STATE OF NEW JERSEY v. JAHMEZ R. WALKER

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-1347-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAHMEZ R. WALKER,

     Defendant-Appellant.
________________________

                   Submitted November 4, 2021 – Decided November 17, 2021

                   Before Judges Alvarez and Haas.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment Nos. 13-07-0651
                   and 14-10-0912.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Marc A. Festa, Senior
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Jahmez Walker appeals from the September 4, 2018 Law

Division order denying his petition for post-conviction relief (PCR) following

an evidentiary hearing. We affirm.

      In two separate indictments, Passaic County grand juries charged

defendant with, among other offenses, fourth-degree criminal sexual contact,

 N.J.S.A. 2C:14-2(c), and second-degree sexual assault,  N.J.S.A. 2C:14-2(c)(4).

On April 23, 2015, defendant pled guilty in return for the State's agreement to

recommend that he be sentenced to time served, parole supervision for life, and

mandatory Megan's Law registration requirements.

      At the plea hearing, defendant provided a factual basis to the charge of

fourth-degree criminal sexual contact, admitting he touched the breasts of a

fifteen-year-old girl against her will for his own sexual gratification. Defendant

also testified that he was guilty of second-degree criminal assault because he

had intercourse with a fourteen-year-old girl at a time when he was almost

nineteen years old.

      During his plea colloquy, defendant further testified that he: understood

the nature of the charges against him; was pleading guilty because he was guilty;

wished to waive his right to a trial; was satisfied with the services of his attorney;

and had enough time to confer with his attorney.


                                                                                A-1347-18
                                          2
      Thereafter, the trial judge sentenced defendant in accordance with the

terms of his negotiated plea agreement to time served, 1 parole supervision for

life, and mandatory Megan's Law registration requirements. The judge also

advised defendant that he had forty-five days to appeal his conviction and

sentence, and five years to file a petition for PCR.

      Defendant did not file a direct appeal. However, he filed a timely petition

for PCR on September 29, 2017. In an affidavit accompanying his petition,

defendant alleged his trial counsel was ineffective because the attorney forced


1
  We note that the trial judge imposed a time-served sentence on defendant for
the charge of second-degree sexual assault charge under  N.J.S.A. 2C:14-2(c)(4).
This sentence was not in accord with the Criminal Code. At the time of
sentencing, defendant had 628 days of jail credit for this offense. However,
 N.J.S.A. 2C:43-6(a)(2) states that "a person who has been convicted of a
[second-degree] crime may be sentenced . . . for a specific term which shall be
fixed by the court and shall be between five years and [ten] years[.]" Although
 N.J.S.A. 2C:44-1(f)(2) states that a judge may sentence a person convicted of a
second-degree offense "to a term appropriate to a crime of one degree lower than
that for which the defendant was convicted[,]" that exception only applies if the
judge "is clearly convinced that the mitigating factors substantially outweigh
the aggravating factors and where the interest of justice demands[.]" Here, the
judge did not make these required findings and, in any event, the sentence fo r a
third-degree offense "shall be between three years and five years[.]"  N.J.S.A.
2C:43-6(a)(3). Thus, the time-served sentence of 628 days was improper.
However, we further note that defendant has served the custodial portion of his
sentence and the parties have not challenged the sentence on appeal. Under
these circumstances, we take no action concerning the length of the custodial
sentence, but remind trial courts, prosecutors, and defense counsel of the need
in future cases to structure plea agreements that meet the requirements of the
Criminal Code.
                                                                           A-1347-18
                                        3
defendant to accept the plea without advising him of the "personal

consequences." Subsequently, defendant certified his attorney did not: provide

him with all of the discovery in the file; "discuss [the] case in detail with [him]";

or "properly advise[ him] as to the plea itself."

      The trial judge conducted an evidentiary hearing on defendant's petition.

Defendant did not testify at the hearing and stated during a voir dire by his PCR

attorney that he wished to rely on the allegations he raised in his certification.

      The State called defendant's trial attorney, Michael J. Montanari, Esq.,

who refuted defendant's claim that he never provided discovery by producing a

copy of a letter he sent to defendant forwarding the discovery materials to him.

Montanari also submitted letters he sent to the jail scheduling at least two

appointments to meet with defendant in order to discuss the case. Montanari

testified he likely met with defendant on additional occasions when he was at

the jail to speak to other clients.

      Montanari reviewed the completed plea form with defendant, and denied

the claim he forced defendant to agree to the plea. Montanari testified he did

not remember all of the "specifics about the facts of the case[,]" and did not

recall whether there was any DNA evidence in the file. However, Montanari

stated he had never refused a client's request to take a case to trial.


                                                                              A-1347-18
                                         4
      Following the hearing, the judge rendered a written decision denying

defendant's petition for PCR. Based upon Montanari's credible testimony, the

judge found that Montanari "provided more than sufficient legal assistance [to

defendant] in this case." The judge explained:

            Defense counsel met with [defendant] multiple times
            and followed his normal practice of sharing discovery
            with criminal defendant clients.          Counsel also
            negotiated a favorable deal for [defendant] who was
            facing a potential sentence of eleven and a half years of
            incarceration and $25,000 in fines. Additionally,
            [defendant's] argument that he was not advised of the
            consequences of accepting the plea agreement are
            belied by the plea form he went over with . . . Montanari
            and his statements made on the record. Defense
            counsel and this court explained the exposure and
            consequences of the plea agreement to which
            [defendant]     responded     that   he     understood. []
            Additionally, the consequences of taking a plea were
            outlined on the plea form[] [and defendant]
            acknowledged he went over each and every question on
            the plea form with his attorney.

      On appeal, defendant raises the following contention:

            POINT ONE

            THE PCR COURT ERRED IN DENYING
            [DEFENDANT'S] PETITION FOR [PCR] AS
            ADDITIONAL    TESTIMONY    IS  NEEDED
            REGARDING MANY OF THE ISSUES RAISED,
            SUCH AS THE SUBSTANCE OF THE LEGAL
            ADVICE     GIVEN    TO    [DEFENDANT],
            SPECIFICALLY       REGARDING       HIS
            UNDERSTANDING      OF    THE    PENAL

                                                                         A-1347-18
                                        5
            CONSEQUENCES OF HIS GUILTY PLEA, AND
            WHAT DISCOVERY WAS MISSING AND ON
            WHAT INDICTMENT.   TESTIMONY IS ALSO
            NEEDED REGARDING HOW [DEFENDANT] FELT
            PRESSURED TO PLEAD GUILTY. (NOT RAISED
            BELOW).

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash,  212 N.J. 518, 541 (2013); State v. Preciose,  129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell,  126 N.J. 565, 579 (1992).

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

defendant must show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland v. Washington,  466 U.S. 668, 687 (1984); State v. Fritz,

 105 N.J. 42, 58 (1987). Under the first prong of this test, the defendant must

demonstrate that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Fritz,  105 N.J. at 58 (quoting Strickland,  446 U.S. at 687). Under the second

prong, the defendant must show "that counsel's errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable."     Ibid.

                                                                             A-1347-18
                                        6
(quoting Strickland,  466 U.S. at 687). That is, "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 60-61 (quoting Strickland,  446 U.S. at 694).

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland,  446 U.S.  at 690. Further, because prejudice is not

presumed, Fritz,  105 N.J. at 52, a defendant must demonstrate with "reasonable

probability" that the result would have been different had he received proper

advice from his trial attorney. Strickland,  466 U.S.  at 694.

      Where, as here, the judge conducts an evidentiary hearing, we must

uphold the judge's factual findings, "'so long as those findings are supported by

sufficient credible evidence in the record.'" State v. Rockford,  213 N.J. 424,

440 (2013) (quoting State v. Robinson,  200 N.J. 1, 15 (2009)). Additionally, we

defer to a trial judge's findings that are "substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy."        Ibid. (alteration in original)

(quoting Robinson,  200 N.J. at 15).




                                                                            A-1347-18
                                        7
      On appeal, defendant argues he should be given another opportunity to

demonstrate the validity of his claims at a new hearing. However, he provides

no basis for granting him a second bite at the proverbial apple.

      As stated above, the burden of proof in a PCR proceeding rests upon

defendant. Here, defendant presented a certification in support of his claims but

refused the opportunity to expand upon his allegations at the evidentiary

hearing.

      Montanari produced documentation that he sent all the discovery in the

file to defendant, and met with him on at least two occasions at the

jail. Montanari reviewed the plea form with defendant and explained it to

him. Contrary to his present claims, defendant testified at the plea hearing that

he understood the nature of the charges he faced, conferred with Montanari, and

wished to waive his right to trial. He also provided a factual basis for each

offense.

      Under these circumstances, defendant's claims are mere "bald assertions"

that the trial judge properly found insufficient to satisfy defendant's burden of

proof. See State v. Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999)

(holding that the defendant "must do more than make bald assertions that he was

denied the effective assistance of counsel.").


                                                                           A-1347-18
                                        8
Affirmed.




                A-1347-18
            9