SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5297-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TALIV AMOS,

a/k/a TAILY W. AMOS,

Defendant-Appellant.

_______________________

Submitted February 24, 2021 – Decided March 26, 2021

Before Judges Fuentes and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 12-07-0555.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Phuong V. Dao, Designated Counsel, on the 

brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor, 

attorney for respondent (Albert Cernadas, Jr., Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Taliv Amos appeals from an order denying his petition for postconviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On July 26, 2012, defendant was charged in an indictment with firstdegree robbery, N.J.S.A. 2C:15-1 (count one); third-degree aggravated assault 

with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree 

aggravated assault with bodily injury, N.J.S.A. 2C:12-1(b)(7) (count three); 

fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count 

four); third-degree possession of a weapon with an unlawful purpose, N.J.S.A. 

2C:39-4(d) (count five); and first-degree conspiracy, N.J.S.A. 2C:5-2 and 

2C:15-1 (count six).

On December 17, 2012, defendant pled guilty to first-degree robbery in 

exchange for a sentence of sixteen years' imprisonment subject to the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2. This sentence was to be served 

concurrently to an unrelated Essex County sentence.

The record shows that on June 27, 2010, defendant committed a robbery 

while armed with a wrench at the Grain Store in Elizabeth. He was not identified 

or arrested until February 9, 2012. On July 10, 2012, defendant was sentenced 

on Essex County Indictment No. 11-07-1305 to a fifteen-year term of
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imprisonment. On July 26, 2012, defendant was indicted in Union County for 

the charges in the matter under review.

On December 17, 2012, defendant entered into an agreement with the 

State through which he pled guilty to first-degree robbery at the Grain Station

in exchange for a sentence of sixteen years' imprisonment, subject to NERA. At 

his plea allocution, defendant admitted that armed with a wrench, he and a codefendant tied up the store clerk, hit him with the wrench causing injury, and 

stole money from the store.

Prior to sentencing, defense counsel requested an adjournment of the 

sentencing date in order to file a motion for jail credits. Defendant's motion was 

heard on April 19, 2013. After considering the arguments of counsel, the court 

concluded that pursuant to Rule 3:21-8, defendant was entitled to jail credits 

from February 9, 2012, to July 9, 2012, and from February 14, 2013, to April 

18, 2013 (215 days). The court also awarded defendant gap-time credit from 

July 10, 2012, to February 14, 2013 (220 days), the date when he was sentenced 

in Essex County.

On April 19, 2013, the trial court sentenced defendant consistent with the 

plea agreement and assessed appropriate fines and penalties. No direct appeal 

was filed by defendant. On March 16, 2018, defendant filed the pro se PCR 
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petition under review alleging ineffective assistance of counsel. The PCR court

appointed counsel to represent defendant in the prosecution of the petition. PCR 

counsel filed a brief in support of the petition arguing defendant was entitled to 

220 days of jail credits that were erroneously awarded as gap-time credits. 

Defendant claimed his trial counsel informed him prior to his pleading guilty 

that he would receive jail credits from November 8, 2011, to the time he was 

sentenced in Union County on April 19, 2013. PCR counsel claimed that the 

attorney who represented defendant at the time of sentencing failed to 

adequately argue this point to the court.

On December 10, 2018, the PCR court heard oral argument on defendant's 

petition. The court reserved decision at the conclusion of the hearing and 

rendered an oral decision on April 26, 2019.

In its comprehensive oral decision, the PCR court noted that on the April 

19, 2013 motion hearing date, defendant was given an opportunity to withdraw 

his guilty plea but declined to do so. The court found defendant failed to present 

a prima facie case of ineffective assistance of counsel and denied the petition 

without an evidentiary hearing. Under Rule 3:21-8, the court noted defendant 

could have raised the issue of jail time credits on direct appeal because a 

challenge to an award or denial of jail credits constitutes an appeal of a sentence 
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not imposed in accordance with the law. Therefore, defendant's petition was 

procedurally barred under Rule 3:22-3.

The PCR court also cited U.S. v. Shedrick, 493 F.3d 292, 295 (3d Cir. 

2007) for the proposition that an erroneous sentencing prediction by counsel 

does not constitute ineffective assistance of counsel where there was an adequate 

plea hearing conducted. A memorializing order was entered on April 26, 2019.

On appeal, defendant presents the following arguments for our 

consideration:

POINT I

BECAUSE DEFENDANT RECEIVED 

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL 

REGARDING JAIL TIME AND GAP-TIME CREDIT, 

HE IS ENTITLED TO [PCR] INCLUDING AN 

EVIDENTIARY HEARING. 

POINT II

DEFENDANT HAS ESTABLISHED A PRIMA 

FACIE CASE OF INEFFECTIVE ASSISTANCE OF 

COUNSEL TO WARRANT AN EVIDENTIARY 

HEARING.

II.

"Post-conviction relief is New Jersey's analogue to the federal writ of 

habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-

2(a), a criminal defendant is entitled to PCR if there was a "[s]ubstantial denial 
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in the conviction proceedings of defendant's rights under the Constitution of the 

United States or the Constitution or laws of the State of New Jersey[.]" "A 

petitioner must establish the right to such relief by a preponderance of the 

credible evidence." Preciose, 129 N.J. at 459 (citations omitted). "To sustain 

that burden, specific facts" that "provide the court with an adequate basis on 

which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 

579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited 

for post-conviction review. See R. 3:22-4(a)(2); Preciose, 129 N.J. at 460. In 

determining whether a defendant is entitled to relief on the basis of ineffective 

assistance of counsel, New Jersey courts apply the two-prong test articulated by 

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 

687 (1984), and United States v. Cronic, 466 U.S. 648, 658-60 (1984). Preciose, 

129 N.J. at 463; see State v. Fritz, 105 N.J. 42, 49-50 (1987).

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

[defense] counsel's performance was deficient." Strickland, 466 U.S. at 687. 

Under the second prong, a defendant must demonstrate "a reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would 

have been different." Id. at 694.
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Here, we agree with the PCR judge that defendant could have raised the 

question of jail time credits on direct appeal. Defendant is thus procedurally 

barred under Rule 3:22-3 from raising this issue in a PCR petition.

Affirmed.