STATE OF NEW JERSEY v. TYSHAWN WEBB

NOT FOR PUBLICATION WITHOUT THE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-2244-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TYSHAWN WEBB,

     Defendant-Appellant.
_________________________

                    Submitted February 27, 2019 – Decided March 21, 2019

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment Nos. 13-03-0634
                    and 13-05-1090.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Daniel S. Rockoff, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Charles C. Cho, Assistant Prosecutor, on
                    the brief).

PER CURIAM
      Defendant Tyshawn Webb appeals from a November 9, 2017 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      Defendant was charged in two separate indictments, stemming from two

incidents on different dates, with the following: armed robbery,  N.J.S.A. 2C:15-

1; robbery,  N.J.S.A. 2C:15-1; unlawful possession of a weapon,  N.J.S.A. 2C:39-

5(b); possession of a weapon for unlawful purpose,  N.J.S.A. 2C:39-4(a);

resisting arrest,  N.J.S.A. 2C:29-2(a); and aggravated assault,  N.J.S.A. 2C:12-

1(b)(2). Recognizing he risked potential imprisonment of up to thirty years in

prison on the two separate robbery charges alone, defendant entered into an

agreement with the state to plead guilty to first-degree robbery and second-

degree robbery with a total maximum exposure of ten years in prison.

      During the plea colloquy, defendant acknowledged he signed the plea

forms, he answered the questions on the forms honestly, no one threatened him

or made any promises in return for his guilty plea, and he was not under the

influence of any substance that would impair his ability to understand the p lea

proceeding. In addition, defendant stated he was satisfied with the services of

his attorney. Based on defendant's testimony during the plea colloquy, the judge

found defendant


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            understands the charges, has competent counsel, knows
            the maximum penalties. He admits to the charges. He
            entered the plea freely and voluntarily. He's voluntarily
            waived his right to a jury trial, self-incrimination. He's
            given us a factual basis.           He understands the
            consequences of parole ineligibility. He understands
            what the No Early Release Act is about . . . .

      The sentence was imposed by the same judge who conducted the plea

hearing. At sentencing, defense counsel asked the judge to sentence defendant

one degree lower and the judge explained why, in accordance with the law, he

was unable to do so. Defendant was sentenced in accordance with the negotiated

plea to ten years in prison on the first-degree robbery charge with an eighty-five

percent parole disqualifier pursuant to the No Early Release Act (NERA),

 N.J.S.A. 2C:43-72, and a concurrent eight years under NERA on the second-

degree robbery charge with the same eighty-five percent parole ineligibility.

      Defendant filed a PCR petition on May 8, 2017. In his petition, defendant

alleged ineffective assistance of counsel because defense counsel failed to

conduct any pretrial investigation; forced him to plead guilty; failed to file a

motion for a reduced sentence. Defense also alleged an insufficient factual basis

for his plea to first-degree robbery.

      In a written decision dated November 6, 2017, the PCR judge concluded

defendant failed to set forth facts that would support a claim of ineffective


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assistance of counsel beyond defendant's self-serving assertions. The judge

found "[t]here is no further elaboration as to how [defendant] was 'forced' to

plead guilty, how his counsel failed to conduct pretrial investigations, or that

there was an insufficient factual basis for his guilty plea."

      On the issue of defense counsel's purported failure to seek a more

favorable sentence, the PCR judge found defendant's argument was belied by a

review of the sentencing hearing transcript. During sentencing, defense counsel

requested the judge sentence defendant to a degree lower for the first-degree

robbery charge.     Thus, the PCR judge found defendant's argument was

"meritless."

      In rejecting defendant's argument regarding the voluntariness of his plea,

the PCR judge held "the trial court's plea colloquy with [defendant] plainly

addresses the charged offenses, [defendant's] understanding of the offenses, and

his constitutional right to a trial by jury." The PCR judge noted the plea hearing

judge emphasized "the consequences of accepting a guilty plea and [defendant's]

inability to take it back once entered." Based on a review of the guilty plea

transcript, the PCR judge concluded defendant's "plea was entered knowingly

and voluntarily."




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      On appeal, defendant raises the following argument:

             POINT I

             THE LAW DIVISION ERRED BY DENYING
             DEFENDANT'S PCR PETITION WITHOUT AN
             EVIDENTIARY HEARING.

                  A. THIS [C]OURT SHOULD REMAND FOR
             AN EVIDENTIARY HEARING ON DEFENDANT'S
             PCR PETITION.

                  B.   ALTERNATIVELY, THIS [C]OURT
             SHOULD     AT   LEAST   REMAND    FOR
             RECONSIDERATION SO THAT THE LAW
             DIVISION CAN MAKE RELEVANT FINDINGS OF
             FACT BEFORE DECIDING WHETHER AN
             EVIDENTIARY HEARING IS WARRANTED.

      According to defendant, an evidentiary hearing was required to determine

whether defense counsel was ineffective for advising defendant to plead guilty

without conducting any pretrial investigation. In addition, defendant contends

he is entitled to withdraw his guilty plea because it was neither knowing nor

voluntary.

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-part test enunciated in Strickland v. Washington

by demonstrating that: (1) counsel's performance was deficient, and (2) the

deficient performance actually prejudiced the accused's defense.  466 U.S. 668,

687 (1984); see also State v. Fritz,  105 N.J. 42, 58 (1987).

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                                       5
      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must demonstrate a reasonable likelihood of succeeding under the

Strickland/Fritz test.   See State v. Preciose,  129 N.J. 451, 463 (1992). A

defendant "must do more than make bald assertions[,] . . . [and] must allege facts

sufficient to demonstrate counsel's alleged substandard performance." State v.

Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999). In the context of a guilty

plea, a defendant is required to show "there is a reasonable probability that, but

for counsel's errors, [the defendant] would not have pled guilty and would have

insisted on going to trial." State v. DiFrisco,  137 N.J. 434, 457 (1994) (alteration

in original) (quoting Hill v. Lockhart,  474 U.S. 52, 59 (1985)).

      The PCR judge noted a complete absence of any information to support

defendant's ineffective assistance of counsel claim.        Defendant offered no

evidence that had his defense counsel conducted a more thorough pretrial

investigation, defendant would have elected to proceed to trial rather than enter

a guilty plea.

      Defendant faced a potential sentence of thirty years in prison on the

robbery charges alone.      By entering a guilty plea, defendant received a

substantially lesser sentence.     All other charges against defendant were

dismissed. We discern no basis to disturb the PCR judge's determination that


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defendant failed to make a prima facie case of ineffective assistance of counsel

if counsel advised defendant to plead guilty.

      Nor does the record support defendant's request to withdraw his plea

because it was not knowing and voluntary. At the plea hearing, defendant

expressly stated he understood his rights, waived his right to a jury trial,

acknowledged the maximum penalties that could be imposed, admitted to the

charges, and was satisfied with his attorney's services. The record demonstrates

defendant unequivocally waived his rights and entered his plea knowingly and

voluntarily. We are satisfied defendant failed to establish a prima facie case of

ineffective assistance of counsel because his plea was knowing and voluntary.

      Since defendant failed to make a prima facie showing of ineffective

assistance of counsel, no evidentiary hearing was required. Preciose,  129 N.J.

at 462-63.

      Affirmed.




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