conduct a thorough investigation, (4) and make arrangements for him to review and examine evidence. As part of his PCR petition, defendant sought to vacate his guilty plea. Judge Bernard E. DeLury, Jr., conducted oral argument and issued a sixteen-page comprehensive written decision, denying defendant's request for PCR, concluding defendant did "not establish a prima facie case . . . for ineffective assistance of counsel." The judge noted even if defendant's attorney was deficient, defendant failed to show that any alleged deficiency "prejudiced him in any way." The judge also denied defendant's request for an evidentiary hearing, stating, "There is no evidence outside the record that would be useful in resolving the issue at hand. The ineffective assistance of counsel claims cited by the Petitioner fail the Strickland test. . . . [A] plenary hearing is not necessary."

On appeal, defendant raises the following issues for our consideration

TRIAL COUNSEL'S FAILURE TO FILE ANY PRETRIAL MOTIONS, CONDUCT ANY INVESTIGATION, LACK OF EXPLORATION OF ANY TRIAL STRATEGIES, AND HIS CONCENTRATION ON WORKING OUT A PLEA BARGAN, DEPRIVED PETITIONER THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.

We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge DeLury in his cogent and comprehensive written opinion. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.

Finally, we recognize, as did Judge DeLury, "[i]t is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013). We agree with the court's conclusion that an evidentiary hearing was not required and would not have assisted it in the determination.

Affirmed.