SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3538-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAR HOLMES, a/k/a 

JAMAR F. WILSON, and

KEVIN WILSON,

Defendant-Appellant.

_________________________

Submitted August 28, 2019 – Decided

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 11-08-1515.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the brief). 

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Tiffany M. Russo, 

Special Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief). 

NOT FOR PUBLICATION WITHOUT THE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.

September 25, 2019
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PER CURIAM

Defendant Jamar Holmes appeals from the January 10, 2018 Law Division 

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

evidentiary hearing. Having considered the arguments and applicable law, we 

affirm. 

Following a jury trial, defendant was convicted of murder and weapons 

offenses, stemming from defendant's fatal stabbing of the victim in a liquor 

store, equipped with video surveillance.

1

 Prior to the stabbing, defendant and 

the victim had been drinking and smoking marijuana most of the day at the home 

of a mutual friend, S.H. After appropriate mergers, defendant was sentenced to 

fifty-five years' imprisonment, subject to the No Early Release Act (NERA), 

N.J.S.A. 2C:43-7.2. In his direct appeal, we affirmed the convictions, but 

remanded for resentencing. State v. Holmes, No. A-0680-13 (App. Div. Mar. 2, 

2015), certif. denied, 222 N.J. 16 (2015). At the re-sentencing hearing, 

defendant was sentenced to forty years' imprisonment, subject to NERA. 

Defendant filed a timely petition for PCR, asserting ineffective assistance 

of trial counsel, among other things. In his supporting certification, focusing on 

 

1

 The surveillance footage depicting the stabbing was played repeatedly for the 

jury at trial.
3

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his third attorney, Ritchie Roberts, retained approximately one month prior to 

trial, defendant averred that Roberts misinformed him about his sentencing 

exposure and the admissibility of an exculpatory statement he made to S.H. the 

day after the fatal stabbing, resulting in his inability to fairly assess the plea 

offer. Specifically, according to defendant, Roberts advised him that if he "was 

convicted at trial, [he] should expect a sentence of [thirty] years with [eightyfive percent] parole ineligibility[,]" and that his statement to S.H., 

"demonstrat[ing] that [he] did not act purposely or knowingly when [he] stabbed 

[the victim,]" would be admitted at trial to support "[his] intoxication defense." 2 

Defendant continued that had he "known that [he] was exposed to a custodial 

 

2

 After the stabbing, defendant purportedly received a phone call from S.H., 

advising him that the victim had died, to which defendant replied that he thought 

he had just "hit him" or had "[j]ust poked him[.]" Prior to trial, the trial court 

excluded the statement, ruling that it did not qualify as a statement against 

interest under N.J.R.E. 803(c)(25). In his direct appeal, while we disagreed with 

the court's reasoning, we determined that "the statement was 'wholly 

exculpatory' and properly excluded, since 'a self-serving statement made after 

the commission of a crime provides too much opportunity for contrivance to 

warrant admission.'" Holmes, slip op at 9-10 (quoting State v. Gomez, 246 N.J. 

Super. 209, 215-16 (App. Div. 1991)). Nonetheless, we concluded that although 

the jury did not hear the statement, "which theoretically would have supported 

a finding of guilt on a lesser offense," because the jury "rejected the intoxication 

defense[,]" "the exclusion of the statement from the jury's consideration was not 

error[,]" but rather "inconsequential." Id. slip op. 11-12. 
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sentence of [fifty-five] years or even [forty] years," he would have accepted "the 

[twenty-five] year plea bargain offered by the State" and "pled guilty." 

The PCR court conducted "a limited evidentiary hearing to determine 

whether defendant's rejection of the plea offer was made knowingly and 

voluntarily." Although Roberts "was [un]available to testify at the evidentiary 

hearing," the court heard testimony from defendant and his two prior attorneys,

Sterling Kinsale and William Strauss, both of whom were presented by the State. 

Following the hearing, the court found all three witnesses "credible" "based on 

the [c]ourt's opportunity to hear and see the witnesses." 

As to Kinsale's testimony, the court made the following factual findings:

Mr. Kinsale is employed by the Office of the Public 

Defender, Trial Division, where he has been employed 

for [twenty-eight] years. Mr. Kinsale has worked 

exclusively in the homicide unit for the past [eleven]

years. Mr. Kinsale testified that he was assigned to 

defend [defendant] . . . . He further testified that during 

the course of his representation, he was able to discuss 

the possibility of a plea agreement with both the State 

and defendant. Mr. Kinsale testified that he discussed 

defendant's exposure, including the plea offer and the 

minimum and maximum exposure after conviction that 

defendant was facing. Mr. Kinsale testified that he 

approached the State with a lower offer, which was not 

accepted. After discussing the offer for [twenty-five]

years of imprisonment, defendant informed Mr. Kinsale

that he would like to speak with another attorney. Mr. 

Kinsale testified that he believed defendant understood 

the conversations that he had regarding his exposure. 
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At that time, the case was reassigned to Bill Strauss 

within the Office of the Public Defender.

After hearing Strauss' testimony, the court made the following factual 

findings:

Mr. Strauss is employed by the Office of the Public 

Defender, where he has worked for [twenty-eight]

years. Mr. Strauss testified that between October and 

November of 2012 he was assigned to defend 

[defendant]. Mr. Strauss met with defendant to explain 

the plea offer at some point within that time period. Mr. 

Strauss testified that defendant appeared to understand 

the plea offer, and they additionally discussed the 

evidence against defendant. Defendant received a copy 

of the discovery at that time from Mr. Strauss. Mr. 

Strauss also testified that in every case he is assigned 

to, he fills out a form with defendant regarding 

defendant's exposure, and although he was not able to 

locate that form before this hearing, Mr. Strauss 

believed that he and defendant went through the same 

steps he would have with any other trial. Finally, Mr. 

Strauss testified that during the course of his 

representation of defendant, the plea offer was [twentyfive] years incarceration, but he had attempted to obtain 

a better offer for his client. 

Finally, the court made the following factual findings regarding 

defendant's testimony:

Defendant testified that both Mr. Kinsale and Mr. 

Strauss discussed the plea offer with him, but he 

ultimately decided to go to trial with Richard Roberts. 

Defendant further testified that Mr. Roberts

communicated to him that his exposure was limited to 

[thirty] years incarceration, and that if they were to go 

to trial, [S.H.] would be permitted to testify regarding a 
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conversation he had with defendant the day following 

the murder.[3] Defendant believed that this statement 

supported his testimony at trial that he had no 

recollection of the murder and was surprised to learn 

that the victim had died. Defendant testified that Mr. 

Roberts went on vacation for two weeks before trial 

commenced and defendant did not have an opportunity 

to give him the complete discovery. Defendant testified 

that had he known that he would only have one meeting 

with Mr. Roberts before trial commenced, he would

have accepted the plea offer. On [c]ross[-]examination, 

defendant testified that he had discussed with both Mr. 

Kinsale and Mr. Strauss the plea agreement and his 

maximum exposure.[4] Additionally, defendant 

testified that at trial, he took the stand in his own 

defense and testified that he was intoxicated at the time 

of the murder, had no recollection of the murder and 

was surprised that the victim died. Defendant 

understood that the phone call conversation from the 

day after was ruled inadmissible at trial. 

In a January 10, 2018 written decision, the court rejected defendant's 

numerous contentions and denied relief.5 After applying the applicable legal 

 

3

 Indeed, on cross-examination, defendant acknowledged that both Strauss and 

Kinsale had also assured him that his statement to S.H. would be admitted at 

trial. 

4

 Defendant admitted knowing that his maximum sentencing exposure was life 

imprisonment.

5

 Specifically, in addition to rejecting defendant's claims that his trial counsel 

failed to provide accurate information regarding his penal exposure and the 

admission of his statement to S.H., the court rejected defendant's claims that he 

was denied effective assistance of counsel because trial counsel "was 
7

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principles, the court concluded defendant "failed to make out a prima facie case" 

of ineffective assistance of trial counsel to meet the two-pronged test set forth 

in Strickland v. Washington, 466 U.S. 668 (1984), which was later adopted by 

the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). The 

court expressly rejected defendant's claim that "he would have accepted the plea 

offer" had he "known the true extent of his [penal] exposure" or that his 

statement to S.H. would have been excluded. As to the former, defendant 

admitted knowing that his maximum sentencing exposure was life imprisonment

based on the advice of his previous attorneys. As to the latter, relying on our 

decision in the direct appeal, the court explained that because the jury "rejected" 

defendant's intoxication defense, rendering the exclusion of the statement 

"inconsequential," defendant could neither establish that Roberts' "performance 

fell below the practice and expectations of the legal community[,]" nor satisfy

the prejudice prong of the Strickland/Fritz test. The court entered a 

memorializing order and this appeal followed. 

 

unprepared for trial;" "failed to engage or consult a forensic expert to help 

present an intoxication defense;" and "failed to engage a forensic pathologist to 

review the medical examiner's findings on the cause of death[.]" Defendant 

abandoned these latter contentions on appeal.
8

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On appeal, defendant raises the following single point for our 

consideration:

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF BECAUSE DEFENDANT 

ESTABLISHED TRIAL COUNSEL MISADVISED 

HIM REGARDING HIS SENTENCE EXPOSURE 

AND MISLED HIM REGARDING S.H.'S 

STATEMENT BEING ADMISS[I]BLE; 

THEREFORE, THE MATTER SHOULD BE 

REMANDED BECAUSE ADDITIONAL 

TESTIMONY IS NEEDED FROM [ROBERTS].

 

"In reviewing a PCR court's factual findings based on live testimony, an 

appellate court applies a deferential standard[.]" State v. Pierre, 223 N.J. 560, 

576 (2015). Thus, we "will uphold the PCR court's findings that are supported 

by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540

(2013) (citing State v. Harris, 181 N.J. 391, 415 (2004)). A "PCR court's 

interpretation of the law," however, is afforded no deference, and is "reviewed 

de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415-16). "[F]or mixed 

questions of law and fact," we "give deference . . . to the supported factual 

findings of the trial court, but review de novo the lower court's application of 

any legal rules to such factual findings." Harris, 181 N.J. at 416 (citing State v. 

Marshall, 148 N.J. 89, 185 (1997)).
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To support a claim of ineffective assistance of counsel, a defendant "must 

prove, by a preponderance of the evidence, that (1) counsel performed 

deficiently, and made errors so serious that he or she was not functioning as 

counsel guaranteed by the Sixth Amendment; and (2) defendant suffered 

prejudice as a result." State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013) 

(citing Strickland, 466 U.S. at 687; State v. Preciose, 129 N.J. 451, 459 (1992)

(reciting preponderance of the evidence standard of proof)). See also Fritz, 105 

N.J. at 58. These principles extend to a criminal defense attorney's 

representation of an accused in connection with "the plea-bargaining process." 

Lafler v. Cooper, 566 U.S. 156, 162-63 (2012). 

To satisfy the first prong, "a defendant must overcome a 'strong 

presumption' that counsel exercised 'reasonable professional judgment' and 

'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J. 

123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). "No particular set of 

detailed rules for counsel's conduct can satisfactorily take account of the variety 

of circumstances faced by defense counsel or the range of legitimate decisions 

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at 

688-89. "[I]f counsel makes a thorough investigation of the law and facts and 

considers all likely options, counsel's trial strategy is 'virtually 
10 A-3538-17T2

unchallengeable.'" State v. Chew, 179 N.J. 186, 217 (2004) (quoting Strickland, 

466 U.S. at 690-91). 

For that reason,

an otherwise valid conviction will not be overturned 

merely because the defendant is dissatisfied with his or 

her counsel's exercise of judgment during the trial. The 

quality of counsel's performance cannot be fairly 

assessed by focusing on a handful of issues while 

ignoring the totality of counsel's performance in the 

context of the State's evidence of defendant's guilt. As 

a general rule, strategic miscalculations or trial 

mistakes are insufficient to warrant reversal except in 

those rare instances where they are of such magnitude 

as to thwart the fundamental guarantee of a fair trial.

[State v. Castagna, 187 N.J. 293, 314-15 (2006)

(citations, internal quotation marks, and alterations 

omitted).]

Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential." 

Strickland, 466 U.S. at 689. 

As to the second prong, "[a]n error by counsel, even if professionally 

unreasonable, does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment." Id. at 691. Thus, 

Strickland's second prong "is satisfied by a defendant's showing that 'there is a 

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

the proceeding would have been different.'" Castagna, 187 N.J. at 315 (quoting 
11 A-3538-17T2

Strickland, 466 U.S. at 694). This prong "is an exacting standard" and "'[t]he 

error committed must be so serious as to undermine the court's confidence in the 

jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008)

(quoting Castagna, 187 N.J. at 315) (alteration in original).

Applying these principles, we are satisfied defendant failed to present 

competent evidence satisfying either Strickland prong. The advice regarding 

the admission of defendant's statement to S.H. can hardly be characterized as 

professionally unreasonable, given the fact that defendant's prior attorneys, both 

experienced criminal defense attorneys, gave the same advice. "[S]trategic 

miscalculations or trial mistakes are insufficient to warrant reversal except in 

those rare instances where they are of such magnitude as to thwart the 

fundamental guarantee of a fair trial[,]" which is not the case here. Castagna, 

187 N.J. at 315 (citations, internal quotation marks, and alterations omitted).

Like the PCR court, we also reject defendant's contention that he was 

denied effective assistance of counsel based on Roberts "misleading him 

regarding his sentence exposure." Because he claims he would have accepted 

the plea offer absent Roberts' advice, defendant posits "this matter must be 

remanded for an evidentiary hearing with testimony taken from [Roberts] as he 

was the attorney who misled [him.]" However, defendant's concession that he 
12 A-3538-17T2

was advised by his prior attorneys that his exposure extended to life 

imprisonment, as well as his acknowledgement that he rejected a twenty-five 

year plea offer from the State, undermine his claim. 

Even if Roberts misinformed defendant that his exposure was thirty years' 

imprisonment, defendant nonetheless failed to satisfy the second prong of the 

Strickland test because he rejected a twenty-five year plea offer and took the 

risk of going to trial with actual knowledge that his maximum sentencing 

exposure was life imprisonment. Cf. State v. Taccetta, 200 N.J. 183, 193-94, 

198 (2009) (rejecting the defendant's ineffective assistance of counsel claim that 

he "could have entered a guilty plea to the purported plea offer if correctly 

advised [by his attorney] concerning the sentencing consequences" because to 

do so defendant would have "commit[ted] perjury in giving a factual basis for a 

crime he insist[ed] he did not commit[,]" a practice "antithetical to our court 

rules, case law, and the administration of justice").

Affirmed.