SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3192- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. WINSTON WILSON, a/k/a JESUS WILSON, Defendant-Appellant.

________________________

Submitted November 6, 2023

– Decided January 26, 2024 Before Judges Berdote Byrne and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 14- 05

- 0331, 14- 05

- 0332 , and 17- 09

- 0544. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody , Designated Counsel, on the brief). John P. McDonald , Somerset County Prosecutor, attorney for respondent ( La uren E. Bland, 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 PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3192

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Defendant Winston Wilson seeks reversal of the tria l court's denial of his petition for post-conviction relief (PCR) without a n evidentiary hearing. We affirm. I. In April 20 14, defendant attended a party at the home of M.G. 1 in Franklin

. Defendant was asked to leave. He left, and returne d between 1:00 a.m. and 6 a.m. Defendant assaulted M.G. with a barbell and a knife. She sustained blunt force trauma and stab wounds to her head, face, chest, arms, abdomen, and throat. M.G. was transported to the hospital and e mergency surgery was performed. At M.G.'s home, the officers observed signs of a s truggle and blood in the upstairs bedroom , bathroom, and on the upstairs hallway wall. A smal l barbell was found in the kitchen sink. Initially, M.G. identified the attacker as her boy friend "Rubin." Later, she recanted and identified her attacker was "Jesus," d efendant's nickname, and gave the physical description of a New Jersey Devils log o tattoo on defendant's neck and a teardrops tattoo on his face.

1 We use initials to protect the confidentiality an d identity of the victim. R. 1:38 -3(c)(12).3 A- 3192

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Defendant took a cell phone, a PlayStation, and a 2 009 Mazda 6 car from M.G.'s home

. While investigating the assault, police officers l ocated the stolen vehicle at an apartment complex in Edison where defendant was staying. Police recovered M.G.'s PlayStation and defendant was foun d in possession of an unregistered and loaded .38 caliber Smith and Wesso n handgun

. On May 29, 2014, a Somerset County grand jury retur ned Indictment No. 14

- 05

- 00331 charging defendant with first-degree attempted murd er, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) (count one); robbery, N.J.S.A . 2C:15-1 (c ount two); two counts of third-degree possession of a weapon for a n unlawful purpose, N.J.S.A. 2C:39-4(d) (counts three and four); and third-degre e theft, N.J.S.A. 2C:20-3(a) (count five ). Defendant was charged in a separate indictment , Indictment No. 14

- 05

- 0332 , with second-degree unlawful possession of a firearm, N. J.S.A. 2C:58-4. The grand jury returned a third indictmen t on September 27, 2017 , Indictment No. 17- 09

- 0544 , charg ing defendant with two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20- 3a

. The trial court consolidated a ll indictments on October 11, 2017. On the same day, the State dismissed the third-degree theft charge in Indictment No. 14- 05

- 33 1. In October 2017, a jury trial was held on Indictme nt No. 14

- 05

- 33 1, resulting in a mistrial. On October 13, 2017, befo re defendant's retrial, he4 A- 3192

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pleaded guilty to first-degree attempted murder, ro bbery, two counts of thirddegree possession of a weapon for an unlawful purpo se in the first indictment,

seco nd -degree unlawful possession of a firearm in the sec ond indictment, and both counts of theft in the third indictment. During the plea colloquy, defendant testified that he un derstood the terms of the negotiated plea agreement. When asked by the court if he was satisfied with his communications with trial counsel, defenda nt testified that he had an adequate opportunity to discuss with trial counsel his plea agreement, the additional proofs that may have been offered agains t him by the State, and any additional defenses and/or strategy that could have been presented on retrial

. Defendant further stated that he was satisfied with trial counsel's representation during the first trial and at the time of the plea hearing

. On defendant's plea form, he circled "Yes" that he was satisfied with t he advice received from counsel. Defendant also circled "No" that other "p romises" or "any threats" were made to cause him to plead guilty. The court was satisfied with defendant's allocu tion to the charges and accepted his guilty plea. The court denied defendant's motion to withdraw hi s guilty plea on April 11, 2018.5 A- 3192

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The next month , on May 11, 2018, the court sentenced defendant to t welve years with an eighty-five percent parole bar and fi ve years of parole supervision as prescribed by the No Early Release Act (NERA), N .J.S.A. 2C:43-7.2, on the first in dictment, concurrent with seven year s with a fifty-percent parole bar on the second in dictment, and four years "flat" on the third indict ment. Thereafter, defendant appealed his sentence, and th e matter was listed on the excessive sentencing calendar pursuant to Rule 2:9 -11. On October 24, 2018 , we remanded the case for resentencing and ordered the merger of several
counts
. State v. Wilson , A- 4785

- 17 (App. Div. Oct. 24, 2018). The trial court resentenced defendant on December 4, 2018, with no change to his aggregate
term. In October 2019, defendant, then self-represented, filed a PCR petition , asserting ineffective assistance of trial counsel. On February 19, 2019, defendant's assigned PCR counsel filed an amended P CR petition, brief, and certification in further support of defendant's pet ition. The judge heard oral argument. On March 21, 2022, the PCR court issued a written opinion and order denying defendant's petition.6 A- 3192

- 21 II. On appeal, defendant raises two arguments. First, defendant argues that he is entitled to an evidentiary hearing on his ine ffective assistance of counsel claim because trial counsel failed to conduct an ad equate pretrial investigation concerning his intoxication defense. Second, trial counsel "pressured" him to plead guilty. The factual and legal determinations made by a PCR court are reviewed de novo when an evidentiary hearing is not held. S tate v. Harris, 181 N.J. 391, 420 -21 (2004); State v. Lawrence, 463 N.J. Super. 518, 522 (App. Div. 2020). A PCR court's decision to proceed without an eviden tiary hearing is reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023) (cit ing State v. Brewster, 429 N.J. Super. 387, 401 (App. D iv. 2013)). When the defendant's basis for relief is premised on a clai m of ineffective assistance of counsel, he is required to satisfy th e two-prong test enunciated in Strickland by demonstrating that: (1) counsel's per formance was deficient, and (2) the deficient performance prejudiced the accuse d's defense. Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v. F ritz, 105 N.J. 42, 56-8 (1987) (adopting the Strickland t wo -part test in New Jersey ). When reviewing such claims, courts apply a strong presumption that defense counsel "rendered7 A- 3192

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adequate assistance and made all significant decisi ons in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will not serv e to ground a constitutional claim of inadequacy[.]" Fritz , 105 N.J. at 54 (internal citations omitted). A petitioner is not automatically entitled to an ev identiary hearing. State

v. Porter, 216 N.J. 343, 355 (2013). Rule 3:22 -10 provides that a defendant is entitled to an evidentiary hearing on a PCR petition only if he or she establishes a prima facie case in support of PCR, material issu es of disputed fact cannot be resolved by reference to the existing record, and a n evidentiary hearing is necessary to resolve the claims for relief. Id. at 354 (quoting R. 3:22 -10(b)). The PCR court should grant an evidentiary hearing " if a defendant has presented a prima facie claim in support of [PCR]." State v. Preciose, 129 N.J. 451, 462 (1992). A. Alleged Failure to Conduct an Inadequate Investiga tion of Defendant's Intoxication Defense. Defendant argues the PCR court erred in its determi nation that defendant could not have raised an intoxication defen se at the time of the second trial because he would have been subject to cross-examina tion about his failure to raise it at his first trial. He also argues the PC R court erred when it found "trial counsel's failure to investigate an intoxication de fense was 'eminently8 A- 3192

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reasonable' because if it had been raised at trial, it would have contradicted the alibi defense which [defendant] had presented at tr ial." We reject defendant's arguments
. Defendant makes these arguments even though the rec ord shows, as found by the PCR court, trial counsel "raise[d] strong de fenses at the first trial." Moreover, defendant provided the jury with an alibi a nd his trial counsel argue d that defendant was at his former girlfriend's home at the time of the assault. There was also no prejudice to defendant because tr ial counsel's performance led to the outcome of a hung jury. Applying the se well-established standards, we discern no fault in the PCR court's analysis bec ause defendant offers nothing more than bald assertions that are not supported by the record. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (explaining there must be more than bald allegations of counsel's substand ard investigation; the defendant's PCR petition lacked supporting affidavi ts setting forth personal knowledge of what a more thorough investigation wou ld have revealed). Thus, the record is barren of facts to sufficiently demon strate substandard performance by trial counsel. State v. Porter, 216 N.J. 343, 3 55 (2013).9 A- 3192

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B. The Alleged Pressure by Trial Counsel for Defendan t to Plead Guilt y. Additionally , defendant argues that the PCR court erred in find ing that defendant's responses during the plea colloquy indi cated that he knowingly and voluntarily entered a guilty plea. We agree with t he PCR court, the transcript of the plea hearing reflects detailed questions wer e posed to defendant to determine whether he was satisfied with trial counsel's se rvices, and whether he had an adequate opportunity to discuss his plea agr eement with trial counsel, the additional proofs by the State, and any additional defenses and/or strategy that could have been employed in the event of a retrial. Defendant unequivocally stated that he was satisfied with trial counsel's s ervices and all communications with trial counsel. He cannot now claim inadequate representation from tr ial counsel. In sum, defendant has demonstrated neither deficie nt performance by trial counsel nor any actual prejudice; and therefore, he fails to meet the Strickland/Fritz standard for relief. We are satisfied the PCR court did not abuse its discretion in concluding defendant was not enti tled to an evidentiary hearing. Affirmed.