SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4798-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRE S. MILLEDGE, a/k/a 

TYREE MILLEDGE, 

SHAMAR MILLEDGE, 

and BIG-I,

Defendant-Appellant.

__________________________

Submitted October 19, 2020 – Decided

Before Judges Rothstadt and Susswein. 

On appeal from the Superior Court of New Jersey, Law 

Division, Cumberland County, Indictment No. 07-12-

1096.

John P. Morris, attorney for appellant (Karen A. 

Lodeserto, on the brief).

Jennifer Webb-McCrae, Cumberland County 

Prosecutor, attorney for respondent (Andre R. Araujo, 

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NOT FOR PUBLICATION WITHOUT THE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.

December 28, 2020
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PER CURIAM

Defendant Tyre Milledge1appeals from a May 13, 2019 order denying his 

petition for post-conviction relief (PCR) after an evidentiary hearing. Defendant 

argues that his appellate counsel rendered ineffective assistance by failing to

challenge the trial court's denial of his motion to withdraw his guilty plea to 

aggravated manslaughter. After carefully reviewing the record, we reject 

defendant's contention and affirm the order denying PCR.

I.

On June 23, 2007, defendant was riding as a passenger on a dirt bike 

driven by co-defendant Donald Thomas when he fired a handgun at a home they 

were riding past. Defendant had been instructed by a gang leader, co-defendant 

Raheem Williams, to shoot Thomas "Moopy" Baker. The shot missed Moopy 

but struck and killed Moopy's mother, Elizabeth Taylor. After learning that he 

had failed to carry out Williams' order to execute Moopy, defendant fled to 

Georgia because he knew Williams was "looking for [him]." Defendant was 

eventually arrested in Georgia and sent back to New Jersey. 

1 The record reflects inconsistent spellings of defendant's name as either "Tyre" 

or "Tyree."
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Defendant and his two co-defendants were indicted for multiple charges 

including first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree 

conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 

2C:5-2(a)(1) and (2); possession of a weapon for an unlawful purpose, N.J.S.A. 

2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-4(a). 

In December 2009, defendant pled guilty to the lesser charge of firstdegree aggravated manslaughter pursuant to a negotiated plea agreement in 

which he agreed to testify against Williams. Thereafter defendant filed a motion 

to withdraw his guilty plea. The trial court convened a hearing after which it 

denied defendant's motion.

The parties agreed that defendant's sentencing would be delayed so that 

the State's case against Williams could proceed. In August 2014, defendant was 

sentenced in accordance with the plea agreement to a twenty-year prison term 

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant 

appealed from his sentence only, and an excessive sentence panel of our court 

affirmed. See State v. Milledge, No. A-003099-14 (App. Div. June 22, 2015).

In his subsequent PCR petition, defendant initially argued that his trial 

counsel had been ineffective in failing to pursue a diminished capacity defense. 

At oral argument, defendant additionally claimed that his appellate counsel 
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rendered ineffective assistance by appealing only the sentence and by not 

appealing the denial of his motion to withdraw his plea. The PCR judge ordered 

an evidentiary hearing on whether defendant asked counsel to appeal the denial 

of his motion to withdraw and whether defendant was competent to plead guilty. 

The State filed a motion for reconsideration. Pursuant to a consent order, the 

PCR judge dismissed the motion for reconsideration, held the previously ordered 

evidentiary hearing in abeyance, and permitted the parties to file supplemental 

briefs for additional oral argument.

Defendant accordingly filed new submissions incorporating the two 

ineffective assistance claims. At oral argument, defendant focused on appellate 

counsel's failure to argue that the motion to withdraw the plea should have been 

granted. The PCR judge then decided that an evidentiary hearing was needed to 

determine why the "pool" attorney who was assigned by the Public Defender to 

represent defendant on appeal chose only to challenge the sentence. At that 

hearing, appellate counsel testified that the Public Defender's appellate intake 

unit determined that the appeal would be limited to an excessive sentence 

argument.

The PCR judge found that the attorney in the Public Defender appellate 

intake unit who screened the case would have seen from the case file that 
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defendant had moved unsuccessfully to withdraw his guilty plea. After carefully 

reviewing the transcript of the withdrawal motion hearing, the PCR judge 

ultimately denied defendant's petition, reasoning that "the attorney at the Public 

Defender’s Office who did the intake and prepared the notice of appeal could 

have reasonably found the issue of withdrawing the plea to be without merit 

based on the opinion given by [the trial court]." 

Defendant raises the following issue for our consideration:

POINT I

THE PCR [JUDGE] ERRED IN DENYING DEFENDANT'S PETITION 

FOR POST-CONVICTION RELIEF BECAUSE APPELLATE 

COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY 

REVIEW MR. MILLEDGE'S FILE AND FIND THAT A NOTICE OF 

MOTION TO WITHDRAW HIS GUILTY PLEA HAD BEEN ARGUED, 

AND ERRONEOUSLY DENIED.

II.

We begin our analysis by recognizing that PCR is not a substitute for 

direct appeal. R. 3:22-3. Rather, it serves the same function as a federal writ of 

habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning 

for PCR, a defendant must establish, by a preponderance of the credible 

evidence, that he or she is entitled to the requested relief. Ibid. The defendant 

must allege and articulate specific facts that "provide the court with an adequate 

basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
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Both the Sixth Amendment of the United States Constitution and Article 

1, paragraph 10 of the State Constitution guarantee the right to effective 

assistance of counsel at all stages of criminal proceedings. Strickland v. 

Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 

759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a 

violation of the right to the effective assistance of counsel, a defendant must 

meet the two-part test articulated in Strickland. Fritz, 105 N.J. at 58. "First, the 

defendant must show that counsel's performance was deficient[.] Second, the 

defendant must show that the deficient performance prejudiced the defense." 

Strickland, 466 U.S. at 687.

To meet the first prong of the Strickland test, a defendant must show "that 

counsel made errors so serious that counsel was not functioning as the 'counsel' 

guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a 

"strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance." Id. at 689. Furthermore, in determining 

whether defense counsel's representation was deficient, "'[j]udicial scrutiny . . . 

must be highly deferential,' and must avoid viewing the performance under the 

'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) 

(quoting Strickland, 466 U.S. at 689).
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The second Strickland prong is also demanding. "[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). Counsel's errors must create a "reasonable 

probability" that the outcome of the proceedings would have been different than 

if counsel had not made the errors. Strickland, 466 U.S. at 694. 

The Strickland/Fritz two-pronged standard also applies to claims of 

ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super. 

540, 547 (App. Div. 1987). The hallmark of effective appellate advocacy is the 

ability to "winnow[] out weaker arguments on appeal and focus[] on one central 

issue if possible, or at most, on a few key issues." Jones v. Barnes, 463 U.S. 

745, 751–52 (1983). Importantly for purposes of this appeal, it is well-settled 

that failure to pursue a meritless claim does not constitute ineffective assistance. 

State v. Webster, 187 N.J. 254, 256 (2006). Appellate counsel does not have an 

obligation to raise spurious issues on appeal. Ibid.

III.

We next apply these general principles to the decision made by the Public 

Defender's intake unit to appeal only the sentence and not the denial of 
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defendant's motion to withdraw his guilty plea.2 At the motion to withdraw the 

guilty plea, defense counsel argued that defendant did not understand what he 

was agreeing to because of intellectual disabilities. The State argued defendant 

only wanted to withdraw his plea because he had second thoughts about 

testifying against Williams. 

Defense counsel at the motion hearing relied on a 2011 psychiatric 

evaluation conducted by Dr. Kenneth J. Weiss, who opined that defendant was 

severely intellectually challenged. According to Dr. Weiss, defendant could not 

have knowingly and voluntarily entered into a plea agreement.

The State countered with an earlier psychological evaluation obtained 

through discovery that indicated that defendant suffered from only a mild 

intellectual disability.

The State also introduced correspondence between defendant, Williams, 

Obadiah Taylor,3and a county jail inmate named Kenneth Ransome. These 

2 We believe the screening of cases by the Public Defender appellate intake unit 

is an integral part of the professional assistance provided to a convicted indigent 

defendant. We therefore address whether, under the first Strickland prong, it 

was ineffective assistance on the part of the intake unit not to assign pool counsel 

to address the plea withdrawal issue. We also consider whether, under the 

second Strickland prong, the result would have been different if that issue had 

been raised on direct appeal.

3 Obadiah Taylor provided defendant the gun that was used in the homicide.
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letters evinced a scheme to fabricate a basis for withdrawing defendant's guilty 

plea, ostensibly for the benefit of Williams. A letter from Taylor to defendant, 

for example, encouraged defendant to endorse a draft "affidavit of truth" 

claiming defendant made false statements against Taylor and Williams. Another 

letter sent by defendant to Williams stated that defendant was "100%" and 

mentioned the affidavit Taylor drafted for him. A letter from Ransome to 

Williams articulated hypothetical arguments that would allow defendant to 

withdraw his plea agreement. We note that none of those fabricated arguments 

suggest that defendant lacked the mental capacity to understand the terms and 

consequences of the plea agreement.

In rendering his decision to deny defendant's motion, the trial judge 

emphasized the steps taken to ensure that defendant understood the terms and 

consequences of pleading guilty to aggravated manslaughter. The judge also 

noted that prior to the motion to withdraw, defense counsel never indicated "that 

there was any difficulty with the defendant understanding what was happening 

or what the consequences were or what his agreement was in regard to the 

matter."
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The trial judge then applied the four-factor test articulated in State v. 

Slater, carefully analyzing each factor.4 The trial judge found that defendant 

made no colorable claim as to his innocence. The trial judge also highlighted 

the jail correspondence, noting those letters "seriously call[ed] into question the 

validity of the defendant’s claim that he did not understand the repercussions of 

his guilty plea." As to the third Slater factor, the trial judge noted that the guilty 

plea had been entered pursuant to a negotiated agreement that allowed defendant 

to avoid the mandatory sentence for murder in exchange for his cooperation and 

testimony against the gang leader who ordered an execution. Finally, the trial 

judge found that the State would be greatly prejudiced by withdrawal of the plea, 

insofar as it would have to gather and present evidence from other crimes that 

occurred in 2007—that is, five years prior to the withdrawal hearing.

We agree with the PCR court that the trial judge's reasoning was thorough 

and detailed. We thus conclude the decision not to appeal the denial of the plea 

withdrawal motion falls well "within the wide range of reasonable professional 

assistance." Strickland, 466 U.S. at 689. Neither the Public Defender's Office 

4 The four Slater factors are: "(1) whether the defendant has asserted a colorable

claim of innocence; (2) the nature and strength of defendant's reasons for 

withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal 

would result in unfair prejudice to the State or unfair advantage to the accused." 

198 N.J. 145, 157–58 (2009).
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nor the pool attorney it assigned to handle the appeal was required to raise a 

meritless argument. See State v. Gaither, 396 N.J. Super. 508, 515–16 (holding 

that unlike PCR counsel, a defendant's appellate counsel is not bound to 

advocate claims that they deem to be without merit) (citing Jones v. Barnes, 463 

U.S. 745, 753–54 (1983)). Cf. Webster, 187 N.J. at 258 ("If after investigation 

[PCR] counsel can formulate no fair legal argument in support of a particular 

claim raised by defendant, no argument need be made on that point."). Even 

had defendant raised the plea withdrawal on direct appeal, we see no reasonable 

probability that the trial court's well-reasoned decision would have been 

reversed. See Strickland, 466 U.S. at 694. Defendant has thus failed to establish 

either prong of the Strickland/Fritz test.

Affirmed.