STATE OF NEW JERSEY VS. JOHN L. WILLIAMS, JR. (12-03-0677 AND 13-06-1587, OCEAN COUNTY AND STATEWIDE)

S
                            NOT FOR PUBLICATION WITHOUT THE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-3317-18

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

JOHN L. WILLIAMS, JR.,

     Defendant-Appellant.
________________________

                Submitted January 21, 2021 – Decided May 12, 2021

                Before Judges Sumners and Mitterhoff.

                On appeal from the Superior Court of New Jersey, Law
                Division, Ocean County, Indictment Nos. 12-03-0677
                and 13-06-1587.

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

                Bradley D. Billhimer, Ocean County Prosecutor,
                attorney for respondent (Samuel J. Marzarella, Chief
                Appellate Attorney, on the brief).

PER CURIAM
        Defendant John Williams, Jr., appeals from an order of the Law Division

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

hearing. We affirm substantially for the reasons set forth in Judge Guy P. Ryan's

thoughtful and thorough written opinion. We add only the following comments.

        A jury found defendant guilty of second-degree eluding, N.J.S.A. 2C:29-

2(b). Before he was sentenced, defendant plead guilty to charges arising under

a separate indictment, to third-degree possession of heroin with intent to

distribute within a school zone, N.J.S.A. 2C:35-7(a), third-degree possession of

cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3), third-degree

possession of Oxycodone with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

(b)(5), third-degree possession of Suboxone with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and (b)(13), third-degree possession of Alprazolam with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(13), and fourth-degree possession of

marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(12). (4T5:7-

6:2).

        Defendant's jury conviction arose from his attempt to flee from a police

officer while operating a Toyota Camry. Defendant was initially observed by

Manchester Township Police Officer Adam Guker traveling east on Route 571

at approximately twenty miles per hour in a fifty-mile-per-hour zone.


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                                        2
Immediately after Guker passed the Camry in his patrol car, defendant made a

left, crossing three lanes of traffic, onto a side street. Guker briefly lost sight of

the vehicle, and when he caught sight of it again, activated his overhead lights.

Defendant did not pull over. As the Camry approached Route 571, Guker

activated his siren. After failing to heed a stop sign, defendant turned right onto

Route 571. He traveled down Route 571 for a short distance before making a

right onto another side street. Defendant traveled about halfway down the block,

in the wrong lane, before coming to a stop on the left side of the road.

      Defendant was ordered out of the vehicle, handcuffed, and searched. A

razor blade wrapped in duct tape was discovered in his back pocket. After

verifying his credentials, Guker learned defendant's license was suspended and

the vehicle was not registered in his name. Backup arrived shortly after the stop

was initiated. Officer Danny Barker noticed the Camry's front end appeared to

be damaged.      After retracing defendant's route of travel, he discovered a

damaged chain link fence near the road. Barker spoke to the homeowner at that

address, who indicated that the fence was not damaged when he went to bed the

night before. The officers concluded defendant ran into the fence while out of

Guker's view. Defendant was arrested and issued thirteen traffic citations.




                                                                               A-3317-18
                                          3
      While awaiting trial, defendant was pulled over by an officer of the Toms

River Police Department for failing to use a turn signal, N.J.S.A. 39:4-81,

driving with a suspended license, N.J.S.A. 39:3-40, and failing to heed a stop

sign, N.J.S.A. 39:4-144.     A search of defendant revealed that he was in

possession of cocaine, Alprazolam, Oxycodone, heroin, marijuana, and

Suboxone. Defendant was arrested and issued three traffic citations.

      Defendant pled not guilty to the eluding charge, opting to go to trial. At

trial, the State presented the testimony of Guker and Barker, as well as the owner

of the damaged fence. Portions of the video footage captured by Guker's dash-

camera were also played for the jury. At the close of the State's case, the trial

judge engaged in a lengthy colloquy with defendant regarding his decision to

testify. The judge explained his rights and that the State would be permitted to

present evidence of his prior convictions to impeach his credibility.1 The judge

then granted a seventy-five-minute recess to allow defendant to confer with his




1
   Prior to trial, the judge ruled that if defendant testified, the State would be
permitted to introduce evidence of six of his prior convictions, including fourth-
degree failure to register as a sex offender, N.J.S.A. 2C:7-2(d), criminal
trespass, N.J.S.A. 2C:18-3, second-degree possession of a controlled dangerous
substance with intent to distribute within 500 feet of a public park, N.J.S.A.
2C:35-7.1, and three counts of third-degree possession of a controlled dangerous
substance, N.J.S.A. 2C:35-10.
                                                                            A-3317-18
                                        4
attorney. When the parties returned, defendant waived his right to testify. The

following day, the jury convicted him of eluding.

        Once convicted, defendant pled guilty, pursuant to a negotiated

agreement, to six of the seventeen drug-related offenses. In exchange for his

guilty plea, the State recommended an aggregate eight-year term of

incarceration on the drug-related charges with a three-year period of parole

ineligibility pursuant to the Brimage Guidelines,2 for count six—possession of

heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-5(a)(1) and

(b)(3). The judge carefully explained the maximum penal exposure and fines

associated with each of the charges. The judge explicitly noted the three-year

period of parole ineligibility included in the State's offer. Defendant confirmed

that he understood his rights, the charges, and the potential penal exposure he

faced, before defense counsel elicited a factual basis for the plea. The judge

found the plea was freely and voluntarily entered.

        On September 19, 2014, defendant was sentenced to a ten-year term of

incarceration with a three-year period of parole ineligibility on the eluding

conviction.      He was also sentenced, in accordance with the State's

recommendation, to an aggregate eight-year term of incarceration with a three-


2
    State v. Brimage, 

153 N.J. 1

(1998); see also N.J.S.A. 2C:43-6(f).
                                                                           A-3317-18
                                         5
year period of parole ineligibility on the drug-related convictions. On direct

appeal, this court affirmed defendant's eluding conviction and sentence. State

v. Williams, No. A-1289-14 (App. Div. July 15, 2016) (slip op. at 4). The

Supreme Court denied certification. State v. Williams, 

228 N.J. 80

(2016).

      On December 22, 2016, defendant filed a pro se petition for PCR.

Defendant's pro se petition raised the following arguments:

            POINT I

            [DEFENDANT] WAS DENIED THE EFFECTIVE
            ASSISTANCE OF COUNSEL GUARANTEED BY
            BOTH THE [SIXTH] AMENDMENT OF THE
            UNITED STATES CONSTITUTION AND ARTICLE
            [ONE] PARAGRAPH [TEN] OF THE NEW JERSEY
            STATE CONSTITUTION[] DUE TO TRIAL
            COUNSEL'S FAILURE TO FOLLOW THROUGH
            WITH SUPPRESSION MOTION.

            POINT II

            [DEFENDANT] WAS DENIED THE EFFECTIVE
            ASSISTANCE OF COUNSEL GUARANTEED BY
            BOTH THE [SIXTH] AMENDMENT OF THE
            UNITED STATES CONSTITUTION AND ARTICLE
            [ONE] PARAGRAPH [TEN] OF THE NEW JERSEY
            STATE CONSTITUTION[] DUE TO TRIAL
            COUNSEL'S FAILURE [TO] REVIEW OR INFORM
            DEFENDANT OF PLEA OPTIONS, SEEK [A]
            FAVORABLE PLEA, OR CHALLENGE THE
            VALIDITY OF THE PLEA OFFERED BY THE
            STATE.

            POINT III

                                                                        A-3317-18
                                       6
[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY
BOTH THE [SIXTH] AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE
[ONE] PARAGRAPH [TEN] OF THE NEW JERSEY
STATE CONSTITUTION[] DUE TO TRIAL
COUNSEL'S ALLOWANCE OF AN ILLEGAL
EXTENDED TERM.

POINT IV

[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY
BOTH THE [SIXTH] AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE
[ONE] PARAGRAPH [TEN] OF THE NEW JERSEY
STATE CONSTITUTION[] DUE TO TRIAL
COUNSEL'S FAILURE TO CHALLENGE THE
MISAPPLICATION OF MANDATORY MINIMUM
SENTENCING GUIDELINES, AND [ITS] DUE
PROCESS.

POINT V

THE [BRIMAGE] PLEA OFFERED BY THE STATE
WAS VINDICTIVE, AND IN VIOLATION OF . . .
DUE PROCESS GUARANTEED BY BOTH THE
[FIFTH] AND [FOURTEENTH] AMENDMENT OF
THE UNITED STATES CONSTITUTION[] AND
ARTICLE [ONE] OF PARAGRAPH [ONE] OF THE
NEW JERSEY STATE CONSTITUTION.

POINT VI

[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY
BOTH THE [SIXTH] AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE

                                            A-3317-18
                    7
[ONE] PARAGRAPH [TEN] OF THE NEW JERSEY
STATE CONSTITUTION[] DUE TO TRIAL
COUNSEL'S FAILURE TO CHALLENGE THE
WEAKNESSES AND THE VALIDITY OF ARREST[]
INCLUDING THE REFUSAL TO PLACE NEW
PROBATION SENTENCE ON RECORD WITH
COURT.

POINT VII

[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY
BOTH THE [SIXTH] AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE
[ONE] PARAGRAPH [TEN] OF THE NEW JERSEY
STATE CONSTITUTION[] DUE TO TRIAL
COUNSEL[]    COERCING   DEFENDANT    TO
INVOLUNTARILY ACCEPT A PLEA, FAILING TO
INFORM CLIENT OF SERIOUS CHARGES IN
[THE] PLEA, AND FAILING TO INFORM
DEFENDANT OF HIS EXPOSURE TO THE STATE'S
PETITION TO REFUSE PAROLE.

POINT VIII

[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED BY
BOTH THE [SIXTH] AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARTICLE
[ONE] PARAGRAPH [TEN] OF THE NEW JERSEY
STATE CONSTITUTION[] DUE TO TRIAL
COUNSEL'S FAILURE TO PETITION THE COURT
FOR A PSYCHIATRIST TO EXAMINE/EVALUATE
DEFENDANT TO ESTABLISH THAT HE WAS
COMPETENT TO ENTER A GUILTY PLEA, AND
FAILING TO OBTAIN A COMPLETE COPY OF
DEFENDANT'S MENTAL HEALTH RECORDS,
DIAGNOSES, MEDICATIONS HE WAS TAKING,

                                           A-3317-18
                   8
            AND HIS BEING HOUSED ON THE SPECIAL
            NEEDS UNIT OF THE COUNTY JAIL. 3


On September 17, 2018, defendant's assigned counsel filed a supplemental brief.

On January 11, 2019, Judge Ryan denied defendant's petition without an

evidentiary hearing.

      On appeal, defendant raises the following arguments for our

consideration:

            POINT I

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING
            BECAUSE TESTIMONY IS NEEDED REGARDING
            THE    CIRCUMSTANCES        SURROUNDING
            [DEFENDANT'S] DECISION TO PLEAD GUILTY
            UNDER INDICTMENT [No.] 13-06-1587.

            POINT II

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING
            BECAUSE TESTIMONY IS NEEDED REGARDING
            TRIAL   COUNSEL'S FAILURE TO HAVE
            DEFENDANT TESTIFY ON HIS OWN BEHALF AT
            TRIAL UNDER INDICTMENT [No.] 12-03-0677.


3
  All of the issues raised in defendant's pro se petition were comprehensively
addressed in Judge Ryan's well-reasoned decision and were rejected as without
merit. After careful review of the record, we agree and therefore find
defendant's pro se arguments do not warrant further discussion in a written
opinion. R. 2:11-3(e)(2).
                                                                         A-3317-18
                                      9
      Where, as here, the PCR judge "did not hold an evidentiary hearing on the

claim defendant now raises on appeal, we 'conduct a de novo review.'" State v.

Jackson, 

454 N.J. Super. 284

, 291 (App. Div. 2018) (quoting State v. Harris,

181 N.J. 391

, 421 (2004)); see also State v. Blake, 

444 N.J. Super. 285

, 294

(App. Div. 2016). The decision to proceed without an evidentiary hearing is

reviewed for abuse of discretion. State v. Brewster, 

429 N.J. Super. 387

, 401

(App. Div. 2013) (citing State v. Marshall, 

148 N.J. 89

, 157-58 (1997)). A

"[d]efendant must demonstrate a prima facie case for relief before an evidentiary

hearing is required, and the court is not obligated to conduct an evidentiary

hearing to allow defendant to establish a prima facie case not contained within

the allegations in his PCR petition." State v. Bringhurst, 

401 N.J. Super. 421

,

436-37 (App. Div. 2008).

      It is virtually axiomatic that in order for defendant to obtain relief based

on ineffective assistance grounds, he is obliged to show not only the particular

manner in which counsel's performance was deficient, but also "that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Strickland v. Washington, 

466 U.S.

668

, 694 (1984); accord State v. Fritz, 

105 N.J. 42

, 58 (1987). A defendant must

make those showings by presenting "more than bald assertions that he [or she]


                                                                             A-3317-18
                                       10
was denied the effective assistance of counsel." State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999).            We are persuaded that the alleged

deficiencies here clearly fail to meet either the performance or prejudice prongs

of the Strickland test.

      Defendant's argument that counsel failed to adequately prepare him to

decide whether to accept a plea offer is belied by the record. At the plea hearing,

both the prosecutor and the judge informed defendant of the recommended

sentence he faced under the terms of the plea agreement:

             [PROSECUTOR]: Judge, I would note the
             recommendation on this case is [eight] years[s] New
             Jersey State Prison over a [thirty-six]-month period of
             parole ineligibility pursuant to Brimage guidelines,
             N.J.S.A. 2C:43-6[(f)], on [c]ount [six], concurrent to all
             other counts in this indictment.

             [4T5:7-11.]

             [THE COURT]: Okay. Additionally, [the prosecutor],
             on behalf of the State, is recommending to the [c]ourt
             at the time of sentencing that you receive on this charge
             an [eight]-year New Jersey State[] Prison sentence with
             a [thirty-six]-month parole ineligibility on [c]ount [six]
             concurrent to all other counts in this indictment and that
             it is . . . open[-]ended to the second-degree trial verdict
             for the eluding charge without any sentence
             recommendation.

             Do you understand all of that?

             [DEFENDANT]: Yes.

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                                        11
            Q: Any questions about that at all?

            A: No.

                  ....

            Q: Okay. Now you've had enough time over the period
            that we've been dealing with these cases to talk to
            [defense counsel]; is that correct?

            A: Yes.

            Q: And you've gone over in this case all of the
            discovery and the evidence in this case with her;
            correct?
            A: Yes.

      Defendant's bald assertion that he was inadequately counseled about his

decision to plead guilty to the drug charges is clearly unsupported, and, in fact,

contradicted by the record.

      Similarly, the record is fatal to defendant's bald assertion that his trial

counsel pressured him to waive his right to testify. Significantly, prior to his

waiver, the trial judge afforded defendant seventy-five minutes to confer with

trial counsel regarding his decision.       When defendant returned, the judge

conducted the following colloquy:

            THE COURT: And, [defendant], have you made a
            conscious decision with respect to testifying in this
            case?
            [DEFENDANT]: Yes.


                                                                            A-3317-18
                                       12
            THE COURT: All right. And did you have a full and
            fair opportunity to make that decision after discussing
            this with your attorney, [defense counsel]?

            [DEFENDANT]: Yes, I did.

            THE COURT: You do understand, as I explained to
            you before, that you have a constitutional right not to
            testify at this hearing?

            DEFENDANT: I do.
                ....

            THE COURT: Has anyone threatened you or forced
            you in making your decision as to whether you want to
            testify?

            [DEFENDANT]: No.

            THE COURT: You're doing so of your own free will?

            [DEFENDANT]: Yes, I am.

            THE COURT: All right. And what, if I [may] ask,
            what is your decision as far as your giving testimony or
            not giving testimony?

            [DEFENDANT]: To waive my right to testify.

      The record clearly illustrates that defendant made a knowing and

voluntary decision not to take the stand. See State v. Ball, 

381 N.J. Super. 545

,

557 (App. Div. 2005) (rejecting a Strickland claim where, "regardless of whether

defendant was advised by counsel, the trial judge fully explained defendant's



                                                                           A-3317-18
                                      13
right to testify, the possible consequences of his choice and the option to have

the jury instructed to draw no inference from defendant's choice not to testify").

      Defendant's argument that his trial counsel failed to introduce evidence of

his intoxication on Seroquel at the time of the eluding offense, allegedly

rendering him unaware the officer was attempting to pull him over, is another

bald assertion, unsupported by medical or other evidence, that does not warrant

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

      Affirmed.




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                                       14

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