STATE OF NEW JERSEY v. QUAM M. WILSON,

NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3808-16T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

QUAM M. WILSON, a/k/a
WILSON G,

     Defendant-Appellant.
_________________________________

                Submitted September 24, 2018 – Decided October 12, 2018

                Before Judges Messano and Rose.

                On appeal from Superior Court of New Jersey, Law
                Division, Monmouth County, Indictment Nos. 11-07-
                1334, 12-03-0429, 12-03-0432 and 12-03-0436.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Kevin G. Byrnes, Designated Counsel, on
                the brief).

                Christopher J. Gramiccioni, Monmouth County
                Prosecutor, attorney for respondent (Mary R. Juliano,
                Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Quam Wilson appeals from a December 21, 2016 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

                                       I.

      We discern the salient facts and procedural history from the record on

appeal. Between July 2011 and March 2012, defendant was charged with

various drug and weapons offenses in multiple counts of four separate

Monmouth County indictments. On April 9, 2012, pursuant to a negotiated plea

agreement, defendant pled guilty to one count of each indictment:         count

nineteen of Indictment No. 11-07-1334 charging him with second-degree certain

persons not to have a firearm (certain persons),  N.J.S.A. 2C:39-7(b)(1); count

two of Indictment No. 12-03-0429, charging him with third-degree possession

of heroin with intent to distribute,  N.J.S.A. 2C:35-5(b)(3); count three of

Indictment No. 12-03-0432, charging him with third-degree distribution of

heroin,  N.J.S.A. 2C:35-5(b)(3); and count one of Indictment No. 12-03-0436,

charging him with third-degree possession of cocaine,  N.J.S.A. 2C:35-

5(10)(a)(1). The State agreed to recommend a seven-year term of imprisonment

with five years of parole ineligibility, pursuant to  N.J.S.A. 2C:39-7(b)(1), on


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count nineteen to run concurrently with five-year concurrent terms of

imprisonment on each of the drug counts. The State also agreed to dismiss the

remaining counts of each indictment.

      Represented by assigned counsel at the plea proceeding, defendant

testified he was pleading guilty of his own free will, he was satisfied with his

attorney's services, he understood he had a right to trial and he was waiving that

right. Defendant provided a separate factual basis for each of his guilty pleas.

Pertinent to this appeal, regarding the certain persons offense, defendant

admitted he placed a gun in his bedroom "[i]n between [his] clothes[,]" having

been previously convicted of burglary in 2011.

      Prior to sentencing before a different judge, defendant retained private

counsel who filed a motion to withdraw defendant's guilty plea pursuant to State

v. Slater,  198 N.J. 145 (2009) (Slater motion).    In essence, defendant claimed

he was not guilty of the certain persons offense because the gun belonged to his

godmother. Defendant also asserted that he was coerced to plead guilty because

the police told him that if he did not admit ownership of the weapon, "his

[g]odmother would lose her children . . . to protective services."       He also

claimed plea counsel did not file motions to suppress evidence and his

statements because she thought the motions lacked merit. Finally, defendant


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claimed plea counsel did not provide him with discovery pertaining to his

conversations with the police. Defendant did not challenge his guilty pleas to

the three drug offenses.

      In a thorough, well-reasoned oral decision, the motion judge analyzed the

Slater factors and denied the motion. Relevant here, the judge found:

                   [Defendant] does not provide any facts which
            would support a conclusion that he was misadvised by
            his attorney or that would provide a basis to conclude
            such motions, if filed and heard, would have resulted in
            the suppression of any evidence or statements.

                  In fact, other than making clear that he and his
            attorney discussed the merits of filing of such motions,
            he does not offer any direct argument or assertion that
            he's entitled to a withdrawal of his plea because his
            attorney held such an opinion regarding the motions or
            communicated the opinion to him.

                  He does not provide any facts or argument that
            his attorney's advice regarding the motions was
            incorrect. He does not provide any facts or argument
            that such possible motions had substantive merit or
            would have been granted or would have made any
            difference in his decision to enter his pleas of guilty.

                   Again, his limited recitation of the facts related
            to those possible motions simply confirms that he and
            his attorney discussed the motions, and that it was his
            attorney's opinion that such motions lack merit and as a
            result the motions were not filed.

                  Most simply stated with regard to Mr. Wilson's
            reference to those possible motions, his certification

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            and legal argument asserted in his counsel's brief do not
            address any of the factors set forth in Slater as they
            might relate to those motions. With regard to his
            reference to those possible motions, Mr. Wilson simply
            fails to meet his burden of demonstrating that there is
            anything about them which would support his request
            to withdraw his guilty plea.

After he denied defendant's motion, the judge imposed the sentence

recommended by the State.

      Defendant filed a direct appeal, seeking a remand for evidentiary hearings

regarding his motion to withdraw his guilty plea and a reweighing of the

aggravating and mitigating sentencing factors. He also sought additional jail

credits pursuant to State v. Hernandez,  208 N.J. 24 (2011). An excessive

sentencing panel affirmed his judgment and sentence, but remanded to the trial

court to award additional jail credits on Indictment No. 11-07-1334.     State v.

Wilson, No. A-4490-12 (App. Div. Jan. 14, 2014). Defendant did not petition

the Supreme Court for certification.

      Defendant then filed a pro se PCR petition, alleging ineffective assistance

of his plea counsel on several grounds: "failure to vigorously pursue and attain

a favorable plea bargain"; "failure to disclose co-defendants['] plea agreement";

"failure to vigorously pursue a drug program"; and failure to move to suppress

evidence regarding the certain persons offense. Defendant subsequently filed


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an amended petition, with the assistance of appointed PCR counsel, claiming

that his plea counsel and private counsel were ineffective in failing to provide

him with discovery and failing to conduct a "a sufficient pre-trial investigation."

Defendant also renewed the claim he advanced in his Slater motion, i.e., that

plea counsel pressured him to plead guilty because he was concerned his

godmother's children would be removed from her custody if he did not admit

ownership of the gun seized from his bedroom.

      Following oral argument on December 21, 2016, the PCR judge denied

defendant's petition in a comprehensive oral decision. In doing so, the PCR

judge reviewed defendant's plea colloquy and the claims he asserted in his Slater

motion. The judge also set forth the legal authority pertaining to PCR petitions,

and applied that authority to defendant's contentions.

      Initially, the judge determined most of defendant's claims against plea

counsel were procedurally barred because they were "essentially the same

claims raised in defendant's motion to withdraw his plea." 1 Citing Rule 3:22-3,

which provides that "PCR is not a substitute for a direct appeal," the judge


 1 R. 3:22-4. Although it is unclear from our January 14, 2014 order affirming
the trial court's judgment, during oral argument at his excessive sentencing
appeal, defendant sought a remand regarding the denial of his Slater motion.
Nonetheless, we have considered defendant's arguments on the merits, here, as
did the PCR judge.
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further found defendant "could have appealed the denial of the motion to

withdraw his guilty plea to the Appellate Division but failed to do so."

      Nonetheless, the PCR judge considered, in great detail, the merits of

defendant's claims against plea counsel and private counsel. In particular the

judge recognized defendant "failed to present any competent evidence[] . . . that

his attorneys performed deficiently or that he suffered legal prejudice from

counsel's alleged unreasonable acts or omission." She then addressed each of

defendant's claims.

      For example, the PCR judge found plea counsel's failure to file motions

to suppress evidence and defendant's statement "comport[ed] with [counsel's]

sound and effective trial strategy." Defendant "failed to articulate any facts to

substantiate his claim that [plea counsel] should have filed these motions." The

PCR judge also reiterated the motion judge's findings set forth above, noting

defendant's claims concerning coercion were "previously litigated in the context

of the motion to withdraw his [guilty] plea." Nonetheless, the PCR judge found

defendant's claims lacked merit because defendant would have been exposed to

a lengthy prison sentence had he exercised his right to trial on the certain persons

charge.




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        Noting the gun was seized pursuant to a search warrant, and finding

defendant failed to articulate any facts that would demonstrate his motion s

would have been successful, the PCR judge found:

                    Even in the context of an ineffective assistance of
              counsel claim, a defendant still bears the burden of
              demonstrating that his Fourth Amendment claim is
              meritorious, [State v.] Goodwin, . . . 173 N.J. [583,] 597
              [(2002)], State v. Fisher,  156 N.J. 494, 501 (1988). See
              also Kimmelman v. Morrison,  477 U.S. 365, 384
              (1986). "Failure to file a suppression motion does not
              constitute per se ineffective assistance of counsel."

Rather, the judge concluded "defendant's bald assertion[s] of innocence are in

direct conflict with [his] sworn statement to [the plea judge]" generally

acknowledging his guilt and specifically indicating the gun was seized from his

bedroom, and "he put it there."

        Further, the PCR judge determined defendant did not present any support

for his claim that counsel was ineffective for failing to seek a drug program for

defendant. In particular, defendant did not provide proof that he was qualified

for a drug program or that such a program was available. However, the judge

recognized defendant could petition the court for a change in custodial sentence

after he completes his mandatory term of parole ineligibility.  2 The PCR judge


 2
    R. 3:21-10(b)(1).
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                                          8
also found the record belied defendant's contention that plea counsel "reviewed

discovery with [him]."

      Finally, the PCR judge found defendant's bald assertions neither

established a prima facie case of ineffective assistance of counsel nor a

likelihood of success on the merits.       Accordingly, the judge exercised her

discretion pursuant to Rule 3:22-10 and denied defendant's request for a hearing.

This appeal followed.

      On appeal, defendant raises the following points for our consideration :

            POINT I

            THE DEFENDANT WAS DENIED EFFECTIVE
            ASSISTANCE OF COUNSEL AS GUARANTEED
            BY THE SIXTH AMENDMENT TO THE UNITED
            STATES CONSTITUTION AND ART[ICLE I],
            PAR[AGRAPH] 10 OF THE NEW JERSEY
            CONSTITUTION.

            A. The Trial Attorneys Failed to Provide the Defendant
            with a Complete Defense.

            B. The Plea Agreement is Null and Void Because the
            Defendant Was Pressured To Enter a Guilty Plea
            without Having Sufficient Knowledge About the Facts
            of His Case.

            POINT II

            THE DEFENDANT IS ENTITLED                     TO     AN
            EVIDENTIARY HEARING.


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            POINT III

            PROCEDURAL BARS DO NOT APPLY.

                                       II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose,  129 N.J. 451, 459 (1992). Pursuant to Rule

3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was

a "[s]ubstantial denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or laws of the State of

New Jersey."

      "[A] defendant asserting ineffective assistance of counsel on PCR bears

the burden of proving his or her right to relief by a preponderance of the

evidence." State v. Gaitan,  209 N.J. 339, 350 (2012). A defendant must prove

counsel's performance was deficient; it must be demonstrated that counsel' s

handling of the matter "fell below an objective standard of reasonableness" and

that "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v.

Washington,  466 U.S. 668, 687-88 (1984); State v. Fritz,  105 N.J. 42, 52 (1987)

(adopting the Strickland two-part test in New Jersey).




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      A defendant must also prove counsel's "deficient performance prejudiced

the defense." Strickland,  466 U.S.  at 687. Prejudice is established by showing

a "reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id. at 694. Thus, petitioner must

establish that counsel's performance was deficient and petitioner suffered

prejudice in order to obtain a reversal of the challenged conviction. Id. at 687;

Fritz,  105 N.J. at 52.

      Further, the mere raising of a claim for PCR does not entitle the defendant

to an evidentiary hearing. State v. Cummings,  321 N.J. Super. 154, 170 (App.

Div. 1999). Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a prima facie

claim of ineffective assistance, material issues of disputed facts lie outside the

record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State

v. Porter,  216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion. See Preciose,

 129 N.J. at 462. We review any legal conclusions of the trial court de novo.

State v. Nash,  212 N.J. 518, 540-41 (2013); State v. Harris,  181 N.J. 391, 419

(2004).




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      While, as noted, we disagree with the PCR judge that defendant's claims

were barred procedurally, the judge astutely rejected defendant's claims on the

merits, giving due deference to counsel's strategy.      Here, that strategy was

specifically designed to limit defendant's sentencing exposure by obtaining a

favorable plea agreement encompassing four open indictments, including

weapons and drug offenses. As the PCR judge recounted, there was ample

evidence in the record that counsel negotiated a plea agreement that was

reasonable in light of defendant's sentencing exposure for the certain persons

offense. Indeed, plea counsel successfully negotiated for that sentence to run

concurrently to three separate drug counts in three different indictments.

      We are satisfied from our review of the record that defendant failed to

demonstrate a prima facie showing of ineffectiveness of counsel under the

Strickland/Fritz test. We therefore discern no abuse of discretion in the denial

of defendant's PCR petition, and affirm primarily for the reasons set forth in the

PCR judge's well-reasoned opinion.          The judge correctly concluded an

evidentiary hearing was not warranted. See Preciose,  129 N.J. at 462-63.

      Affirmed.




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