STATE OF NEW JERSEY v. ERNEST WHEELER

NOT FOR PUBLICATION WITHOUT THE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.

ERNEST WHEELER,

Defendant-Appellant.

_______________________________

May 13, 2014

Before Judges Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 03-03-0488, 03-05-0867 and 03-10-1705.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ernest Wheeler appeals from a December 13, 2012 Law Division order denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. Defendant alleged counsel was ineffective for failing to inform him of the following collateral consequences of entering a guilty plea: the suspension of his right to vote; the inability to obtain a firearm's purchaser's identification card; the impact of his conviction in securing certain employment; and the restrictions he might face in residing in certain housing. On appeal, defendant argues:

POINT I.

TRIAL COUNSEL WAS INEFFECTIVE.

POINT II.

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING.

POINT III.

ALL OTHER ISSUES SUGGESTED BY [DEFENDANT]'S PRO SE PETITION, LEGAL MEMORANDUM, AND HIS CERTIFICATION SHOULD BE CONSIDERED AND ADDRESSED BY THE COURT.

Following our consideration of these arguments, in light of the record and applicable law, we reject defendant's contentions and affirm.

Charged with more than twenty narcotics and related offenses in three indictments, defendant entered into a negotiated plea agreement. He pled guilty to eluding (count one of Indictment No. 03-03-0488); possession of CDS (cocaine) with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(1) and 2C:35-7 (count three of Indictment No. 03-05-0867); and possession of a CDS (cocaine) within 1000 feet of school property, N.J.S.A. 2C:35-7 (count eleven of Indictment No. 03-10-1705). In accordance with the agreement, the court sentenced defendant to an aggregate term of five years imprisonment with a thirty-three month period of parole ineligibility, to run concurrently with a sentence previously imposed for federal narcotics violations. Defendant did not appeal.

Thereafter, defendant filed a pro se petition for PCR, asserting he was not advised of the collateral consequences of a conviction, prior to entering his guilty plea. The court assigned counsel, who supplemented the previously filed pleadings with a brief. Defendant's petition was considered by the judge on December 12, 2012. At that time, counsel waived defendant's appearance as he was serving his federal sentence in Pennsylvania. The judge denied PCR and the request for an evidentiary hearing.

"A reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." State v. Nu ez-Vald z, 200 N.J. 129, 141 (2009). However, "we need not defer to a PCR court's interpretation of the law[,]" as all legal conclusions are reviewed de novo. State v. Nash, 212 N.J. 518, 540-41 (2013).

To establish a prima facie case of ineffective assistance of counsel under the first prong of the Strickland test, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that counsel was so deficient, "that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543.

A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J.451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). When a guilty plea is sought to be set aside, counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012),

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In the context of a guilty plea, this prong is satisfied when a defendant establishes a reasonable probability he or she would not have pled guilty and insisted on going to trial, but for counsel's errors. Gaitan, supra, 209 N.J. at 351.

Here, the crux of defendant's argument is that his plea should be withdrawn as uninformed. Defendant asserts had he understood the collateral consequences he identified, he would have insisted on proceeding to trial and not pled guilty. Defendant maintains traditional views separating collateral versus penal consequences of a guilty plea have faded such that "misinformation about a collateral consequence may vitiate a guilty plea in the consequence is a material element of the plea." See State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003). Defendant suggests he raises significant consequences of conviction that were not explained to him prior to his plea that require his conviction be vacated. We are not persuaded.

The constitutional standard requires a finding that counsel provided "misleading, material information that resulted in an uninformed plea[.]" Nu ez-Vald z, supra, 200 N.J. at 139-40. A review of defendant's certification, filed in support of his PCR petition, reveals a broad allegation that counsel "failed to properly advise [him] of the collateral consequences of entering the guilty plea. . . ." Defendant offers no specific facts describing any of the asserted claims and does not explain how he was misled by the advice counsel provided, which he relied upon when entering his plea. Rather, the certification states counsel never addressed these collateral consequences. Under these circumstances, the facts do not support misinformation or misadvice.

Also, no facts show the materiality of the cited collateral consequences. Unlike the defendant in Agathis, defendant here presents no evidence he held a valid firearms identification card that would be forever forfeited or clarifies how "the right to bear arms was material" to him, as he suggests. Agathis, supra, 424 N.J. Super. at 20 (demonstrating defendant specifically inquired of the effect on future gun ownership of the provision of the plea agreement requiring forfeiture of his firearms identification card and was incorrectly advised the ban was not permanent). Defendant does not recite employment or housing once held and now lost to him or address how he was misled regarding the temporary suspension of the franchise.

Indeed, prior to entry of this guilty plea, defendant had already pled guilty to federal narcotics offenses. This prior criminal conviction for similar offenses likely triggered each of these collateral consequences, and consequently, eliminated any impact of his subsequent plea to state offenses.

Our review of the PCR petition reveals defendant offers mere bald assertions, insufficient to support PCR. Cummings, supra, 321 N.J. Super.at 170 ("[A] petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel."). See alsoR.3:22-10(e)(2) (stating court shall not hold an evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative").

Accordingly, we reject as unfounded defendant's claims intended to support the first prong of the Strickland test. The PCR judge properly determined counsel's performance was not shown to have deprived defendant of his constitutional right to effective representation.

Briefly, as to Strickland's second prong, defendant was indicted on more than twenty charges. The negotiated plea agreement reflects that if convicted of all offenses, defendant faced a possible sentence of life in prison, with a twenty-five year period prior to parole eligibility. In light of the extremely favorable five-year sentence in the plea agreement, which was permitted to be concurrent not consecutive to an existing federal sentence, along with the absence of any explanation of the materiality of the collateral consequences, defendant's broad claim that he would have insisted on proceeding to trial rings hollow.

We conclude the alleged deficiencies do not satisfy the standard established in Nu ez-Vald z, requiring proof of affirmative misadvice. Further, defendant's unsupported allegations fail to meet the performance or the prejudice prong of the Strickland test.

Finally, an evidentiary hearing is necessary only when a PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J.72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J.89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

The vague statements presented by defendant do not satisfy this standard. Accordingly, the PCR judge did not abuse his discretion by denying defendant's request for an evidentiary hearing.

Affirmed.