STATE OF NEW JERSEY v. HANIF K. GWALTNEY

NOT FOR PUBLICATION WITHOUT THE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-4520-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HANIF K. GWALTNEY,

     Defendant-Appellant.
_______________________

                   Submitted October 20, 2021 – Decided November 5, 2021

                   Before Judges Fuentes and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Accusation No. 18-04-0323.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Abby P. Schwartz, Designated Counsel, on
                   the brief).

                   Robert J. Carroll, Morris County Prosecutor, attorney
                   for respondent (Tiffany M. Russo, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Hanif Gwaltney appeals from an order denying his post-

conviction relief (PCR) petition and his request to withdraw his guilty plea. We

affirm.

      On January 30, 2018, a police officer stopped and searched defendant's

car. The officer found in the car's interior an orange pill container with no

prescription label.   The pill container held sixty-nine pills believed to be

oxycodone but were later determined to be caffeine pills. With defendant's

consent, the officer searched the trunk of the car and found a loaded .40 caliber

handgun.

      Pursuant to a negotiated agreement with the State, defendant pleaded

guilty to third-degree distribution, possession, or manufacture of an imitation

controlled dangerous substance (CDS) in violation of  N.J.S.A. 2C:35-11(a)(3)

and second-degree being a certain person not permitted to possess weapons in

violation of  N.J.S.A. 2C:39-7(b)(1). The court sentenced defendant to a five-

year imprisonment term on the imitation CDS charge and a concurrent five-year

imprisonment term with a five-year period of parole ineligibility for the certain

persons offense.

      Defendant filed pro se a PCR petition, which his counsel later

supplemented. Defendant argued he should be allowed to withdraw his plea and


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that his trial counsel was ineffective in: not challenging the five-year parole

ineligibility on the certain-persons offense; misadvising him regarding the

Graves Act,  N.J.S.A. 2C:43-6(c); not challenging the sentence imposed; not

arguing for a dismissal of the distribution charge; pressuring him to plead guilty

without having meaningful conversations with him or providing him with

discovery; failing to argue vigorously mitigating factors; and failing to explore

drug-court participation.

      In a written decision and corresponding order, the PCR judge denied

defendant's PCR petition and request for permission to withdraw his plea. The

judge found defendant had not established a prima facie case of ineffective

assistance of counsel under the two-prong test established by Strickland v.

Washington,  466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz,  105 N.J. 42 (1987). The PCR judge also concluded defendant had

made a knowing, intelligent, and voluntary decision to plead guilty, amply

supported by the record of the plea hearing.

      Defendant raises the following arguments on appeal:

            POINT I

            THE TRIAL COURT ERRED IN FINDING THAT
            DEFENDANT    WAS  NOT    ENTITLED   TO
            EVIDENTIARY HEARINGS ON BOTH HIS
            MOTION TO WITHDRAW HIS GUILTY PLEA AND

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            HIS PETITION FOR POST-CONVICTION RELIEF
            BASED ON INEFFECTIVE ASSISTANCE OF
            COUNSEL.      DEFENDANT'S   RIGHTS   TO
            COUNSEL, A FAIR TRIAL, AND DUE PROCESS
            WERE VIOLATED.

                  A. The Court Erred In Failing To Grant An
                  Evidentiary Hearing For The Motion To
                  Withdraw Defendant's Guilty Plea.

                  B. Defendant Was Denied His Right To
                  Effective Assistance Of Counsel In These
                  Plea And Sentencing Proceedings.

      We find no legal or factual basis to conclude the PCR judge erred in

denying defendant's PCR petition and request for permission to withdraw his

plea. Defendant's arguments lack sufficient merit to warrant further discussion

in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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