SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3080-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

CLYDE GAYLE, 

 Defendant-Appellant. 

_______________________

Submitted November 1, 2023 – Decided November 22, 2023 

Before Judges Firko and Vanek. 

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 12-08-2273.

Joseph E. Krakora, Public Defender, attorney for 

appellant (James D. O'Kelly, Designated Counsel, on

the brief). 

Grace C. MacAulay, Camden County Prosecutor, 

attorney for respondent (Natalie A. Schmid 

Drummond, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-3080-21

PER CURIAM 

 Defendant Clyde Gayle appeals from an order entered by the Law Division 

on April 29, 2022, denying his petition for post-conviction relief (PCR) 

following an evidentiary hearing. We affirm. 

I.

The salient facts and procedural history were previously detailed in our 

decisions on defendant's direct appeal, State v. Gayle, No. A-0575-14 (App. Div. 

Mar. 17, 2017), and defendant's first PCR appeal, State v. Gayle, No. A-1332-

18 (App. Div. May 1, 2020). We briefly set forth the facts material to our 

determination of defendant's second PCR appeal. 

 On August 30, 2012, defendant was charged with second-degree unlawful 

possession of a weapon, specifically, a .38 caliber handgun, N.J.S.A. 2C:39-5(b) 

(count one); fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39- 

3(f) (count two); and second-degree certain persons not to possess weapons, 

N.J.S.A. 2C:39-7(b) (count three). On April 24, 2014, a jury convicted 

defendant of all three counts following a two-day trial. Defendant was 

extended-term eligible and the court sentenced him to an aggregate term of 

fourteen years of incarceration, with a seven-year period of parole ineligibility. 
3 A-3080-21

Defendant appealed his conviction and sentence. On March 17, 2017, we 

affirmed both. 

Defendant filed a pro se PCR petition arguing he had been denied effective 

assistance of counsel because his trial counsel failed to advise him to accept a 

plea offer. The court appointed counsel to represent defendant on the petition. 

In a supplemental brief, defense counsel asserted an additional instance of 

ineffectiveness of counsel. Counsel stated that while defendant was in the 

hallway in the proximity of several jurors, a probation officer asked defendant, 

"Didn't I have you before?" Counsel further stated that trial counsel was 

deficient for failing to bring this encounter to the court's attention. 

On August 27, 2018, the PCR court denied the petition. Defendant 

appealed on several grounds, including arguing the PCR court abused its 

discretion in denying his petition without an evidentiary hearing. On May 1, 

2020, we affirmed. On November 17, 2020, the Supreme Court reversed this 

court's decision and remanded back to the Law Division for an evidentiary 

hearing. State v. Gayle, 244 N.J. 430 (2020). 
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On October 26 and November 16, 2021, 1 the second PCR court held the 

evidentiary hearing. At the time of the hearing, defendant was no longer

incarcerated and testified he was seeking to be resentenced to expeditiously 

expunge his criminal record. 

 Defendant's sister, Hanifah Edwards-Lattie, testified she did not 

personally observe any interaction between defendant and his trial attorneys. 

She stated she only became aware of the plea offer of a three-year sentence with 

a one-year parole disqualifier on the first day of trial. Overall, the court 

determined Edwards-Lattie lacked underlying knowledge or recollection as to 

relevant events and afforded little credibility to her testimony. 

Defendant testified at the evidentiary hearing he was not told of the State's 

lowest plea offer until after trial commenced. However, the trial court found the 

transcript demonstrated defendant was present when the plea offer was 

discussed on the record six months prior to trial. 

 The court found other significant aspects of defendant's testimony at the 

evidentiary hearing were contradicted by facts in trial record. For example, 

defendant testified at the evidentiary hearing he did not know what extended1

 The written decision states the hearing was November 18, 2021. We reference 

the date on the transcript certifying the date of the hearing as November 16, 

2021. 
5 A-3080-21

term eligible meant before trial. However, the transcript of a pretrial conference 

reflects the trial judge told defendant he was extended-term eligible and 

defendant responded he understood. 

 The court also found defendant's testimony that he would have accepted 

the plea offer if he had been aware of his possible exposure was unsupported in 

the record. At a pretrial hearing, the trial judge explicitly told defendant he was 

facing twenty years in prison with ten years of parole ineligibility. On direct 

examination during the evidentiary hearing, defendant was asked multiple times 

whether his attorney reviewed sentencing exposure with him, to which he 

consistently replied he did not recall. Defendant retained a private attorney for 

the sentencing hearing but that attorney did not testify at the PCR evidentiary 

hearing. 

 As to the probation officer's comment, defendant believed certain jurors 

overheard a probation officer ask him, "Didn't I have you before?" Defendant 

responded, "yeah." Defendant testified he brought this interaction to the 

attention of his attorney. However, he could not recall asking his attorney why 

the issue was not raised to the court. Overall, the court found defendant's 

testimony lacked credibility and was not supported by the record. 
6 A-3080-21

 The State presented the testimony of the two public defenders who 

represented defendant before and during trial. The court found defendant's 

pretrial public defender was clear and credible. However, the court gave little 

weight to the testimony because the attorney retired before defendant's case went 

to trial, did not recall any specific interactions with defendant, spoke primarily 

about his general customs and practices as a public defender, and most of his 

knowledge came from a review of records. 

 The court found defendant's second public defender was the most credible 

since her testimony was consistent with the record and was based on her own 

independent recollection of the case. Counsel testified to successfully arguing

for a reduction in defendant's bail and for the State to reduce the plea offer from 

three years with a three-year period of parole ineligibility to three years with a 

one-year parole disqualifier. 

Additionally, counsel testified to discussing the strengths and weaknesses 

of the State's case with defendant, as well as his possible exposure of twenty 

years in prison with a ten-year period of parole ineligibility if convicted. 

Counsel testified she would not have pressured defendant but would have 

relayed her recommendation to accept the plea offer under the circumstances. 
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Counsel did not have a recollection of defendant telling her about the 

comment allegedly made by a probation officer. Following the testimony, the 

court found the preponderance of the evidence did not establish the probation 

officer made the comment or defendant made counsel aware of it. Additionally, 

the court found even if the comment was made, the preponderance of the 

evidence did not show it influenced the outcome of the trial. Therefore, the 

court found defendant had not established ineffective assistance of counsel as to 

the alleged statement of the probation officer. 

Next, the court considered defendant's claim of ineffective assistance of 

counsel as to the plea offer. The court determined counsel met with defendant 

more than once and explained the plea offers, potential counteroffers, and 

possible sentencing exposure if convicted. At the conclusion of the evidentiary 

hearing, the second PCR court found defendant had not proven he received 

ineffective assistance of counsel with respect to the plea offer and again denied 

defendant's PCR petition. 

Defendant raises the following arguments on appeal:

POINT ONE

[COUNSEL]'S REPRESENTATION OF DEFENDANT 

FELL BELOW AN OBJECTIVE STANDARD OF 

REASONABLENESS AND PREJUDICED 

DEFENDANT. 
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POINT TWO 

THE PCR COURT ERRONEOUSLY CONCLUDED 

THAT DEFENDANT HAD NOT ESTABLISHED 

THAT A PROBATION OFFICER MADE A 

PREJUDICIAL COMMENT IN FRONT OF SOME 

MEMBERS OF THE JURY DURING A BREAK IN 

THE TRIAL. 

II. 

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

habeas corpus." State v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. 

Preciose, 129 N.J. 451, 459 (1992)). "It is a safeguard to ensure that a defendant 

was not unjustly convicted." Ibid. (citing State v. McQuaid, 147 N.J. 464, 482 

(1997)). PCR provides a final opportunity for a defendant to raise a legal error 

or constitutional issue, including a violation of the right to effective assistance 

of counsel as guaranteed by the Sixth Amendment of the United States. State v. 

Hess, 207 N.J. 123, 144-46 (2011); see also Afanador, 151 N.J. at 49 (citing 

McQuaid, 147 N.J. at 482-83) ("Ordinarily, PCR enables a defendant to 

challenge the legality of a sentence or final judgment of conviction by presenting 

contentions that could not have been raised on direct appeal.").

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

appellate court applies a deferential standard; it 'will uphold the PCR court's 

findings that are supported by sufficient credible evidence in the record.'" State 
9 A-3080-21

v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Nash, 212 N.J. 518, 540 

(2013)). A PCR court's interpretation of the law is reviewed de novo. Nash, 

212 N.J. at 540-41. 

Claims of ineffective assistance of counsel are considered under the 

standards enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984), 

and adopted by our State in State v. Fritz, 105 N.J. 42, 58 (1987). In order to 

prevail, a defendant first must show his attorney's handling of the matter "fell 

below an objective standard of reasonableness." Strickland, 466 U.S. at 688. 

Then, a defendant must show there is a "reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different." Id. at 694. In seeking PCR under Rule 3:22-2, a defendant must 

prove counsel was ineffective by a preponderance of the evidence. State v. 

Gaitan, 209 N.J. 339, 350 (2012). 

III. 

 We first address defendant's claim of ineffective assistance of counsel 

predicated on failing to advise him to accept the State's plea offer. A defendant's 

right to effective assistance of counsel "extends to the plea-bargaining process." 

Lafler v. Cooper, 566 U.S. 156, 162 (2012). "[A]n attorney's conduct is 

incompetent when a plea offer is never communicated by the attorney to the 
10 A-3080-21

client." State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996) (quoting 

United States v. Barber, 808 F. Supp. 361, 378 (D.N.J. 1992)). 

Additionally, "an attorney's gross misadvice of sentencing exposure that 

prevents defendant from making a fair evaluation of a plea offer and induces 

him to reject a plea agreement he otherwise would likely have accepted 

constitutes remediable ineffective assistance." State v. Taccetta, 351 N.J. Super. 

196, 200 (App. Div. 2002). "No matter which way the defendant ultimately 

chooses to plead, he should know the risk he faces." State v. Martin, 110 N.J. 

10, 19 (1988). 

In Lafler, the Court set forth the following as to defendant’s burden to 

establish prejudice under Strickland: 

In these circumstances a defendant must show that but 

for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have 

been presented to the court (i.e. that the defendant 

would have accepted the plea and the prosecution 

would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its 

terms, and that the conviction or sentence, or both, 

under the offer's terms would have been less severe than 

under the judgment and sentence that in fact were 

imposed. 

 

[Lafler, 566 U.S. at 164.] 
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After review of the record established at the PCR evidentiary hearing and 

consideration of guiding legal principles, we find no error in the court's denial 

of defendant's claim of ineffective assistance of counsel relating to the plea 

offer. We defer to the court's factual findings, establishing defense counsel met 

with defendant more than once and explained the plea offer of incarceration for 

three years including one year of parole ineligibility. Defense counsel then 

requested an offer of incarceration for eighteen months without any period of 

parole ineligibility. 

 Counsel explained to defendant he was eligible for an extended prison 

term and his possible exposure of twenty-years' incarceration, including ten 

years of parole ineligibility. Counsel estimated there was a fifty percent chance 

of success at trial. Shortly before the trial commenced, defense counsel again 

told defendant the State had re-offered a "three-do-one" plea agreement with the 

understanding defendant had already served nearly two years. 

 Defendant asserts the court's findings following the evidentiary hearing 

overstate the amount of information defense counsel conveyed to him. 

Defendant also contends it was not reasonable for his attorney to believe there 

was a chance he would lose at trial and receive an extended sentence but not 

"aggressively" counsel defendant to take a plea offer. 
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We conclude defendant has not met the burden under the first prong of the 

Strickland test to establish counsel's handling of the matter "fell below an 

objective standard of reasonableness" based upon our deferential review of the 

court's factual findings. Strickland, 466 U.S. at 688. The court found counsel 

had reviewed the range of potential outcomes and, if convicted, possible 

sentences with defendant based upon the credible testimony proffered to the 

court at the hearing. 

Although trial counsel may have been incorrect in the prediction of the 

percentage of defendant's likelihood of success, "[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) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 

(1991)). Moreover, the decision to accept the plea offer ultimately rested 

squarely with defendant. See RPC 1.2 (In a criminal case, the lawyer shall abide 

by the client's decision, after consultation with the lawyer, as to the plea to be 

entered, whether to waive jury trial and whether the client will testify.). 

 
13 A-3080-21

IV. 

 Next, we consider defendant's claim that the second PCR court erred in 

denying his petition based upon his attorney’s alleged failure to bring the issue 

of the unidentified probation officer's alleged comment in the presence of some 

jurors to the attention of the court. Defendant argues counsel should have moved 

for a mistrial in light of the comment because he was prejudiced by not having 

an impartial jury decide the case. 

 Our review of the facts is limited and deferential to the findings of the 

court following the evidentiary hearing. See State v. Garcia, 245 N.J. 412, 430 

(2021). Here, we will not disturb the court's factual finding that defendant did 

not establish the unidentified probation officer's comment was made or defense 

counsel was told of the comment. The court's factual findings were grounded 

on defendant's failure to provide details such as the name of the probation officer 

or any testimony from the officer. Defendant also failed to provide sufficient 

proof defense counsel knew of the alleged statement. The court did not find 

defendant's testimony on this issue to be persuasive. 

 We also conclude the court properly found, if the ambiguous comment 

was made by the unidentified probation officer, defense counsel could have 

asked for a limiting jury instruction or a mistrial, but neither option would have 
14 A-3080-21

favored defendant. The court prudently concluded any limiting instruction 

would have only brought defendant’s criminal record to the attention of the jury. 

Additionally, "[i]t is not ineffective assistance of counsel for defense counsel 

not to file a meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007). 

Therefore, we conclude the court did not err in determining defendant had not 

established the alleged comment was clearly capable of producing an unjust 

result and reversal was necessary to prevent an obvious failure of justice. 

V.

 The court was correct in determining defendant failed to establish the 

required prongs under Strickland with regard to either of his claims of 

ineffective assistance of counsel based upon the proofs at the evidentiary 

hearing. To the extent we have not addressed any of defendant's remaining 

arguments, we conclude they lack sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(2). 

 Affirmed.