STATE OF NEW JERSEY v. TRAVIS 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NOT FOR PUBLICATION WITHOUT THE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
     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-2502-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TRAVIS WILSON, a/k/a
TRAVIS R. WILSON, JR.,
RAHIEM JONES,
TRAVIS R. WILLIAMS,
and STREETS WILSON,

     Defendant-Appellant.
__________________________

                   Submitted November 12, 2020 – Decided December 15, 2020

                   Before Judges Geiger and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 14-06-0887.

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

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Edward F. Ray, Assistant Prosecutor, of
                   counsel and on the brief).
PER CURIAM

      Defendant Travis Wilson appeals from the December 11, 2018 Law

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

evidentiary hearing. We affirm.

      We derive the following facts from the record.         Members of the

Hackensack Police Department conducted a narcotics investigation that

included controlled buys by an undercover officer. On December 17, 2013 and

January 30, 2014, defendant sold cocaine to an undercover officer in exchange

for cash.

      On June 25, 2014, a Bergen County grand jury returned an indictment

charging defendant with the following offenses: two counts of third-degree

distribution of a controlled dangerous substance (CDS),  N.J.S.A. 2C:35-5(a)(1)

and 2C:35-5(b)(3) (counts one and three); three counts of third-degree

possession of CDS,  N.J.S.A. 2C:35-10(a)(1) (counts two, four, and five); and

one count of second-degree distribution of CDS,  N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(3) (count six).

      On November 10, 2014, defendant pleaded guilty to the two counts of

third-degree distribution of CDS in exchange for a recommended sentence of a

five-year term with a twenty-four-month period of parole ineligibility pursuant

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to the Brimage guidelines,1 and dismissal of the remaining four counts. The plea

form indicated that the parties were "trying to resolve another pre-indictment"

Passaic County charge "but no promises" had been made that the sentences "will

be concurrent."

      During the plea hearing, defendant testified that on December 17, 2013

and January 30, 2014, he purposefully and knowingly distributed cocaine to an

individual later identified as an undercover police officer in exchange for

money.

      In response to questions posed by the court, defendant testified that he

reviewed the plea forms with counsel, was satisfied that counsel answered his

questions, initialed each page of the plea forms and signed it because he was, in

fact, guilty of the offenses, and that he had no questions for the court or his

attorney.




1
  The Brimage Guidelines, originally adopted by the Attorney General in 1998
pursuant to State v Brimage,  153 N.J. 1 (1998), provide uniform plea agreement
guidelines "intended to regulate a defendant's exposure to mandatory minimum
terms of imprisonment" in drug cases. Cannel, N.J. Criminal Code Annotated,
cmt. 1 on N.J.S.A. 2C: 35-12 (2020). The Guidelines were revised in 2004.
Attorney General Law Enforcement Directive 2004-2, Revised Attorney
General Guidelines for Negotiating Cases Under  N.J.S.A. 2C:35-12 (Rev.
2004), https://www.nj.gov/oag/dcj/agguide/directives/brimagerevision.htm.
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      Defendant further testified that he was pleading guilty voluntarily without

any promises being made other than what was written on the plea forms. He

acknowledged that he was waiving his right to a jury trial, the right to present

witnesses, and the right to cross-examine the State's witnesses.        Defendant

confirmed that the State would be recommending a five-year term with a twenty-

four-month period of parole ineligibility and specified mandatory penalties.

      During the hearing, defense counsel noted "there was an open Passaic

County matter we are going to try to resolve along with this one if possible."

Counsel "want[ed] to see if that can be resolved along with this case if possible."

The following colloquy ensued:

            THE COURT: But he understands there's no promises
            Passaic County will run this concurrent[ly]. Whatever
            they do, they do. That has nothing to do with this case.
            Knowing that you still want to plead guilty, correct?

            MR. WILSON: Yes.

Defendant made no comments and asked no questions regarding the Passaic

County charge or the other Bergen County charges during the hearing.

      On February 13, 2015, defendant was sentenced in accordance with the

terms of the plea agreement to concurrent five-year terms with twenty-four-

month periods of parole ineligibility. The remaining counts were dismissed.



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      The court found that defendant "ha[d] a significant juvenile record going

back to 2002" and two prior adult convictions, all of which involved CDS. The

court found the following aggravating factors: three (risk of reoffending),

 N.J.S.A. 2C:44-1(a)(3); six (prior criminal record),  N.J.S.A. 2C:44-1(a)(6); and

nine (need for deterrence),  N.J.S.A. 2C:44-1(a)(9).       The court also found

mitigating factor eleven (imprisonment would cause excessive hardship),

 N.J.S.A. 2C:44-1(b)(11). Although the court considered defendant's "youthful

status," it did not give much weight to this factor due to his numerous encounters

with the criminal system. The court concluded that the aggravating factors

substantially outweighed the mitigating factors.

      The court noted that defendant had other charges pending in Bergen

County that were awaiting arraignment or a future court date. Defendant did not

file a direct appeal.

      On November 14, 2017, defendant filed a timely pro se petition for PCR.

Counsel was appointed to represent him.        Defendant claimed trial counsel

provided ineffective assistance by failing to seek a global resolution of his

pending indictments during plea negotiations, resulting in an excessive sentence.

In his April 30, 2018 certification, defendant alleged that trial counsel provided

ineffective assistance by:   (1) pressuring defendant to plead guilty despite


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knowing he had four other pending indictments; (2) refusing to provide

defendant with full discovery and telling him to "just plead guilty"; and (3)

failing to re-examine his case when she learned that defendant's investigation

had been carried out by officers, including Detective Mark Gutierrez, who were

later arrested and fired for conducting warrantless searches. Gutierrez was fired

in February 2018, as a result of his involvement in a 2016 warrantless search of

an apartment in Hackensack having no connection to defendant.

      On August 28, 2018, the PCR court heard oral argument and reserved

judgment. The court issued a December 11, 2018 order and twenty-two-page

written opinion denying the petition. The court found that defendant was not

entitled to an evidentiary hearing because he failed to establish a prima facie

claim of ineffective assistance of counsel.

      As to defendant's claim that counsel was ineffective by failing to secure a

global plea offer encompassing the other four Bergen County matters, the court

noted that trial counsel "did attempt to secure some type of assurance from the

trial [c]ourt that the sentence for defendant-appellant's pending Passaic County

matter would run concurrent with his Bergen County sentence." The trial court

noted it could not promise that this would occur. With regard to the other four




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Bergen County matters, the PCR court found "those four matters were never part

of any plea deal with the State."

      The court determined that defendant "ha[d] not shown how he was

adversely affected by going forward with the plea . . . prior to resolving the other

four pending Bergen County matters." It found defendant did not "provide a

reasonable probability" that his sentences on those other matters "would have

been different." The court concluded that "[m]erely assuming one would receive

a more favorable result based on subsequent proceedings does not create a

factual inference that . . . not seeking a global plea" was "an unreasonable

professional strategy."     Accordingly, defendant did not "overcome the

presumption[] that trial counsel's strategy was sound and reasonably

professional." The court further concluded that defendant did "not satisfy his

burden of showing there is a reasonable probability that the results of the

proceeding would have been different had trial counsel sought a global plea." It

noted that sentencing courts are not mandated to "give a more favorable sentence

to defendants who elect to seek a global plea."

      The court next addressed defendant's claim that trial counsel refused to

provide him with discovery and pressured him to plead guilty to crimes he did

not commit. The court found the allegations were not supported by the record.


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      The court found that defendant's claim that trial counsel refused to provide

him with discovery and forced him to plead guilty was "unfounded and

speculative." It noted that defendant did not specify the discovery he lacked.

For example, he did not allege that he requested but did not receive laboratory

reports analyzing the substances he sold to the undercover officer. The court

concluded that his allegations were "vague, conclusory and speculative" and did

not establish a prima facie case.

      As to defendant's claim of innocence, the court noted that defendant

admitted selling drugs on two occasions as part of a "detailed, fact-specific

allocution" during the plea hearing. The court labeled the allegations "a thinly-

veiled attempt . . . to create a material issue of disputed fact" that was "directly

contradicted by the record below."

      The court also rejected defendant's claim that counsel was ineffective

because she should have investigated Gutierrez, who was subsequently arrested

and terminated from employment (due to an unrelated warrantless search of an

apartment having no connection to defendant).           The court explained that

defendant did not claim that the undercover drug buys involved an illegal

warrantless search. It concluded that defendant had not shown that Gutierrez's

"truthfulness or credibility was at issue."


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      Lastly, the court rejected defendant's argument that the cumulative effect

of trial counsel's alleged errors warranted an evidentiary hearing. It found there

was no individual or cumulative error establishing "a prima facie showing of

ineffective assistance of counsel." This appeal followed.

      Defendant argues:

            THE PCR COURT ERRED IN NOT GRANTING
            DEFENDANT AN EVIDENTIARY HEARING
            WHERE DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE OF COUNSEL.

                  A. Trial counsel was ineffective for failing to
                  conduct an adequate pre-trial investigation.

                  B. Defendant's plea was not made knowingly and
                  voluntarily.

                  C. Trial counsel was ineffective for failing to
                  negotiate a global plea agreement on defendant's
                  behalf.

      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

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

 129 N.J. 451, 462 (1992).

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

defendant

            must satisfy two prongs. First, he must demonstrate
            that counsel made errors "so serious that counsel was
            not functioning as the 'counsel' guaranteed the
            defendant by the Sixth Amendment." An attorney's
            representation is deficient when it "[falls] below an
            objective standard of reasonableness."

                   Second, a defendant "must show that the
            deficient performance prejudiced the defense." A
            defendant will be prejudiced when counsel's errors are
            sufficiently serious to deny him "a fair trial." The
            prejudice standard is met if there is "a reasonable
            probability that, but for counsel's unprofessional errors,
            the result of the proceeding would have been different."
            A "reasonable probability" simply means a "probability
            sufficient to undermine confidence in the outcome" of
            the proceeding.

            [State v. O'Neil,  219 N.J. 598, 611 (2014) (alteration in
            original) (citations omitted) (quoting Strickland v.
            Washington,  466 U.S. 668, 687-88, 694 (1984)).]

      "[I]n order to establish a prima facie claim, [the defendant] must do more

than make bald assertions that he was denied the effective assistance of counsel.

He must allege facts sufficient to demonstrate counsel's alleged substandard

performance."    Cummings,  321 N.J. Super. at 170.          The defendant must


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establish, by a preponderance of the credible evidence, that he is entitled to the

requested relief. State v. Nash,  212 N.J. 518, 541 (2013).

      When a guilty plea is involved, a defendant must satisfy two criteria to set

aside the plea based on ineffective assistance of counsel. State v. Nuñez-Valdéz,

 200 N.J. 129, 139 (2009). The defendant must demonstrate that "(i) counsel's

assistance was not 'within the range of competence demanded of attorneys in

criminal cases'; and (ii) 'that 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.'"   Ibid. (alteration in original) (quoting State v.

DiFrisco,  137 N.J. 434, 457 (1994)).

      Applying those standards, we affirm substantially for the reasons

expressed by the PCR judge in his comprehensive written opinion. We add the

following comments.

      The PCR court's findings and conclusions are fully supported by the

record. It properly found that defendant did not show that counsel's performance

fell below an objective standard of reasonableness or that the alleged deficient

performance prejudiced the defense of the charges.

      Trial counsel successfully negotiated a favorable plea agreement that

resulted in the dismissal of four of the six charges, including a second -degree


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offense, and the imposition of concurrent terms that each satisfied the Brimage

guidelines. Defendant did not demonstrate there was a reasonable probability

that but for counsel's error, he would not have pled guilty and would have

insisted on going to trial. Nor did he demonstrate that the discovery he sought

would have revealed a viable defense. Moreover, the evidence against defendant

was overwhelming. The grand jury found probable cause that defendant sold

cocaine to undercover police officers on three occasions over the course of three

months.

      As to his claim that counsel should have negotiated a global plea

agreement, defendant understood that the plea deal he agreed to did not include

the other pending charges in Passaic and Bergen Counties.           In addition,

defendant has not shown that the overall outcome would have been more

favorable as to this case if a global plea agreement was reached. Indeed, the

record does not even indicate the outcome of those other charges.

      Defendant's claim that counsel was ineffective by failing to investigate

Gutierrez is baseless. The undercover sales in this matter occurred between

December 2013 and February 2014. Defendant pled guilty in November 2014

and was sentenced in February 2015. Gutierrez was fired because of a December




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2016 warrantless search of an apartment. Counsel could not investigate an event

that had not yet occurred.

      To the extent that defendant contends that his sentence was excessive,

excessive sentencing claims are not cognizable on PCR; they must be raised on

direct appeal. State v. Hess,  207 N.J. 123, 145 (2011); State v. Acevedo,  205 N.J. 40, 45-46 (2011).

      Under these circumstances, we discern no abuse of discretion in the denial

of defendant's PCR petition without an evidentiary hearing, as defendant failed

to present a prima facie claim of ineffective assistance of counsel.

      Affirmed.




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