STATE OF NEW JERSEY v. DANTE SELBY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1785-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANTE SELBY, a/k/a
GIGGER, and SELBY TABOO,
Defendant-Appellant.
____________________________
Submitted March 9, 2022 – Decided March 21, 2022
Before Judges Whipple and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 17-01-0131,
and Accusation No. 18-05-0871.
Joseph E. Krakora, Public Defender, attorney for
appellant (Phuong V. Dao, Designated Counsel, on the
brief).
Cary Shill, Acting Atlantic County Prosecutor, attorney
for respondent (Kristen Pulkstenis, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Dante Selby appeals from the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. For the reasons that
follow, we decline to consider the arguments defendant raises for the first time
on appeal and otherwise affirm because defendant failed to establish a prima
facie showing of ineffective assistance of counsel.
We take the following facts from the record. An Atlantic County grand
jury returned a nine-count indictment charging defendant with: three counts of
third-degree possession of a controlled dangerous substance (CDS) (cocaine,
heroin, and MDMA, respectively), N.J.S.A. 2C:35-10(a)(1) (counts one, two,
and three); two counts of third-degree possession of CDS with intent to
distribute, N.J.S.A. 2C:35-5(a)(1) (cocaine and MDMA, respectively) (counts
four and five); second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b)(1) (count six); second-degree possession of a firearm while in the
course of committing a violation of N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:39-
4.1(a) (count seven); third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count eight); and second-degree certain persons
not to have firearms, N.J.S.A. 2C:39-7(b)(1) (count nine). A separate accusation
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charged defendant with third-degree possession of CDS with intent to distribute
(heroin), N.J.S.A. 2C:35-5(b)(3).
On May 31, 2018, defendant pled guilty to counts four and five of the
indictment and to the accusation after waiving his rights to indictment, remain
silent, and trial by jury. The plea agreement permitted defendant to apply to
Drug Court (now known as Recovery Court) and provided for a recommended
alternative sentence of concurrent six-year terms, subject to a three-year period
of parole ineligibility, on each count, forfeiture of $590, and dismissal of the
other seven counts. Defendant applied to Recovery Court and sentencing was
held in abeyance pending the outcome of that application.
During the plea hearing, defendant testified that he understood the terms
of the plea agreement, including the recommended sentence, that he was
satisfied with the advice he received from trial counsel, that no one forced,
threatened, or coerced him to plead guilty, and that he was guilty of the three
counts of possession of CDS with intent to distribute. He then provided an
adequate factual basis for his plea to each count. The court found defendant
entered the pleas freely, voluntarily, and knowingly and accepted the pleas.
As part of defendant's application to Recovery Court, defendant
underwent a Treatment Assessment Services for the Courts (TASC) evaluation
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by a Recovery Court substance abuse evaluator. 1 The TASC evaluation found
defendant was not a drug user, suffered from mild alcohol abuse, and
recommended that he not be admitted into Recovery Court.2 In response,
defendant moved for special probation under N.J.S.A. 2C:35-14, which provides
an alternate route to Recovery Court.
On April 12, 2019, the trial court heard argument on defendant's motion.
At the outset, trial counsel noted that the plea agreement was based upon
defendant's drug history and dependency. Counsel asserted that defendant pled
guilty so that he could "get in" Recovery Court. Counsel stated that he submitted
several TASC evaluations3 and claimed they showed that defendant was
"extremely drug dependent."
1
A TASC evaluation is a substance abuse assessment by a certified or licensed
substance abuse evaluator that is utilized to determine if an applicant is
clinically eligible for Recovery Court. "Following the evaluation, the substance
abuse evaluator must produce a written evaluation to determine the presence and
severity of a substance use disorder . . . and level of care" recommended.
ADMIN. OFF. OF THE CTS., N.J. STATEWIDE D RUG COURT MANUAL (Dec. 2020).
"TASC evaluations provide sentencing courts with 'the full measure of [the
defendant's] substance abuse history[,]'" State v. Harris, 466 N.J. Super. 502,
545 (App. Div. 2021) (alteration in original) (quoting State v. Clarke, 203 N.J. 166, 183 (2010)), and determine if the applicant is drug dependent and the
corresponding level of recommended treatment.
2
The record on appeal does not include the TASC evaluation.
3
The record on appeal also does not include these other TASC evaluations.
A-1785-20
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Counsel explained the discrepancy between the TASC evaluations was
because defendant "didn't fully understand the ramifications behind the TASC
evaluation," and when the evaluator asked him "questions pertaining to the
case[,] he didn't know" it was a "confidential conversation" that could not be
used against him at trial. Counsel asserted that misunderstanding led to
defendant's inaccurate answers during the evaluation, which resulted in the
TASC evaluation's conclusion that defendant was not drug dependent.
Counsel emphasized that at the time defendant was admitted to the county
jail, medical staff deemed defendant drug dependent, suffering from withdrawal,
and placed him in detoxification. The handwritten entries on the intake and
referral forms are only partially legible and somewhat equivocal. What is clear
is that defendant was referred for "drugs and alcohol." A physician prescribed
medication and issued orders to monitor defendant for a minimum of eight days.
One progress note indicated "[s]table drug withdrawal continue current
treatment plan." An alcohol/drug withdrawal evaluation form noted unstable
withdrawal on December 10 and stable drug withdrawal on December 14.
Undated "Medical Sheets and Flow Chart for Alcohol/Drug Program" prescribed
promethazine, an anti-vomiting medication, and indicated defendant had no
complaints on days three through eight of the detox. It appears to designate the
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withdrawal as from opioids. However, a health evaluation form asked: "Are you
currently detoxing?" and the box is checked "No." Another question asked:
"Have you had withdrawal problems in the past?" and the box is checked "No."
Defendant's behavior was marked "Appropriate" and he was approved for
general population.
Trial counsel essentially argued that defendant was both clinically and
legally eligible for Recovery Court and should have been admitted into the
program. He indicated defendant was willing to attend an inpatient
rehabilitation program.
During the motion hearing defendant interjected that he had "a really bad
pill problem" due to a herniated disc in his lower back. He stated he had been
"in and out of jail" and had violated probation and parole by using drugs. He
asserted that incarceration did not help him with his "drug addiction problem,"
he had never participated in a program, and when released from jail he resorts
to drugs.
The court denied defendant's motion and sentenced him that same day. In
its oral decision, the court noted that defendant told the TASC evaluator that "he
would get out of prison and return to selling drugs and always wind up back in
prison. Not using drugs, selling drugs." Defendant interjected that he "never
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said that." The court stated that although it released defendant from jail to obtain
another TASC evaluation, the assessment defendant obtained was "not a TASC
evaluation." It did not contain a narrative or a treatment recommendation.
Instead, it merely printed out the DSM-54 criteria used to diagnose addiction
disorders. The court determined that defendant was clinically ineligible for
Recovery Court.
As to sentencing, the judge noted defendant was married and had three
children. Twenty-eight arrests led to eighteen convictions, including five for
indictable crimes, and twelve for disorderly persons offenses. As a juvenile,
defendant incurred sixteen arrests and three delinquency adjudications.
The judge gave substantial weight to aggravating factors three (risk of re-
offense), N.J.S.A. 2C:44-1(a)(3); six (seriousness and extent of prior criminal
record), N.J.S.A. 2C:44-1(a)(6); and nine (need for general and specific
deterrence), N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors and
that the aggravating factors clearly and convincingly outweighed the non -
existent mitigating factors.
Defendant was sentenced in accordance with the plea agreement to three
concurrent six-year terms, subject to a three-year period of parole ineligibility,
4
D IAGNOSTIC AND STATISTICAL MANUAL OF MENTAL D ISORDERS (5th ed. 2013).
A-1785-20
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and forfeiture of $590. The remaining counts were dismissed. Defendant did
not move to withdraw his plea before or after sentencing and did not file a direct
appeal from his conviction or sentence.
Instead, defendant filed a pro se petition for PCR that claimed ineffective
assistance of trial counsel based on trial counsel's alleged failure to properly
investigate the case. PCR counsel was assigned to represent him. PCR counsel
argued that trial counsel was ineffective by: (1) failing to obtain and present
medical records relating to defendant's drug dependence, which would have
altered plea negotiations and sentencing; and (2) cumulative error by otherwise
failing to negotiate and argue for an appropriate sentence, especially relating to
Recovery Court eligibility. An evidentiary hearing was requested.
Counsel argued that despite both trial counsel and the trial court being
aware of defendant's drug dependency, the court determined that appropriate
documentation was not submitted to confirm defendant was drug dependent.
Counsel contended documentation showing past and current drug dependency
was available. Counsel asserted it was reasonably likely that the State and the
court would have agreed to a lower sentence with drug treatment that would
provide the requisite level of care and early probation if trial counsel had
properly negotiated and advocated for that result.
A-1785-20
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Regarding sentencing, counsel contended that while drug dependence is
not a mitigating factor, it should be fully considered in order to fashion an
appropriate sentence. Defendant requested a modification of his sentence with
credit for time served.
The PCR court heard oral argument on March 10, 2021. PCR counsel
argued that trial counsel failed to "submit the appropriate paperwork to Drug
Court" despite defendant's drug dependence. Counsel asserted that defendant
did "not have any violent convictions" and "would have been a good candidate
for Drug Court." He noted that defendant was being treated at the Bo Robinson
Assessment & Treatment Center. The State argued that the TASC evaluator
determined that defendant did not qualify for Drug Court because there was only
minor alcohol abuse. The State contended trial counsel could not be deemed
ineffective if defendant was not eligible for Recovery Court.
The PCR court denied the petition without an evidentiary hearing. In its
oral decision, the court reasoned that the denial of entry into Recovery Court
was because defendant was not clinically eligible, not because of ineffective
assistance of counsel. The court noted the TASC evaluation found only mild
alcohol abuse. It further noted that the charges were for "selling as opposed to
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using drugs" and that defendant "indicated he was prepared to do it again." 5 The
court concluded that defendant's submissions had been properly considered by
the Recovery Court.
This appeal followed. Defendant raises the following points:
POINT I
TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO SUBMIT DRUG ASSESSMENT AND
OTHER PAPERWORK IN SUPPORT OF DRUG
COURT AND/OR SPECIAL-PROBATION.
POINT II
DEFENDANT'S GUILTY PLEA WAS NOT
VOLUNTARILY, KNOWINGLY, AND
INTELLIGENTLY MADE.
POINT III
PCR AND TRIAL COUNSEL WERE INEFFECTIVE
FOR NOT FILING OR REQUESTING A DIRECT
APPEAL TO BE FILED ON DEFENDANT'S
BEHALF.
Under the Sixth Amendment of the United States Constitution, a criminal
defendant is guaranteed the effective assistance of legal counsel in his defense.
Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To establish a prima
5
The record reflects that defendant pled guilty to three counts of possession of
CDS with intent to distribute, not distribution.
A-1785-20
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facie claim of ineffective assistance of counsel, a defendant must satisfy the two-
part test enunciated in Strickland by demonstrating that: (1) counsel's
performance was deficient, and (2) the deficient performance actually
prejudiced the accused's defense. Id. at 687; accord State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the Strickland two-part test in New Jersey).
To meet the first prong, defendant must establish that his counsel "made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Defendant
must rebut the "strong presumption that counsel's conduct [fell] within the wide
range of reasonable professional assistance[.]" Id. at 689.
To satisfy the second prong, defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694.
When a guilty plea is involved, 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.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139
A-1785-20
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(2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457
(1994)).
Defendant argues he was entitled to an evidentiary hearing because there
were genuine issues of material fact in dispute. He contends that his assertion
that his guilty plea was coerced is supported because as soon as he entered the
guilty pleas, "he informed the State and the trial court that he would apply for
Drug Court[]." He further contends that trial counsel was aware of his arrests
and drug issues, which would qualify him for Drug Court, yet "trial counsel
failed to obtain and submit a proper and accepted drug assessment or TASC
evaluation."
Rule 3:22-10(b) provides:
A defendant shall be entitled to an evidentiary hearing
only upon the establishment of a prima facie case in
support of [PCR], a determination by the court that
there are material issues of disputed fact that cannot be
resolved by reference to the existing record, and a
determination that an evidentiary hearing is necessary
to resolve the claims for relief. To establish a prima
facie case, defendant must demonstrate a reasonable
likelihood that his or her claim, viewing the facts
alleged in the light most favorable to defendant, will
ultimately succeed on the merits.
In turn, Rule 3:22-10(c) provides: "Any factual assertion that provides the
predicate for a claim of relief must be made by an affidavit or certification . . .
A-1785-20
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based upon personal knowledge of the declarant before the court may grant an
evidentiary hearing."
Defendant's bare allegation that his plea was coerced was not supported
by an affidavit, certification, or other competent evidence. Defendant d id not
recount what counsel said to him or otherwise describe the nature or extent of
the purported coercion. Nor did he describe its impact upon him. Also absent
is any allegation that trial counsel misled him, made false promises, or provided
incorrect legal advice that led him to plead guilty.
With regard to counsel's alleged failure to obtain a TASC evaluation o r
acceptable substance abuse assessment, we note that defendant was found
clinically ineligible for Recovery Court because the information that defendant
himself provided to the TASC evaluator did not demonstrate that he was drug
dependent. Notably, defendant does not contend that trial counsel told him to
understate his drug abuse history, drug use leading up to his arrest, drug
dependence, or opiate withdrawal.
Notably, defendant did not present the PCR court with a TASC evaluation
or acceptable substance abuse assessment that met the requirements for
admission into Recovery Court. The jail medical unit records contained in the
confidential appendix fall far short of providing the necessary narrative of
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defendant's substance abuse history, then current level of drug usage and
dependency, and recommended treatment level.
Defendant bore the burden of establishing a prima facie claim. State v.
Gaitan, 209 N.J. 339, 350 (2012). To meet that burden, he had to "do more than
make bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim entitling him to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant's
unsupported claims did not present a prima facie case for PCR. Accordingly,
his argument that trial counsel was ineffective by failing to submit a TASC
evaluation or acceptable substance abuse assessment was properly denied
without an evidentiary hearing.
We next address defendant's argument that his plea was not made
voluntarily, knowingly, and intelligently. The transcript of the plea hearing
belies his argument.
During the plea hearing, defendant acknowledged that: he was satisfied
with the advice of trial counsel, who had reviewed the plea agreement with him;
his answers to the questions on the plea form were truthful; he understood the
terms of the plea agreement, including the recommended sentence; no one forced
him to plead guilty; he was pleading guilty to three counts of possession of CDS
A-1785-20
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because he was, in fact, guilty of those offenses, he was pleading guilty
voluntarily, and had no questions for the court. Defendant answered each
question clearly and without hesitation. He then provided a sufficient factual
basis for his plea to each of the three counts, acknowledging that he was
knowingly in possession of CDS with intent to distribute the drugs, which he
knew was illegal. Defendant admitted to being in possession of fifty bags of
heroin on two occasions. That quantity is consistent with an intent to distribute.
Lastly, in Point III, defendant argues for the first time on appeal that trial
counsel was ineffective by failing to file a direct appeal from the Recovery Court
denial. He claims he wanted to appeal that decision.
As a threshold matter, we will not consider this argument. This contention
was not presented to the PCR court for its review, despite defendant's
opportunity to do so in his pro se petition and his counseled brief. Nor was the
issue raised during oral argument before the PCR court. Moreover, defendant
did not submit a sworn statement in the form of an affidavit or certification, or
other competent evidence to the PCR court, or this court, in support of that
argument. See Cummings, 321 N.J. Super. at 170 (citing R. 1:6-6); see also R.
3:22-8 (requiring the petition to "set forth with specificity the facts upon which
the claim for relief is based, the legal grounds of complaint asserted, and the
A-1785-20
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particular relief sought"); R. 3:22-10(c) (requiring factual assertions that provide
the predicate for a PCR claim to be made by an affidavit or certification based
upon personal knowledge of the declarant).
"For sound jurisprudential reasons, with few exceptions, '[we] will decline
to consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available.'" State v. Witt, 223 N.J. 409,
419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Indeed, our
Supreme Court has long held appellate courts do not "consider questions or
issues not properly presented to the trial court when an opportunity for such a
presentation is available 'unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest.'" Nieder
v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co.
v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). "Generally, an appellate
court will not consider issues, even constitutional ones, which were not raised
below." State v. Galicia, 210 N.J. 364, 383 (2012).
Defendant's newly minted argument is not jurisdictional in nature and
does not substantially implicate the public interest. Moreover, the record is
insufficient to permit the adjudication of defendant's delayed challenge,
especially here, where defendant failed to support his bare assertions with a
A-1785-20
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previously filed sworn statement that "allege[s] facts sufficient to demonstrate
counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.
Because we review the PCR court's ruling in view of the record before us,
we decline to consider this belated, unsupported argument, which was not raised
before the PCR court.
Affirmed.
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