STATE OF NEW JERSEY v. ANTONIO BELL-WINTERS

NOT FOR PUBLICATION WITHOUT THE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 internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4060-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANTONIO BELL-WINTERS, a/k/a
ANTONIO WINTERS,

     Defendant-Appellant.
______________________________

              Submitted January 8, 2018 – Decided January 22, 2018

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              07-03-0756.

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

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (John J. Santoliquido,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        This post-conviction relief ("PCR") matter returns from the

trial court, following an evidentiary hearing we ordered in our
2015 unpublished opinion.     State v. Bell-Winters, No. A-2843-13

(App. Div. June 5, 2015).     After considering the testimony and

other evidence adduced at that evidentiary hearing, the court

concluded that defendant Antonio Bell-Winters had not met his

burden of demonstrating his former trial attorney deprived him of

the effective assistance of counsel.    Defendant now appeals that

determination.   We affirm.

     We incorporate by reference the background detailed in our

prior opinion.   Briefly summarized, defendant pled guilty in 2008

to aggravated manslaughter.      The record shows that defendant

fatally shot the victim, following an argument about his dating

relationship with the victim's former girlfriend.

     The State initially charged defendant with murder.   Pursuant

to a negotiated plea agreement, the murder charge was downgraded

to first-degree aggravated manslaughter, a crime which calls for

a sentencing range of ten to thirty years in prison.      
N.J.S.A.

2C:11-4(c).   The sentence would be subject to the minimum parole

ineligibility period mandated by the No Early Release Act ("NERA"),


N.J.S.A. 2C:43-7.2.

     As specified in the written plea agreement, the State agreed

to recommend to the court that defendant's prison term not exceed

twenty-two years.     Defendant, meanwhile, would be free to argue

at sentencing for the minimum term of ten years.    Ultimately, the

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judge at sentencing imposed a twenty-year term, subject to NERA

parole ineligibility requirements.

     In his PCR application, defendant contends his trial attorney

had advised him and his mother before sentencing that he would not

receive a custodial term of more than fifteen or sixteen years,

because the judge had reportedly said at a conference with counsel

that he was intending to impose a sentence "in the mid range."

The parties dispute what was meant by the word "mid range" in this

context. Defendant insists that it signified the expected sentence

would be at approximately the midpoint of the ten-year statutory

minimum and the negotiated plea cap of twenty-two years, i.e.,

approximately sixteen years.    The State conversely maintains the

sentence was expected to be around the midpoint between the ten-

year statutory minimum and the thirty-year statutory maximum for

aggravated manslaughter, i.e., twenty years, which is what the

sentencing judge imposed.

     Although the trial court initially denied defendant's PCR

petition without an evidentiary hearing, we directed the court to

conduct such a hearing on remand, in order to address the factual

dispute concerning the "midpoint" issue.    Bell-Winters, slip op.

at 8-10.   We further asked the trial court to explore whether, but

for trial counsel's alleged error in forecasting the anticipated

sentence, defendant would have been likely to have rejected the

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plea offer and risked an even greater exposure at trial.     Bell-

Winters, at 9.

     Judge Michael J. Blee, the PCR judge on remand,1 conducted

two days of evidentiary hearings in January and February 2016.

Defendant's former trial attorney and defendant himself testified.

     Trial counsel acknowledged in his testimony that he had told

defendant that the court's likely sentence was sixteen years or

less.   However, counsel also maintained he told defendant the

judge would nevertheless have the discretion to impose a sentence

of up to twenty-two years.      Judge Blee found the attorney's

testimony on these points "honest, non-evasive, and responsive."

     Defendant testified that his trial counsel advised him the

likely sentence would be fifteen to sixteen years.     Judge Blee

found defendant credible on that specific point.     However, the

judge did not find defendant credible in respect of his claim

that, in retrospect, he would not have agreed to the plea offer

if he had known that NERA would require him to serve actual

custodial time of approximately eighteen years of a twenty-year

sentence.

     Notably, when defendant was asked at the evidentiary hearing

if he would have gone to trial if he had known he was going to


1
  A different judge had previously dismissed the PCR petition
without a hearing.

                                4                          A-4060-15T1
receive    a   twenty-year     sentence,   defendant   testified    ".    .   .

honestly.      I don't know.    I would have had to discuss it with my

family."        That   equivocal     testimony    conflicted       with   the

certification defendant previously submitted in support of his PCR

petition, in which he insisted that he would not have accepted

such a plea bargain.

     As Judge Blee pointed out, if the State had not entered into

the plea agreement, defendant would have faced up to a life

sentence if he were convicted of first-degree murder.              The judge

was unpersuaded by defendant's present contention that he would

have had a potentially viable argument at trial to be found guilty

by a jury of only passion/provocation manslaughter.            As the judge

noted, that contention is undermined by the State's evidence of

defendant's argument with the victim earlier in the day of the

shooting, defendant's agreement to meet the victim later that same

day, defendant's arrival at the scene in possession of a handgun,

and other facets in the record.

     On the whole, Judge Blee concluded from the proofs at the

hearing that defendant was "completely aware of the consequences"

of his guilty plea, that his counsel had not been deficient, and

that it was not credible that defendant would have rejected the

plea if he had better appreciated his true sentencing exposure.



                                      5                              A-4060-15T1
    Defendant now appeals, arguing the following points in his

brief:

            POINT I

            THE TRIAL COURT MISAPPLIED THE LAW IN DENYING
            THE DEFENDANT'S PETITION FOR POST-CONVICTION
            RELIEF AFTER AN EVIDENTIARY HEARING WAS HELD
            TO ADDRESS HIS CONTENTION THAT HE WAS PROVIDED
            WITH INADEQUATE ASSISTANCE OF PLEA COUNSEL IN
            PLEA NEGOTIATIONS.

            POINT II

            THE TRIAL COURT MISAPPLIED THE LAW IN DENYING
            THE DEFENDANT'S PETITION FOR POST-CONVICTION
            RELIEF AS IT WAS REASONABLY PROBABLE HE WOULD
            HAVE REJECTED THE PLEA AND PROCEEDED TO TRIAL
            ON ALL CHARGES.

    We have duly considered these arguments in light of the

record, the applicable law, and the trial court's credibility

findings.    Having done so, we affirm the denial of defendant's PCR

petition, substantially for the sound reasons expressed in Judge

Blee's post-hearing written decision dated March 4, 2016.

    Only a few comments are warranted.              Defendant bore the burden

at the evidentiary hearing of establishing the two prongs of

ineffective    assistance   of   his       former   counsel:   (1)   deficient

performance; and (2) actual prejudice caused by counsel's errors

or omissions.      Strickland v. Washington, 
466 U.S. 668, 690-92

(1984).     We accept Judge Blee's well-reasoned determination that

defendant proved neither of these two required elements.


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     As an appellate court considering a post-hearing PCR denial,

our role "is necessarily deferential to [the trial] court's factual

findings based on its review of live witness testimony."           State

v. Nash, 
212 N.J. 518, 540 (2013).      Applying that deference here,

we have no hesitation in upholding Judge Blee's factual findings,

all of which have ample support in the record.

     In addition, we reject defendant's claim that the judge

misapplied the law.   To the contrary, our de novo review of the

judge's legal conclusions, id. at 540-41, reveal them to be

unassailable.    Neither   prong   of   the   well-established     legal

standard under Strickland was met here.

     In sum, the evidentiary hearing that defendant sought and

received provides no basis to set aside his guilty plea, nor his

conviction and sentence.    We therefore uphold the PCR judge's

ruling.

     Affirmed.




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