SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5596-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD O. MCKINNEY,

a/k/a EDDIE O. MCKINNEY,

Defendant-Appellant.

Submitted January 25, 2021 – Decided March 8, 2021

Before Judges Sabatino and Currier. 

On appeal from the Superior Court of New Jersey, Law

Division, Salem County, Indictment No. 12-03-0170.

Joseph E. Krakora, Public Defender, attorney for 

appellant (John J. Bannan, Designated Counsel, on the 

brief). 

John T. Lenahan, Salem County Prosecutor, attorney 

for respondent (David M. Galemba, 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NOT FOR PUBLICATION WITHOUT THE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 appeals from the June 13, 2019 order denying his petition for 

post-conviction relief (PCR) after an evidentiary hearing. We affirm.

After a jury trial, defendant was convicted of two counts of first-degree 

robbery, N.J.S.A. 2C:15-1, third-degree terroristic threats, N.J.S.A. 2C:12-3(b), 

and fourth-degree possession of an imitation firearm for an unlawful purpose, 

N.J.S.A. 2C:39-4(e). He was sentenced to an aggregate prison term of fortyfive years with an eighty-five percent parole disqualifier under the No Early 

Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed the convictions but remanded to the trial court for 

resentencing. State v. McKinney, No. A-5379-12 (App. Div. Nov. 30, 2015) 

(slip op. at 14). On remand, the court sentenced defendant to an aggregate 

twenty-year term subject to NERA. 

Defendant appealed from the resentence. We affirmed. State v. 

McKinney, No. A-2235-15 (App. Div. May 4, 2016) (slip op. at 1). 

Thereafter, defendant filed a petition for PCR. He raised several 

contentions of ineffective assistance of counsel, including that he was not 

properly represented during the plea stage of the proceedings. The petition was 

denied. 
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On appeal, this court reversed and remanded for an evidentiary hearing 

only to determine the issue of whether defense counsel was ineffective in failing 

to alert the court of defendant's desire to accept the reduced plea offer. State v. 

McKinney, No. A-1256-17 (App. Div. Dec. 18, 2018) (slip op. at 9).

The trial court held an evidentiary hearing in April 2019 during which two 

attorneys testified regarding their representation of defendant in the criminal 

proceedings. Defendant testified as well.

We rely on the facts presented in our earlier decision regarding the 

circumstances surrounding the plea offers. Id. at 1-3. We provide these 

additional facts elicited during the evidentiary hearing.

Leslie McNair-Jackson was admitted to the bar in 2000 and had been 

employed at the Office of the Public Defender since 2003. She described 

defendant as "very involved" in his case, and they frequently communicated by 

correspondence and telephone, and during jail visits. McNair-Jackson 

documented any important information, and she had those records with her 

during the hearing.

According to McNair-Jackson, the State's initial plea offer was eighteen 

years in prison subject to NERA. At the pretrial conference, the State reduced 

its offer to ten years, subject to NERA. She explained the plea to defendant but
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he was not interested in the offer. McNair-Jackson noted in her paperwork that

defendant "did not want anything involving [eighty-five] percent." She said 

defendant "either wanted a three with a three, or [eighteen months], do [eighteen

months]." Defendant told counsel he wanted a sentence for a fourth-degree 

offense with county jail time despite being charged with a first-degree crime. 

McNair-Jackson reviewed the Pretrial Memorandum with defendant, 

explained his sentencing exposure1and NERA,2and advised him of the 

possibility of consecutive sentencing due to multiple victims. Counsel stated 

she also explained the plea cutoff rule. McNair-Jackson stated defendant 

appeared to understand their conversation. He did not indicate he did not 

understand the consequences of going to trial. 

During the pretrial conference on July 13, 2012, the trial judge informed 

defendant of the ten-year plea offer and told him it was the last day to accept it. 

Defendant acknowledged that he understood the State's ten-year plea offer 

expired that day, and that he could be sentenced up to life in prison if convicted 

1 According to McNair-Jackson, defendant was exposed to a ten to twenty-year 

sentence on the robbery charges. He also was eligible for an extended term as 

a persistent offender and she told defendant he could be sentenced to life in 

prison.

2 Counsel testified she had explained NERA to defendant "[v]ery early on in the 

case[.]" 
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due to his lengthy criminal record that made him eligible for an extended term. 

The case was scheduled for trial the following month.

McNair-Jackson was aware of the judge's policy to enforce the plea cutoff. 

She said the judge would not permit a plea after the cutoff date just for "a change 

of heart." In her experience, something had to change on the part of the State,

such as witness unavailability, for the judge to accept a plea after the cutoff date.

As McNair-Jackson prepared for trial, she found an issue in the grand jury 

proceedings that made her "uncomfortable[.]" Since the time for dispositive 

motions had expired, McNair-Jackson spoke to her supervisor and alerted the 

assistant prosecutor of the grand jury issue. She also wrote a letter to the judge

on July 17, 2012, requesting permission to supplement her prior motion to 

dismiss and an opportunity to renew plea negotiations with the State. 

After several discussions, the assistant prosecutor told McNair-Jackson he 

could extend a final plea offer of five years with eighty-five percent parole 

ineligibility. Counsel conveyed the offer to defendant in a July 20 letter, adding

"I know that you may not be interested, but I am obligated to advise you of any 

new [p]lea offers." McNair-Jackson told the court she included that language

because "during the pendency of this case from [a]rraignment to the [pretrial 
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conference], [defendant] made it very clear that he wasn't interested in anything 

that carried an [eighty-five] percent [parole disqualifier]." 

On August 1, 2012, McNair-Jackson spoke to the assistant prosecutor who

confirmed that the State's best offer was going to be the "five, [eighty-five]." 

She also inquired about witness availability and used an investigator to confirm 

that the witnesses were in fact available to testify. 

On August 2, McNair-Jackson visited defendant in jail to discuss the new 

plea offer. She presented him with his options and explained his exposure so he 

could "make an intelligent decision of his own choosing." McNair-Jackson said 

defendant "wasn't interested in the five, [eighty-five]." He wanted the "[s]ame 

thing" as before; namely, a "fourth-degree." She memorialized the conversation 

in her notes.

Later that month, either just before or on the day of the scheduled trial, 

defendant changed his mind about the State's plea offer. McNair-Jackson and 

the assistant prosecutor approached the judge in chambers about pleading the 

case off the trial list. Although McNair-Jackson "tried" to articulate a change in 

circumstances, the judge denied defendant's request to accept the plea offer 

because he did not think there was a sufficient change of circumstances. 
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McNair-Jackson advised defendant accordingly. The trial did not begin that 

day. 

On December 7, 2012, defendant sent a letter to McNair-Jackson "asking 

for a no show/no rec [p]lea [a]greement, credit for time that I have been in here, 

and three years . . . with no [eighty-five] percent[.]" McNair-Jackson testified 

the letter was consistent with her recollection that defendant "didn't want to 

touch that NERA [s]entence." 

In January 2013, defendant's case was assigned to an experienced pool 

counsel, Steven Ragland. Ragland testified he was aware of the history of plea 

negotiations from his review of the file and that counsel had attempted to accept 

a five-year NERA plea. He also knew the case was listed for trial. He informed 

the court that McNair-Jackson took a lot of notes so he was able to quickly learn 

the history of the case. He also knew the judge had not allowed defendant to 

plead off the trial list. 

Before trial, Ragland asked the assistant prosecutor whether the five-year 

NERA plea offer was still available. He also spoke to defendant, who said he 

would take the offer. However, when counsel broached the plea offer with the 

court on March 19, 2013, the judge would not accept the plea. Ragland

confirmed that the particular judge imposed the plea cutoff rule "[v]ery" strictly,
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stating "once [a case] was on the trial list, it means it was on trial list. He was 

going to try it." 

Defendant also testified at the evidentiary hearing. He stated he had a 

"good relationship" with McNair-Jackson, and she "worked pretty hard for 

[him]." He communicated with McNair-Jackson by telephone, letter, and inperson meetings at the county jail. Defendant knew she took notes when they 

met or spoke on the telephone. 

Defendant stated McNair-Jackson had advised him of the State's ten-year 

plea offer prior to the July 13, 2012 pretrial conference. In addition, he 

acknowledged signing the Pretrial Memorandum containing the ten-year offer. 

He confirmed that McNair-Jackson reviewed the Pretrial Memorandum with 

him, which included his acknowledgement that the filing of the Memorandum 

would end all plea negotiations except in extraordinary circumstances. 

However, he stated counsel did not tell him it would be difficult to accept a 

negotiated plea agreement after that date. 

Defendant agreed that the plea offer was placed on the record during the 

pre-trial conference. He did not recall the court telling him that the State's tenyear plea offer expired that day, and that he could be sentenced up to life in 

prison if convicted after trial because his lengthy criminal record made him 
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eligible for an extended term. However, when he was shown the transcript from 

the conference, he agreed the judge had informed him of that information. 

Defendant stated McNair-Jackson wrote him a letter on July 20, 2012,

advising she had negotiated a plea offer of five years with an eighty-five percent 

parole disqualifier after she found an error the prosecutor made during the grand 

jury proceedings. Defendant said he wanted to accept the offer and he wrote 

counsel a letter to that effect; however, he could not provide any evidence to 

support his assertion. He did not recall telling McNair-Jackson that he wanted 

an eighteen-month sentence and "street time" as documented in McNairJackson's notes. Defendant admitted McNair-Jackson asked the court to allow 

defendant to accept the five-year NERA plea offer; however, the court said "it 

was too late." 

In discussing Ragland, defendant stated he had a "good relationship." He 

stated he told Ragland several times that he wanted to take the five year plea 

offer. He was present when Ragland asked the court to entertain a plea. 

The PCR judge denied defendant's petition in a thorough written decision 

and order on June 13, 2019. Although she found "[a]ll three witnesses were

credible, each testifying to the best of [their] recollection about the events and 

conversations that occurred prior to trial[,]" the judge noted McNair-Jackson 
10 A-5596-18

provided the most specific information both from her recollection and in her

reference to records from the file. 

In her analysis, the judge recognized the Strickland3standard and used the 

three-factor Lafler4test, applicable here where defendant claimed ineffective 

assistance of counsel led him to reject a plea offer and go to trial. In considering 

Lafler, the PCR court found that defendant had failed to demonstrate he was 

willing to accept the State's revised plea offer. The judge noted that when 

presented with the offer of a ten-year sentence subject to NERA, defendant 

"declined the offer and told his attorney that he wanted an offer that would allow 

him to plead to a fourth[-]degree offense with county jail time or an offer of 

'three do three.'" When McNair-Jackson advised defendant that she had 

succeeded in reducing the State's offer to five years subject to NERA, the judge 

found there was no evidence that defendant responded to her letter. To the 

contrary, the PCR court noted, when counsel met defendant at the jail on August 

2, 2012, "he told her that the offer was too high and that he would only take a 

plea to a fourth[-]degree crime with [eighteen] months and street time." The 

court stated defendant's response was documented in counsel's file. And even 

3

 Strickland v. Washington, 466 U.S. 668 (1984).

4 Lafler v. Cooper, 566 U.S. 156 (2012).
11 A-5596-18

though defendant did not recall making this statement to McNair-Jackson, he 

acknowledged that he might have. The judge found that defendant's "lack of 

interest" in the reduced offer was "further demonstrated by his letter to counsel 

on December [7], 2012[,]" in which he was still requesting a "'no show, no rec 

plea agreement with credit for time served and three years . . . with no [eightyfive percent]' requirement." 

The PCR court also concluded that defendant had not shown a reasonable 

probability that the trial court would have accepted the revised plea offer. The 

PCR judge noted the Pretrial Memorandum executed by defendant informed 

defendant of the plea cutoff. In addition, the trial judge advised defendant at the 

pretrial conference that it was his last day to accept a plea offer. The PCR court 

concluded defense counsel did not give defendant any indication that defendant 

could later change his mind and accept the plea offer. In fact, McNair-Jackson

knew the trial judge "was strict about enforcing the plea cut off rule." 

Nevertheless, the PCR court noted "counsel immediately made an effort

to compel the judge to make an exception in this case." McNair-Jackson filed a 

supplemental motion to dismiss the indictment, which ultimately was denied 

several months later. She also approached the judge in chambers with the 

assistant prosecutor and attempted to persuade him to allow defendant to accept 
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the reduced offer. The judge rejected the request. Therefore, the PCR court 

concluded defendant "pointed to no evidence to support a conclusion that the 

court would have accepted the terms of the plea agreement." 

The PCR judge also found that defendant had failed to show either defense 

counsel was deficient under Strickland. She stated that defendant failed to show 

"that either attorney was ineffective by failing to take appropriate action to alert 

the court of defendant's desire to accept the plea offer." In fact, the PCR court 

highlighted again defense counsel's attempts in August 2012 to convince the 

judge to allow defendant to accept the reduced offer "even though defendant had 

made clear that he wasn't interested in the offer." Trial counsel also alerted the 

court of defendant's desire to accept the plea prior to jury selection. The PCR 

court observed that defendant "was not new to the criminal justice system[,]" 

and was "familiar with the concepts of parole ineligibility, concurrent sentences, 

consecutive sentences, credit for time served and pleading guilty versus going 

to trial." In addition, the PCR court stated defendant "understood that the 

sentence imposed after trial could be more severe" than what was offered by the 

State. "He chose to reject the plea offer's terms and now regrets that decision." 

Because defendant could not demonstrate he would have accepted the plea or 
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that the trial court would have accepted its terms, the PCR court concluded he 

could not establish ineffective assistance of counsel. 

Defendant presents the following argument on appeal:

BECAUSE DEFENDANT RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL, THE 

PCR COURT ERRED IN DENYING DEFENDANT'S 

PETITION FOR PCR. 

a. Legal Standards Governing Applications for PCR

b. Both Pretrial and Trial Counsel Failed to 

Immediately Notify the Trial Court of the New Plea 

Offer and were Ineffective in Seeking an Exception to 

the Plea Cut Off and Advocating a Material Change of 

Circumstances pursuant to Rule 3:9-3(g). 

We apply "a deferential standard" in our review of a denial of a PCR 

petition following an evidentiary hearing. State v. Pierre, 223 N.J. 560, 576 

(2015) (quoting State v. Nash, 212 N.J. 518, 540 (2013)). The factual findings 

made by a PCR court following an evidentiary hearing will be accepted if they 

are based on "sufficient credible evidence in the record." Ibid. (quoting Nash, 

212 N.J. at 540). This court is "not bound by and give[s] no deference to the 

legal conclusions of the PCR court." State v. Harris, 181 N.J. 391, 415 (2004). 

"[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." Id. at 416. 
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The standard for determining whether counsel's performance was 

ineffective under the Sixth Amendment was formulated in Strickland, 466 U.S. 

at 668, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). 

To prevail on an ineffective assistance of counsel claim, defendant must meet 

the two-prong test establishing: (1) counsel's performance was deficient and he 

or she made errors so egregious that counsel was not functioning effectively as 

guaranteed by the Sixth Amendment; and (2) the defect in performance 

prejudiced defendant's rights to a fair trial such that there exists a "reasonable 

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

proceeding would have been different." ·Strickland, 466 U.S. at 687, 694.

In Lafler v. Cooper, the United States Supreme Court extended the 

Strickland test to challenges of guilty pleas grounded in ineffective assistance 

of counsel claims. 566 U.S. at 162-63. The Court stated: "If a plea bargain has 

been offered, a defendant has the right to effective assistance of counsel in 

considering whether to accept it." Id. at 168. To establish prejudice, a defendant 

must show "there is a reasonable probability that . . . defendant would have 

accepted the plea[,] . . . that the court would have accepted its terms, and that 

the conviction or sentence, . . . under the offer's terms would have been less 

severe" than that imposed after trial. Id. at 164.
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On remand, the court conducted an evidentiary hearing and concluded that 

defendant had not satisfied either the Lafler or the Strickland standard of 

ineffective counsel. The judge set forth her factual findings and credibility 

determinations in substantial detail and incorporated these findings in her 

application of the correct legal standard in a comprehensive and well-reasoned 

written decision. Our own review of the record reflects the diligence and 

professionalism of both defense attorneys. We are satisfied the decision is

supported by the substantial credible evidence in the record.

Affirmed.