RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4745-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYREEN H. WALKER, a/k/a

TYRENE WALKER,

Defendant-Appellant.

____________________________

Submitted July 3, 2018 – Decided 

Before Judges O'Connor and Moynihan.

On appeal from Superior Court of New Jersey, 

Law Division, Cumberland County, Indictment 

No. 10-12-0754.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Lee March Grayson, Designated 

Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Kim L. 

Barfield, 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NOT FOR PUBLICATION WITHOUT THE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.

August 14, 2018
2 A-4745-15T2

Defendant Tyreen H. Walker appeals from the denial of his 

petition for post-conviction relief (PCR), arguing:

POINT I

THE PCR COURT ERRED IN DENYING THE DEFENDANT'S 

PETITION FOR POST-CONVICTION RELIEF WITHOUT 

AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY 

ADDRESS HIS CONTENTION THAT DEFENSE COUNSEL 

IN THE TRIAL COURT FAILED TO ADEQUATELY 

EXPLAIN THE RAMIFICATIONS OF THE PLEA 

AGREEMENT, WHICH SUBJECTED HIM TO PAROLE 

SUPERVISION FOR LIFE.

POINT II

THE PCR COURT ERRED IN FINDING THAT THE 

IMPOSITION OF A SPECIAL SENTENCE OF PAROLE 

SUPERVISION FOR LIFE [PSL] ON THE DEFENDANT 

WAS NOT UNCONSTITUTIONAL.

We are unpersuaded by either argument and affirm.

Absent an evidentiary hearing, our review of the facts found 

and the factual inferences drawn by the PCR court from the record 

is de novo. State v. Blake, 444 N.J. Super. 285, 294 (App. Div.). 

Likewise, we review de novo the PCR court's legal conclusions. 

Ibid.

To establish a PCR claim of ineffective assistance of counsel, 

a defendant must satisfy the test formulated in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987), by showing "that 

counsel made errors so serious that counsel was not functioning 

as the 'counsel' guaranteed . . . by the Sixth Amendment," Fritz,
3 A-4745-15T2

105 N.J. at 52 (quoting Strickland, 466 U.S. at 687), and by

proving he suffered prejudice due to counsel's deficient 

performance, Strickland, 466 U.S. at 687, 691-92. Defendant must 

show by a "reasonable probability" that the deficient performance 

affected the outcome. Fritz, 105 N.J. at 58. In cases such as 

this, following the entry of a guilty plea, defendant must 

establish there was a reasonable probability that, but for 

counsel's errors, he would have rejected the plea offer and gone 

to trial. State v. DiFrisco, 137 N.J. 434, 457 (1994); see also

State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) 

(holding a defendant "must convince the court that a decision to 

reject the plea bargain would have been rational under the 

circumstances" (quoting Padilla v. Kentucky, 559 U.S. 356, 372 

(2010))).

During the plea colloquy the assistant prosecutor, in 

defendant's presence, recited the plea offer:

It was in exchange for a [g]uilty [p]lea to 

[c]ount 1 of the [i]ndictment, as charged, 

second-degree sexual assault[, N.J.S.A. 

2C:14-2(c)(4)].

The State would recommend, I think, to a 

second-degree, but treating it as a thirddegree for sentencing purposes. That we would 

recommend a four-year [s]tate [p]rison term, 

with Megan's Law, parole supervision for life,
4 A-4745-15T2

and [an evaluation at the Adult Diagnostic and 

Treatment Center].[1]

Defense counsel confirmed that those were the accepted terms, 

adding, "I've spoken with [defendant]. He understands he has a 

right to a trial; but, he understands this to be in his best 

interest, and we are prepared to proceed at this point." Defendant 

later acknowledged under oath that the agreement was in his best 

interest.

Defendant was sworn and, after indicating he understood that 

he was waiving a plethora of rights individually recited by Judge 

Benjamin C. Telsey, admitted he had an opportunity to review the 

plea forms with his counsel; his counsel was available to answer 

any questions about the forms; the circled answers were defendant's 

truthful responses to the posed questions; and he signed and 

initialed the forms. The plea forms explain in detail, in five 

sub-questions, the ramifications of PSL; defendant answered yes 

to each question asking if he understood those details. After 

denying that he was under the influence of "any drugs, medication, 

alcohol, or anything else that would affect [his] ability to 

understand [what was] going on" during the plea, defendant stated

he heard the terms of the recommended sentence that were placed 

 

1 The plea agreement provided that count two of the indictment 

charging second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), 

would be dismissed.
5 A-4745-15T2

on the record. He understood he was to receive a four-year "flat" 

sentence and repeatedly denied having any questions about the 

sentence.

Judge Telsey continued his thorough review of the plea terms,

engaging defendant in the following PSL-related colloquy:

THE COURT: Do you . . . understand that you'll 

be subject to parole supervision for life?

THE DEFENDANT: Yes.

THE COURT: Which means that you'll be 

supervised by parole for at least 15 years, 

as if you were on parole?

THE DEFENDANT: Yes.

THE COURT: And that could be very strict 

conditions as part of that supervision.

THE DEFENDANT: Yes.

THE COURT: Do you understand if you violate a 

condition of parole supervision for life, you 

could be -- your parole could be revoked and 

you could be sentenced to prison for 12 to 18 

months for each revocation?

THE DEFENDANT: Yes.

THE COURT: And, that if you violate a 

condition of parole supervision for life, and 

you're indicted and convicted, you could 

receive a sentence of up to 18 months?

THE DEFENDANT: Yes.

Defendant's counsel, at the conclusion of the judge's 

questioning, asked defendant, "All the things the [j]udge just 

discussed with you, you and I went over in detail, did we not?" 
6 A-4745-15T2

Defendant answered, "Yes." Counsel continued, "You understand 

everything?" Defendant answered affirmatively and denied having 

any questions for counsel, confirming his answer to the same 

question in the plea form.

Defendant's ineffective assistance of counsel contentions 

that: he had significant cognitive deficiencies; he did not 

understand that he was pleading to a second-degree sexual assault, 

to be treated as a third-degree crime for purposes of sentencing 

– not third-degree endangering the welfare of a child; and his 

counsel did not explain the ramifications of PSL are belied by the 

record. Notwithstanding his contention that the Adult Diagnostic 

and Treatment Center's pre-sentence evaluation may corroborate

that his cognitive difficulties impacted his ability to understand 

the plea agreement, he gave no indication he had any difficulty 

understanding the plea forms, Judge Telsey's questions, or the 

terms of the agreement, including PSL. Defendant's bald-faced 

assertions do not establish a prima facie case of ineffective 

assistance of counsel. See State v. Cummings, 321 N.J. Super. 

154, 170 (App. Div. 1999).

Nor do these assertions establish grounds for an evidentiary 

hearing which should be held only if a defendant presents "a prima 

facie case in support of post-conviction relief." R. 3:22-10(b);

State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish 
7 A-4745-15T2

a prima facie case, defendant must demonstrate "the reasonable 

likelihood of succeeding under the test set forth in Strickland 

v. Washington, 466 U.S. 668, 694 (1984)." Preciose, 129 N.J. at 

463. Merely raising a claim for post-conviction relief does not

entitle a defendant to an evidentiary hearing. Cummings, 321 N.J. 

Super. at 170. Contradicting his prior sworn statements without 

explanation do not create a genuine issue of fact warranting an 

evidentiary hearing. Blake, 444 N.J. Super. at 299.

Post-conviction relief applications are not fishing 

expeditions. State v. Marshall, 148 N.J. 89, 270 (1997) (noting

"that PCR 'is not a device for investigating possible claims, but 

a means for vindicating actual claims'" (quoting People v. 

Gonzales, 800 P.2d 1159, 1206 (Cal. 1990))). Defendant may not 

utilize an evidentiary hearing to explore his bald-faced PCR 

claims. See id. at 157-58.

The record supports Judge Telsey's finding at the conclusion 

of the plea hearing that defendant answered the questions on the 

plea form after reviewing same with his counsel and voluntarily 

entered into the plea agreement with full understanding of the 

sentence and the PSL requirements.

We further determine there is no reasonable probability that, 

but for counsel's errors, defendant would have rejected the plea 

offer and gone to trial. He freely admitted he had sexual 
8 A-4745-15T2

intercourse with a fifteen year-old when he was nineteen, a seconddegree crime for which defendant faced a maximum ten-year State 

prison term. Inasmuch as defendant's belief that the victim was 

eighteen was not a viable defense, N.J.S.A. 2C:14-5(c),

2 it is not 

reasonably probable that he would have rejected a four-year 

sentence and gone to trial. As we noted, he admitted the agreement 

was in his best interest.

Judge Robert G. Malestein correctly denied defendant's 

petition.

We determine defendant's argument that PSL "is an 

unconstitutional violation of the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution, and due 

process and fundamental fairness doctrine inherent in the New 

Jersey Constitution," equating PSL with a continued "custodial 

sentence, despite having been granted the benefit of parole" to 

be without sufficient merit to warrant discussion in this written 

opinion. R. 2:11-3(e)(2). We add only the following observations.

Defendant argues: "By treating all PSL infractions as parole 

violations instead of crimes, which must be proven beyond a 

reasonable doubt, . . . he is being denied due process . . . and 

 

2 The statute provides: "It shall be no defense to a prosecution 

for a crime under this chapter that the actor believed the victim 

to be above the age stated for the offense, even if such a mistaken 

belief was reasonable."
9 A-4745-15T2

. . . the fundamental fairness doctrine has been violated"; and 

"[t]he loss of liberty resulting from a parole revocation has been 

construed 'as a serious deprivation that requires due process.'" 

We agree with Judge Malestein's well-written opinion that those 

issues are not ripe for constitutional review because defendant 

has not been charged with a PSL violation. We also note a defendant 

charged with a criminal offense for violating a PSL condition, 

N.J.S.A. 2C:43-6.4(d), enjoys the full panoply of rights afforded 

any person accused of a crime. Further, a defendant subject to 

parole revocation is entitled to the rights mandated by N.J.S.A. 

30:4-123.62 and -123.63, which include a hearing. N.J.S.A. 2C:43-

6.4(b). And contrary to defendant's averment that the prospect 

of release from PSL "has been virtually eliminated," N.J.S.A. 

2C:43-6.4(c) – as he recognized in his merits brief – provides a 

pathway for eventual release from PSL supervision.

Affirmed.