STATE OF NEW JERSEY v. VINCENT D. BANKS

NOT FOR PUBLICATION WITHOUT THE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-4458-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VINCENT D. BANKS,
a/k/a RYHIM JOHNSON,

     Defendant-Appellant.
______________________________

                   Submitted November 12, 2020 – Decided December 9, 2020

                   Before Judges Fuentes and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 13-10-1416.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique Moyse, Designated Counsel, on the
                   brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Jaimee M. Chasmer, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Vincent D. Banks appeals from an April 24, 2019 order

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

hearing. We affirm, substantially for the reasons stated by Judge Frances A.

McGrogan in her thorough and well-reasoned written opinion.

      We discern the following facts from the record. On February 27, 2013,

defendant possessed a shotgun without having a firearms purchaser's

identification card (FPIC). On March 5, 2013, he distributed heroin to an

undercover detective, and on March 15, 2013, defendant possessed a Ruger

handgun even though he was previously convicted of federal distribution or

possession with intent to distribute heroin.

      Defendant was charged with third-degree possession of a shotgun without

first obtaining an FPIC,  N.J.S.A. 2C:39-5(c)(1) (count one); fourth-degree

unlicensed sale of a shotgun,  N.J.S.A. 2C:39-9(d) (count two); third-degree

distribution of heroin,  N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count three);

third-degree possession of heroin,  N.J.S.A. 2C:35-10(a)(1) (count four); first-

degree knowingly maintaining or operating a heroin manufacturing facility,

 N.J.S.A. 2C:35-4 (count five); third-degree possession with intent to distribute

drug paraphernalia,  N.J.S.A. 2C:36-3 (count six); second-degree possession of

a handgun while committing a drug offense,  N.J.S.A. 2C:39-4.1(a) (count


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seven); and second-degree possession of a firearm while having previously been

convicted of distribution and possession with intent to distribute heroin in

federal court,  N.J.S.A. 2C:39-7(b) (count eight).

       In June 2014, defendant pled guilty to third-degree possession of a

shotgun without first obtaining an FPIC card on February 27, 2013,  N.J.S.A.

2C:39-5(c)(1) (count one); third-degree distribution of heroin on March 5, 2013,

 N.J.S.A. 2C:35-5(a)(1) and  N.J.S.A. 2C:35-5(b)(3) (count three); and second-

degree possession of a firearm on March 15, 2013, while having been previously

convicted of distribution and possession with intent to distribute heroin in

federal court,  N.J.S.A. 2C:39-7(b) (count eight). In exchange for his plea, the

State agreed to recommend an aggregate sentence of fifteen years'

imprisonment, subject to eight years of parole ineligibility. The plea agreement

was based upon defendant receiving consecutive sentences for the three crimes

and mandatory parole disqualification bars relative to the firearms offenses

under the Graves Act,  N.J.S.A. 2C:39-5(b),  N.J.S.A. 2C:43-6(c).

       The plea court found defendant freely and voluntarily admitted he was

previously convicted in federal court of a drug distribution offense .1 He did not

possess an FPIC for his Moss Burke shotgun on February 27, 2013, and fully


1
    U.S. v. Vincent D. Banks, No. 4:CR-06-132.
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                                        3
understood his plea agreement and provided truthful answers. The plea court

also credited defendant's testimony that his trial attorney answered all his

questions to his satisfaction.

      Thereafter, defendant retained new counsel and filed a motion to withdraw

his guilty plea. On the return date of the motion, defendant absconded and was

not located for approximately five to six months, prompting his new counsel to

withdraw from the case.

      At the sentencing hearing scheduled in January 2016, defendant's third

attorney appeared and represented that after conferring with defendant, he was

withdrawing his motion to retract the plea.       Defense counsel argued for

concurrent sentences contrary to the terms of the plea agreement. Nonetheless,

the sentencing court imposed consecutive sentences in accordance with the plea

agreement, finding the three crimes were "separate and distinct."

      Defendant appealed his sentence through the summary review process

codified under Rule 2:9-11. The matter came before this court for oral argument

on September 21, 2016. Appellate counsel for defendant contended that his

sentence on the possession of a shotgun was illegal because no parole bar was

mandated for a Graves Act violation under  N.J.S.A. 2C:39-5(c), and the




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sentencing court did not give sufficient reasoning to impose consecutive

sentences under State v. Yarbough,  100 N.J. 627 (1985).

      With the consent of counsel, we removed the matter to the plenary

calendar to allow the parties to formally brief the Graves Act issues. While the

appeal was pending, the parties negotiated a new plea agreement through which

defendant was resentenced to a five-year term of imprisonment. The Criminal

Part judge executed an amended judgment of conviction.           The appeal was

dismissed with prejudice on November 29, 2017.

      On June 8, 2018, defendant filed a pro se PCR petition alleging his

appellate counsel was ineffective for stipulating to a dismissal of his direct

appeal because in addition to raising the issue of an illegal sentence, his direct

appeal also addressed the alleged impropriety of imposing consecutive

sentences. Further, defendant argued his trial counsel was ineffective for failing

to communicate, review discovery, or consult with him during plea negotiations.

After hearing oral argument on April 12, 2019, Judge McGrogan found

defendant's arguments were belied by the record and she denied defendant's PCR

petition without an evidentiary hearing. A memorializing order accompanied

by a written opinion was entered on April 24, 2019.

      On this appeal, defendant presents the following arguments:


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                                        5
            POINT ONE

            THIS MATTER MUST BE REMANDED FOR
            FINDINGS OF FACT AND CONCLUSIONS OF
            LAW ON MR. BANKS' CLAIM THAT TRIAL
            COUNSEL       RENDERED          INEFFECTIVE
            ASSISTANCE. (Not Raised Below).

            POINT TWO

            MR. BANKS IS ENTITLED TO AN EVIDENTIARY
            HEARING ON HIS CLAIM THAT HIS APPELLATE
            ATTORNEY       RENDERED      INEFFECTIVE
            ASSISTANCE BY DISMISSING HIS DIRECT
            APPEAL AND THAT HIS TRIAL ATTORNEY
            RENDERED INEFFECTIVE ASSISTANCE OF
            COUNSEL FOR FAILING TO COMMUNICATE,
            CONSULT, OR REVIEW DISCOVERY, ALL OF
            WHICH    LED     TO   HIS   INADEQUATE
            REPRESENTATION        DURING        PLEA
            NEGOTIATIONS.

Having canvassed the entire record presented to us, we conclude these

arguments lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We add the following comments.

      A defendant's claim of ineffective assistance of counsel is considered

under the standards established in Strickland v. Washington,  466 U.S. 668, 687

(1984), and adopted by our Supreme Court in State v. Fritz,  105 N.J. 42, 58

(1987). The Strickland test applies to challenges to guilty pleas based on alleged

ineffective assistance of counsel. Hill v. Lockhart,  474 U.S. 52, 58 (1985). A


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defendant must show that his or her attorney failed to provide advice that "was

within the range of competence demanded of attorneys in criminal cases." Id.

at 56 (quoting McMann v. Richardson,  397 U.S. 759, 771 (1970)). A defendant

also must show "there is a reasonable probability that, but for counsel's errors,

would not have pleaded guilty and would have insisted on going to trial." Id. at

59.

      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).

      "[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.

[The defendant] must allege facts sufficient to demonstrate counsel's alleged

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

must establish, by a preponderance of the credible evidence, that she is entitled

to the required relief. State v. Nash,  212 N.J. 518, 541 (2013).


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      We review a judge's decision to deny a PCR petition without an

evidentiary hearing for abuse of discretion. State v. Preciose,  129 N.J. 451, 462

(1992). Following our review of defendant's arguments in light of the record

and applicable legal principles, we are satisfied defendant's PCR petition was

properly denied without an evidentiary hearing for the reasons outlined by Judge

McGrogan in her comprehensive written opinion.

      Affirmed.




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