STATE OF NEW JERSEY v. JEREL WILKINS
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1287-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEREL WILKINS, a/k/a JEREL WILKENS,
and JERELL WILKINS,
Defendant-Appellant.
____________________________________
Submitted November 28, 2017 – Decided March 22, 2018
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
14-06-0589.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato,
Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant Jerel Wilkins appeals the trial court's August
30, 2016 order denying his petition for post-conviction relief
(PCR). We affirm.
I.
On October 26, 2013, defendant entered a liquor store at
approximately midnight. He possessed a loaded .38 caliber
revolver in a holster hidden from view. He did not have a
permit, and he had a prior conviction for aggravated assault.
In the liquor store, undercover police officers noticed the gun
and drew their weapons. Defendant ran. An undercover officer
grabbed defendant and he resisted.
Defendant was charged with: count one, second-degree
unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b); count
two, first-degree unlawful possession of a handgun by a person
with a prior conviction,
N.J.S.A. 2C:39-5(j); count three,
fourth-degree possession of hollow-point bullets,
N.J.S.A.
2C:39-3(f); count four, third-degree resisting arrest,
N.J.S.A.
2C:29-2(a)(3); and count five, second-degree certain person not
to have a firearm,
N.J.S.A. 2C:39-7(b).
Pursuant to the plea bargain, defendant pled guilty to
counts four and five. Defendant received the negotiated five
years in prison for count four and a concurrent seven years in
prison for count five, with five years of parole ineligibility.
2 A-1287-16T2
The trial court ordered the sentences to run concurrent to
defendant's sentence for a parole violation. He did not appeal
the January 2, 2015 judgment of conviction.
On February 8, 2016, defendant filed a PCR petition. His
certification alleged his plea counsel was ineffective because
his counsel "failed to explore the amnesty issue" under L. 2013,
c. 117 ("2013 amnesty act" or "act"). Defendant certified when
he was arrested by police he "was committing no crime and was on
[his] way to the police station to lawfully dispose of the
weapon when [he] stopped for a meal." His certification also
alleged his plea counsel "said the amnesty period was 'not
official' and failed to explore the issue further."
On August 30, 2016, the PCR court heard oral argument and
denied relief. In an oral decision, the court concluded plea
counsel was not ineffective because defendant presented no
evidence of a written notice of surrender pursuant to
N.J.S.A
2C:39-12, and thus was not shielded from criminal liability by
the 2013 amnesty act.
Defendant appeals, arguing:
POINT I - FAILURE OF THE PCR COURT TO GRANT
[AN] EVIDENTIARY HEARING ON HIS CLAIM OF
INEFFECTIVE ASSISTANCE OF PLEA COUNSEL WAS
ERROR.
POINT II - THE PCR COURT ERRED IN NOT
ALLOWING DEFENDANT TO WITHDRAW HIS GUILTY
PLEA.
3 A-1287-16T2
II.
Defendant argues the trial court erred in denying him an
evidentiary hearing on his ineffective assistance of counsel
claim. "A defendant shall be entitled to an evidentiary hearing
only upon the establishment of a prima facie [case] in support
of post-conviction relief." R. 3:22-10(b). "To establish a
prima facie case, defendant must demonstrate a reasonable
likelihood that his or her claim, viewing the facts in the light
most favorable to defendant, will ultimately succeed on the
merits." Ibid. As the PCR court did not hold an evidentiary
hearing, we "conduct a de novo review." State v. Harris,
181 N.J. 391, 419 (2004). We must hew to that standard of review.
To show ineffective assistance of counsel, defendant must
satisfy the two-prong test set forth in Strickland v.
Washington,
466 U.S. 668 (1984), and State v. Fritz,
105 N.J. 42
(1987). "First, defendant must show that counsel's performance
was deficient." State v. Taccetta,
200 N.J. 183, 193 (2009)
(quoting Fritz,
105 N.J. at 52). "Second, defendant must show
that the deficient performance prejudiced the defense." Ibid.
For a defendant who has pled guilty to show prejudice, he must
show "that there is a reasonable probability that, but for
counsel's errors, [defendant] would not have pled guilty and
would have insisted on going to trial." State v. DiFrisco, 137
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2 N.J. 434, 457 (1994) (quoting Hill v. Lockhart,
474 U.S. 52, 59
(1985)).
III.
Defendant claims plea counsel failed to explore the
applicability of the 2013 amnesty act. The act became effective
on August 8, 2013. L. 2013, c. 117, §3. The act created a 180-
day window allowing persons to transfer or surrender firearms
they possessed unlawfully without any legal consequences. State
v. Harper,
229 N.J. 228, 236 (2017). The 2013 amnesty act
provided:
Any person who has in his possession a
handgun in violation of [
N.J.S.A. 2C:39-
5(b)] or a rifle or shotgun in violation of
[N.J.S.A. 2C:39-5(c)] on the effective date
of this act may retain possession of that
handgun, rifle, or shotgun for a period of
not more than 180 days after the effective
date of this act. During that time period,
the possessor of that handgun, rifle, or
shotgun shall:
(1) transfer that firearm to any
person lawfully entitled to own or
possess it; or
(2) voluntarily surrender that
firearm pursuant to the provisions
of
N.J.S.A. 2C:39-12.
[Ibid. (alterations in original) (quoting L.
2013, c. 117, § 1).]
Under
N.J.S.A 2C:39-12, a person seeking to voluntarily
surrender a weapon must "gi[ve] written notice of his intention
5 A-1287-16T2
to do so," and voluntarily surrender the weapon, "to the
superintendent or to the chief of police" before authorities
file any charges and "before any investigation has been
commenced concerning the unlawful possession" of the weapon.
Ibid. A person invoking the 2013 amnesty act must "comply with
the provisions of N.J.S.A. 2C:39-12[.]" Harper,
229 N.J. at
240; State in Interest of C.L.H.'s Weapons,
443 N.J. Super. 48,
56 (App. Div. 2015). Otherwise, the 2013 amnesty act's
provisions "would be transformed from devices to encourage the
surrender of firearms to a 'free pass' for those the police have
already found or suspect to be in illegal possession[.]" Ibid.
(quoting C.L.H.'s Weapons,
443 N.J. Super. at 57).
Thus, a defendant charged with violating
N.J.S.A 2C:39-5(b)
during the 180-day amnesty period may raise the amnesty act as a
defense only if he can prove that he possessed a handgun on
August 8, 2013, and "that he took steps to . . . voluntarily
surrender it during the 180-day period beginning on August 8,
2013, consistent with
N.J.S.A. 2C:39-12 — that is, before
authorities brought any charges or began to investigate his
unlawful possession." Harper,
229 N.J. at 241.
Other than unlawfully possessing the gun, defendant did not
meet any of the requirements of the 2013 amnesty act. First,
defendant did not even allege that on August 8, 2013, he
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possessed the handgun he was arrested with on October 26, 2013.
That was enough to defeat his claim. See C.L.H.'s Weapons,
443 N.J. Super. at 56. Second, defendant did not provide written
notice of intent to surrender the gun prior to his arrest
pursuant to
N.J.S.A 2C:39-12. That too was a sufficient basis
to reject the claim.
Third, "nothing in the record [of his prosecution]
demonstrates that defendant took steps to transfer or surrender
the handgun prior to his arrest." Harper,
229 N.J. at 243.
Indeed, when defendant had the gun in the presence of police
officers, he ran away.
Defendant's PCR certification claimed he was "on [his] way
to lawfully dispose of the weapon when [he] stopped for a meal,"
in a liquor store at midnight on a Saturday. However, he did
not claim he told that to plea counsel.
"The reasonableness of counsel's actions" depends on the
"information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically on
such information." DiFrisco,
174 N.J. at 228 (quoting
Strickland,
466 U.S. at 691). "Counsel cannot be faulted for
failing to expend time or resources analyzing events about which
they were never alerted." Ibid.
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Defendant did certify his "plea attorney said the amnesty
period was 'not official' and failed to explore the issue
further." However, "[a] court shall not grant an evidentiary
hearing . . . (2) if the defendant's allegations are too vague,
conclusory or speculative." R. 3:22-10(e). "Rather, defendant
must allege specific facts and evidence supporting his
allegations." State v. Porter,
216 N.J. 343, 355 (2013). In
order to show a prima facie claim, a petitioner for post-
conviction relief "must do more than make bald assertions that
he was denied the effective assistance of counsel." Ibid.
In any event, given defendant's inability even to allege he
met the requirements of the 2013 amnesty act, defendant has not
shown further investigation could have changed the outcome. He
did not even allege, let alone show, that he would not have pled
guilty and would have gone to trial if plea counsel had
explained to him the requirements of the act. Therefore,
defendant cannot show prejudice. Thus, the PCR court properly
denied defendant's PCR petition without an evidentiary hearing.
IV.
In his pro se PCR petition, defendant argued he should be
permitted to withdraw his guilty plea under Rule 3:21-1 based on
the 2013 amnesty act. However, defendant's counseled brief did
not raise such a claim. In its ruling, the PCR court said
8 A-1287-16T2
defendant had not asked to withdraw his plea, but it would
"consider such a motion so the record is complete." Defendant
argues the trial court erred in denying withdrawal of his guilty
plea. We disagree.
"[A] plea may only be set aside in the exercise of the
court's discretion." State v. Slater,
198 N.J 145, 156 (2009)
(citing State v. Simon,
161 N.J. 416, 444 (1999)). Thus, an
appellate court will reverse a "trial court's denial of [a]
defendant's request to withdraw his guilty plea . . . only if
there was an abuse of discretion which renders" the trial
court's decision "clearly erroneous." Simon,
161 N.J. at 444.
A motion to withdraw a guilty plea after sentencing can be
granted only "to correct a manifest injustice." R. 3:21-1. The
court must consider "(1) whether the defendant has asserted a
colorable claim of innocence; (2) the nature and strength of the
defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal could result in unfair
prejudice to the State or unfair advantage to the accused."
Slater,
198 N.J. at 157-58. If one factor is missing, it does
not "automatically disqualify or dictate relief." Id. at 162.
Defendant asserts he has a colorable claim of innocence
under the 2013 amnesty act. However, Slater makes clear that a
"bare assertion of innocence is insufficient to justify
9 A-1287-16T2
withdrawal of a plea. Defendants must present specific,
credible facts and, where possible, point to facts in the record
that buttress their claim." Id. at 158. As set forth above,
defendant failed to allege such facts to show he met the
requirements of the 2013 amnesty act.
Defendant claims plea counsel's alleged advice that the
2013 amnesty act was "not official" was an adequate reason for
withdrawal. However, as set forth above, that is not a strong
reason for withdrawal. As the PCR court found, defendant's
claim that he was on his way to the police station when he was
arrested appears to be a meritless "after thought."
Defendant received a favorable plea bargain. He was
initially charged with five different crimes including one
first-degree and two second-degree offenses. However, the plea
bargain allowed defendant to plead guilty to only a second-
degree offense and a third-degree offense, with concurrent
sentences totaling only seven years. "[D]efendants have a
heavier burden in seeking to withdraw pleas entered as part of a
plea bargain." Slater,
198 N.J. at 160.
The PCR court found no undue prejudice to the State.
Nonetheless, balancing all of the factors, the PCR court did not
abuse its discretion in finding defendant was not entitled to
withdraw his plea.
10 A-1287-16T2
Affirmed.
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