STATE OF NEW JERSEY VS. TRAVIS WILSON (14-06-0887, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2502-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TRAVIS WILSON, a/k/a
TRAVIS R. WILSON, JR.,
RAHIEM JONES,
TRAVIS R. WILLIAMS,
and STREETS WILSON,
Defendant-Appellant.
__________________________
Submitted November 12, 2020 – Decided December 15, 2020
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 14-06-0887.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anthony J. Vecchio, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Edward F. Ray, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Travis Wilson appeals from the December 11, 2018 Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
We derive the following facts from the record. Members of the
Hackensack Police Department conducted a narcotics investigation that
included controlled buys by an undercover officer. On December 17, 2013 and
January 30, 2014, defendant sold cocaine to an undercover officer in exchange
for cash.
On June 25, 2014, a Bergen County grand jury returned an indictment
charging defendant with the following offenses: two counts of third-degree
distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1)
and 2C:35-5(b)(3) (counts one and three); three counts of third-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(1) (counts two, four, and five); and
one count of second-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and
2C:35-5(b)(3) (count six).
On November 10, 2014, defendant pleaded guilty to the two counts of
third-degree distribution of CDS in exchange for a recommended sentence of a
five-year term with a twenty-four-month period of parole ineligibility pursuant
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to the Brimage guidelines,1 and dismissal of the remaining four counts. The plea
form indicated that the parties were "trying to resolve another pre-indictment"
Passaic County charge "but no promises" had been made that the sentences "will
be concurrent."
During the plea hearing, defendant testified that on December 17, 2013
and January 30, 2014, he purposefully and knowingly distributed cocaine to an
individual later identified as an undercover police officer in exchange for
money.
In response to questions posed by the court, defendant testified that he
reviewed the plea forms with counsel, was satisfied that counsel answered his
questions, initialed each page of the plea forms and signed it because he was, in
fact, guilty of the offenses, and that he had no questions for the court or his
attorney.
1
The Brimage Guidelines, originally adopted by the Attorney General in 1998
pursuant to State v Brimage, 153 N.J. 1 (1998), provide uniform plea agreement
guidelines "intended to regulate a defendant's exposure to mandatory minimum
terms of imprisonment" in drug cases. Cannel, N.J. Criminal Code Annotated,
cmt. 1 on N.J.S.A. 2C: 35-12 (2020). The Guidelines were revised in 2004.
Attorney General Law Enforcement Directive 2004-2, Revised Attorney
General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12 (Rev.
2004), https://www.nj.gov/oag/dcj/agguide/directives/brimagerevision.htm.
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Defendant further testified that he was pleading guilty voluntarily without
any promises being made other than what was written on the plea forms. He
acknowledged that he was waiving his right to a jury trial, the right to present
witnesses, and the right to cross-examine the State's witnesses. Defendant
confirmed that the State would be recommending a five-year term with a twenty-
four-month period of parole ineligibility and specified mandatory penalties.
During the hearing, defense counsel noted "there was an open Passaic
County matter we are going to try to resolve along with this one if possible."
Counsel "want[ed] to see if that can be resolved along with this case if possible."
The following colloquy ensued:
THE COURT: But he understands there's no promises
Passaic County will run this concurrent[ly]. Whatever
they do, they do. That has nothing to do with this case.
Knowing that you still want to plead guilty, correct?
MR. WILSON: Yes.
Defendant made no comments and asked no questions regarding the Passaic
County charge or the other Bergen County charges during the hearing.
On February 13, 2015, defendant was sentenced in accordance with the
terms of the plea agreement to concurrent five-year terms with twenty-four-
month periods of parole ineligibility. The remaining counts were dismissed.
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The court found that defendant "ha[d] a significant juvenile record going
back to 2002" and two prior adult convictions, all of which involved CDS. The
court found the following aggravating factors: three (risk of reoffending),
N.J.S.A. 2C:44-1(a)(3); six (prior criminal record), N.J.S.A. 2C:44-1(a)(6); and
nine (need for deterrence), N.J.S.A. 2C:44-1(a)(9). The court also found
mitigating factor eleven (imprisonment would cause excessive hardship),
N.J.S.A. 2C:44-1(b)(11). Although the court considered defendant's "youthful
status," it did not give much weight to this factor due to his numerous encounters
with the criminal system. The court concluded that the aggravating factors
substantially outweighed the mitigating factors.
The court noted that defendant had other charges pending in Bergen
County that were awaiting arraignment or a future court date. Defendant did not
file a direct appeal.
On November 14, 2017, defendant filed a timely pro se petition for PCR.
Counsel was appointed to represent him. Defendant claimed trial counsel
provided ineffective assistance by failing to seek a global resolution of his
pending indictments during plea negotiations, resulting in an excessive sentence.
In his April 30, 2018 certification, defendant alleged that trial counsel provided
ineffective assistance by: (1) pressuring defendant to plead guilty despite
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knowing he had four other pending indictments; (2) refusing to provide
defendant with full discovery and telling him to "just plead guilty"; and (3)
failing to re-examine his case when she learned that defendant's investigation
had been carried out by officers, including Detective Mark Gutierrez, who were
later arrested and fired for conducting warrantless searches. Gutierrez was fired
in February 2018, as a result of his involvement in a 2016 warrantless search of
an apartment in Hackensack having no connection to defendant.
On August 28, 2018, the PCR court heard oral argument and reserved
judgment. The court issued a December 11, 2018 order and twenty-two-page
written opinion denying the petition. The court found that defendant was not
entitled to an evidentiary hearing because he failed to establish a prima facie
claim of ineffective assistance of counsel.
As to defendant's claim that counsel was ineffective by failing to secure a
global plea offer encompassing the other four Bergen County matters, the court
noted that trial counsel "did attempt to secure some type of assurance from the
trial [c]ourt that the sentence for defendant-appellant's pending Passaic County
matter would run concurrent with his Bergen County sentence." The trial court
noted it could not promise that this would occur. With regard to the other four
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Bergen County matters, the PCR court found "those four matters were never part
of any plea deal with the State."
The court determined that defendant "ha[d] not shown how he was
adversely affected by going forward with the plea . . . prior to resolving the other
four pending Bergen County matters." It found defendant did not "provide a
reasonable probability" that his sentences on those other matters "would have
been different." The court concluded that "[m]erely assuming one would receive
a more favorable result based on subsequent proceedings does not create a
factual inference that . . . not seeking a global plea" was "an unreasonable
professional strategy." Accordingly, defendant did not "overcome the
presumption[] that trial counsel's strategy was sound and reasonably
professional." The court further concluded that defendant did "not satisfy his
burden of showing there is a reasonable probability that the results of the
proceeding would have been different had trial counsel sought a global plea." It
noted that sentencing courts are not mandated to "give a more favorable sentence
to defendants who elect to seek a global plea."
The court next addressed defendant's claim that trial counsel refused to
provide him with discovery and pressured him to plead guilty to crimes he did
not commit. The court found the allegations were not supported by the record.
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The court found that defendant's claim that trial counsel refused to provide
him with discovery and forced him to plead guilty was "unfounded and
speculative." It noted that defendant did not specify the discovery he lacked.
For example, he did not allege that he requested but did not receive laboratory
reports analyzing the substances he sold to the undercover officer. The court
concluded that his allegations were "vague, conclusory and speculative" and did
not establish a prima facie case.
As to defendant's claim of innocence, the court noted that defendant
admitted selling drugs on two occasions as part of a "detailed, fact-specific
allocution" during the plea hearing. The court labeled the allegations "a thinly-
veiled attempt . . . to create a material issue of disputed fact" that was "directly
contradicted by the record below."
The court also rejected defendant's claim that counsel was ineffective
because she should have investigated Gutierrez, who was subsequently arrested
and terminated from employment (due to an unrelated warrantless search of an
apartment having no connection to defendant). The court explained that
defendant did not claim that the undercover drug buys involved an illegal
warrantless search. It concluded that defendant had not shown that Gutierrez's
"truthfulness or credibility was at issue."
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Lastly, the court rejected defendant's argument that the cumulative effect
of trial counsel's alleged errors warranted an evidentiary hearing. It found there
was no individual or cumulative error establishing "a prima facie showing of
ineffective assistance of counsel." This appeal followed.
Defendant argues:
THE PCR COURT ERRED IN NOT GRANTING
DEFENDANT AN EVIDENTIARY HEARING
WHERE DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.
A. Trial counsel was ineffective for failing to
conduct an adequate pre-trial investigation.
B. Defendant's plea was not made knowingly and
voluntarily.
C. Trial counsel was ineffective for failing to
negotiate a global plea agreement on defendant's
behalf.
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). We review a judge's decision to deny a PCR
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petition without an evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992).
To establish a prima facie claim of ineffective assistance of counsel, the
defendant
must satisfy two prongs. First, he must demonstrate
that counsel made errors "so serious that counsel was
not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." An attorney's
representation is deficient when it "[falls] below an
objective standard of reasonableness."
Second, a defendant "must show that the
deficient performance prejudiced the defense." A
defendant will be prejudiced when counsel's errors are
sufficiently serious to deny him "a fair trial." The
prejudice standard is met if there is "a reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different."
A "reasonable probability" simply means a "probability
sufficient to undermine confidence in the outcome" of
the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in
original) (citations omitted) (quoting Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984)).]
"[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.
He must allege facts sufficient to demonstrate counsel's alleged substandard
performance." Cummings, 321 N.J. Super. at 170. The defendant must
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establish, by a preponderance of the credible evidence, that he is entitled to the
requested relief. State v. Nash, 212 N.J. 518, 541 (2013).
When a guilty plea is involved, a defendant must satisfy two criteria to set
aside the plea based on ineffective assistance of counsel. State v. Nuñez-Valdéz,
200 N.J. 129, 139 (2009). 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.'" Ibid. (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)).
Applying those standards, we affirm substantially for the reasons
expressed by the PCR judge in his comprehensive written opinion. We add the
following comments.
The PCR court's findings and conclusions are fully supported by the
record. It properly found that defendant did not show that counsel's performance
fell below an objective standard of reasonableness or that the alleged deficient
performance prejudiced the defense of the charges.
Trial counsel successfully negotiated a favorable plea agreement that
resulted in the dismissal of four of the six charges, including a second -degree
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offense, and the imposition of concurrent terms that each satisfied the Brimage
guidelines. Defendant did not demonstrate there was a reasonable probability
that but for counsel's error, he would not have pled guilty and would have
insisted on going to trial. Nor did he demonstrate that the discovery he sought
would have revealed a viable defense. Moreover, the evidence against defendant
was overwhelming. The grand jury found probable cause that defendant sold
cocaine to undercover police officers on three occasions over the course of three
months.
As to his claim that counsel should have negotiated a global plea
agreement, defendant understood that the plea deal he agreed to did not include
the other pending charges in Passaic and Bergen Counties. In addition,
defendant has not shown that the overall outcome would have been more
favorable as to this case if a global plea agreement was reached. Indeed, the
record does not even indicate the outcome of those other charges.
Defendant's claim that counsel was ineffective by failing to investigate
Gutierrez is baseless. The undercover sales in this matter occurred between
December 2013 and February 2014. Defendant pled guilty in November 2014
and was sentenced in February 2015. Gutierrez was fired because of a December
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2016 warrantless search of an apartment. Counsel could not investigate an event
that had not yet occurred.
To the extent that defendant contends that his sentence was excessive,
excessive sentencing claims are not cognizable on PCR; they must be raised on
direct appeal. State v. Hess, 207 N.J. 123, 145 (2011); State v. Acevedo, 205
N.J. 40, 45-46 (2011).
Under these circumstances, we discern no abuse of discretion in the denial
of defendant's PCR petition without an evidentiary hearing, as defendant failed
to present a prima facie claim of ineffective assistance of counsel.
Affirmed.
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