SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1785-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANTE SELBY, a/k/a 

GIGGER, and SELBY TABOO,

Defendant-Appellant.

____________________________

Submitted March 9, 2022 – Decided March 21, 2022

Before Judges Whipple and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 17-01-0131,

and Accusation No. 18-05-0871.

Joseph E. Krakora, Public Defender, attorney for 

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

brief).

Cary Shill, Acting Atlantic County Prosecutor, attorney 

for respondent (Kristen Pulkstenis, Special Deputy 

Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Defendant Dante Selby appeals from the denial of his petition for postconviction relief (PCR) without an evidentiary hearing. For the reasons that 

follow, we decline to consider the arguments defendant raises for the first time 

on appeal and otherwise affirm because defendant failed to establish a prima 

facie showing of ineffective assistance of counsel. 

We take the following facts from the record. An Atlantic County grand 

jury returned a nine-count indictment charging defendant with: three counts of 

third-degree possession of a controlled dangerous substance (CDS) (cocaine, 

heroin, and MDMA, respectively), N.J.S.A. 2C:35-10(a)(1) (counts one, two, 

and three); two counts of third-degree possession of CDS with intent to 

distribute, N.J.S.A. 2C:35-5(a)(1) (cocaine and MDMA, respectively) (counts

four and five); second-degree unlawful possession of a handgun, N.J.S.A. 

2C:39-5(b)(1) (count six); second-degree possession of a firearm while in the 

course of committing a violation of N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:39-

4.1(a) (count seven); third-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(d) (count eight); and second-degree certain persons 

not to have firearms, N.J.S.A. 2C:39-7(b)(1) (count nine). A separate accusation 
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charged defendant with third-degree possession of CDS with intent to distribute 

(heroin), N.J.S.A. 2C:35-5(b)(3). 

On May 31, 2018, defendant pled guilty to counts four and five of the 

indictment and to the accusation after waiving his rights to indictment, remain 

silent, and trial by jury. The plea agreement permitted defendant to apply to 

Drug Court (now known as Recovery Court) and provided for a recommended 

alternative sentence of concurrent six-year terms, subject to a three-year period 

of parole ineligibility, on each count, forfeiture of $590, and dismissal of the 

other seven counts. Defendant applied to Recovery Court and sentencing was 

held in abeyance pending the outcome of that application. 

During the plea hearing, defendant testified that he understood the terms 

of the plea agreement, including the recommended sentence, that he was 

satisfied with the advice he received from trial counsel, that no one forced, 

threatened, or coerced him to plead guilty, and that he was guilty of the three 

counts of possession of CDS with intent to distribute. He then provided an 

adequate factual basis for his plea to each count. The court found defendant 

entered the pleas freely, voluntarily, and knowingly and accepted the pleas. 

As part of defendant's application to Recovery Court, defendant 

underwent a Treatment Assessment Services for the Courts (TASC) evaluation 
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by a Recovery Court substance abuse evaluator.1 The TASC evaluation found 

defendant was not a drug user, suffered from mild alcohol abuse, and 

recommended that he not be admitted into Recovery Court.2 In response, 

defendant moved for special probation under N.J.S.A. 2C:35-14, which provides 

an alternate route to Recovery Court. 

On April 12, 2019, the trial court heard argument on defendant's motion. 

At the outset, trial counsel noted that the plea agreement was based upon 

defendant's drug history and dependency. Counsel asserted that defendant pled 

guilty so that he could "get in" Recovery Court. Counsel stated that he submitted 

several TASC evaluations

3

and claimed they showed that defendant was 

"extremely drug dependent." 

1

 A TASC evaluation is a substance abuse assessment by a certified or licensed 

substance abuse evaluator that is utilized to determine if an applicant is 

clinically eligible for Recovery Court. "Following the evaluation, the substance 

abuse evaluator must produce a written evaluation to determine the presence and 

severity of a substance use disorder . . . and level of care" recommended. 

ADMIN. OFF. OF THE CTS., N.J. STATEWIDE DRUG COURT MANUAL (Dec. 2020). 

"TASC evaluations provide sentencing courts with 'the full measure of [the 

defendant's] substance abuse history[,]'" State v. Harris, 466 N.J. Super. 502, 

545 (App. Div. 2021) (alteration in original) (quoting State v. Clarke, 203 N.J. 

166, 183 (2010)), and determine if the applicant is drug dependent and the 

corresponding level of recommended treatment. 

2

 The record on appeal does not include the TASC evaluation. 

3

 The record on appeal also does not include these other TASC evaluations. 
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Counsel explained the discrepancy between the TASC evaluations was 

because defendant "didn't fully understand the ramifications behind the TASC 

evaluation," and when the evaluator asked him "questions pertaining to the 

case[,] he didn't know" it was a "confidential conversation" that could not be 

used against him at trial. Counsel asserted that misunderstanding led to 

defendant's inaccurate answers during the evaluation, which resulted in the 

TASC evaluation's conclusion that defendant was not drug dependent. 

Counsel emphasized that at the time defendant was admitted to the county 

jail, medical staff deemed defendant drug dependent, suffering from withdrawal, 

and placed him in detoxification. The handwritten entries on the intake and 

referral forms are only partially legible and somewhat equivocal. What is clear 

is that defendant was referred for "drugs and alcohol." A physician prescribed 

medication and issued orders to monitor defendant for a minimum of eight days. 

One progress note indicated "[s]table drug withdrawal continue current 

treatment plan." An alcohol/drug withdrawal evaluation form noted unstable 

withdrawal on December 10 and stable drug withdrawal on December 14. 

Undated "Medical Sheets and Flow Chart for Alcohol/Drug Program" prescribed 

promethazine, an anti-vomiting medication, and indicated defendant had no 

complaints on days three through eight of the detox. It appears to designate the
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withdrawal as from opioids. However, a health evaluation form asked: "Are you 

currently detoxing?" and the box is checked "No." Another question asked: 

"Have you had withdrawal problems in the past?" and the box is checked "No." 

Defendant's behavior was marked "Appropriate" and he was approved for 

general population. 

Trial counsel essentially argued that defendant was both clinically and 

legally eligible for Recovery Court and should have been admitted into the 

program. He indicated defendant was willing to attend an inpatient 

rehabilitation program. 

During the motion hearing defendant interjected that he had "a really bad 

pill problem" due to a herniated disc in his lower back. He stated he had been 

"in and out of jail" and had violated probation and parole by using drugs. He 

asserted that incarceration did not help him with his "drug addiction problem," 

he had never participated in a program, and when released from jail he resorts 

to drugs. 

The court denied defendant's motion and sentenced him that same day. In 

its oral decision, the court noted that defendant told the TASC evaluator that "he 

would get out of prison and return to selling drugs and always wind up back in 

prison. Not using drugs, selling drugs." Defendant interjected that he "never 
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said that." The court stated that although it released defendant from jail to obtain 

another TASC evaluation, the assessment defendant obtained was "not a TASC 

evaluation." It did not contain a narrative or a treatment recommendation. 

Instead, it merely printed out the DSM-5

4

criteria used to diagnose addiction

disorders. The court determined that defendant was clinically ineligible for 

Recovery Court. 

As to sentencing, the judge noted defendant was married and had three

children. Twenty-eight arrests led to eighteen convictions, including five for 

indictable crimes, and twelve for disorderly persons offenses. As a juvenile, 

defendant incurred sixteen arrests and three delinquency adjudications. 

The judge gave substantial weight to aggravating factors three (risk of reoffense), N.J.S.A. 2C:44-1(a)(3); six (seriousness and extent of prior criminal 

record), N.J.S.A. 2C:44-1(a)(6); and nine (need for general and specific 

deterrence), N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors and 

that the aggravating factors clearly and convincingly outweighed the nonexistent mitigating factors. 

Defendant was sentenced in accordance with the plea agreement to three 

concurrent six-year terms, subject to a three-year period of parole ineligibility,

4

 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013). 
8

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and forfeiture of $590. The remaining counts were dismissed. Defendant did 

not move to withdraw his plea before or after sentencing and did not file a direct 

appeal from his conviction or sentence. 

Instead, defendant filed a pro se petition for PCR that claimed ineffective 

assistance of trial counsel based on trial counsel's alleged failure to properly 

investigate the case. PCR counsel was assigned to represent him. PCR counsel 

argued that trial counsel was ineffective by: (1) failing to obtain and present 

medical records relating to defendant's drug dependence, which would have 

altered plea negotiations and sentencing; and (2) cumulative error by otherwise 

failing to negotiate and argue for an appropriate sentence, especially relating to 

Recovery Court eligibility. An evidentiary hearing was requested. 

Counsel argued that despite both trial counsel and the trial court being

aware of defendant's drug dependency, the court determined that appropriate 

documentation was not submitted to confirm defendant was drug dependent. 

Counsel contended documentation showing past and current drug dependency 

was available. Counsel asserted it was reasonably likely that the State and the 

court would have agreed to a lower sentence with drug treatment that would 

provide the requisite level of care and early probation if trial counsel had 

properly negotiated and advocated for that result. 
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Regarding sentencing, counsel contended that while drug dependence is 

not a mitigating factor, it should be fully considered in order to fashion an 

appropriate sentence. Defendant requested a modification of his sentence with 

credit for time served. 

The PCR court heard oral argument on March 10, 2021. PCR counsel 

argued that trial counsel failed to "submit the appropriate paperwork to Drug 

Court" despite defendant's drug dependence. Counsel asserted that defendant 

did "not have any violent convictions" and "would have been a good candidate 

for Drug Court." He noted that defendant was being treated at the Bo Robinson 

Assessment & Treatment Center. The State argued that the TASC evaluator 

determined that defendant did not qualify for Drug Court because there was only 

minor alcohol abuse. The State contended trial counsel could not be deemed 

ineffective if defendant was not eligible for Recovery Court. 

The PCR court denied the petition without an evidentiary hearing. In its

oral decision, the court reasoned that the denial of entry into Recovery Court 

was because defendant was not clinically eligible, not because of ineffective 

assistance of counsel. The court noted the TASC evaluation found only mild 

alcohol abuse. It further noted that the charges were for "selling as opposed to 
10 A-1785-20

using drugs" and that defendant "indicated he was prepared to do it again."5 The 

court concluded that defendant's submissions had been properly considered by 

the Recovery Court. 

This appeal followed. Defendant raises the following points:

POINT I

TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO SUBMIT DRUG ASSESSMENT AND 

OTHER PAPERWORK IN SUPPORT OF DRUG 

COURT AND/OR SPECIAL-PROBATION.

POINT II

DEFENDANT'S GUILTY PLEA WAS NOT 

VOLUNTARILY, KNOWINGLY, AND 

INTELLIGENTLY MADE.

POINT III

PCR AND TRIAL COUNSEL WERE INEFFECTIVE 

FOR NOT FILING OR REQUESTING A DIRECT 

APPEAL TO BE FILED ON DEFENDANT'S 

BEHALF.

Under the Sixth Amendment of the United States Constitution, a criminal 

defendant is guaranteed the effective assistance of legal counsel in his defense. 

Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To establish a prima 

5

 The record reflects that defendant pled guilty to three counts of possession of 

CDS with intent to distribute, not distribution. 
11 A-1785-20

facie claim of ineffective assistance of counsel, a defendant must satisfy the twopart test enunciated in Strickland by demonstrating that: (1) counsel's 

performance was deficient, and (2) the deficient performance actually 

prejudiced the accused's defense. Id. at 687; accord State v. Fritz, 105 N.J. 42, 

58 (1987) (adopting the Strickland two-part test in New Jersey). 

To meet the first prong, defendant must establish that his counsel "made 

errors so serious that counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Defendant 

must rebut the "strong presumption that counsel's conduct [fell] within the wide 

range of reasonable professional assistance[.]" Id. at 689. 

To satisfy the second prong, defendant must establish "a reasonable 

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

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome." Id. at 694. 

When a guilty plea is involved, the defendant must demonstrate that "(i) 

counsel's assistance was not 'within the range of competence demanded of 

attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, 

but for counsel's errors, [the defendant] would not have pled guilty and would 

have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 
12 A-1785-20

(2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 

(1994)).

Defendant argues he was entitled to an evidentiary hearing because there 

were genuine issues of material fact in dispute. He contends that his assertion 

that his guilty plea was coerced is supported because as soon as he entered the 

guilty pleas, "he informed the State and the trial court that he would apply for 

Drug Court[]." He further contends that trial counsel was aware of his arrests 

and drug issues, which would qualify him for Drug Court, yet "trial counsel 

failed to obtain and submit a proper and accepted drug assessment or TASC 

evaluation." 

Rule 3:22-10(b) provides: 

A defendant shall be entitled to an evidentiary hearing 

only upon the establishment of a prima facie case in 

support of [PCR], a determination by the court that 

there are material issues of disputed fact that cannot be 

resolved by reference to the existing record, and a 

determination that an evidentiary hearing is necessary 

to resolve the claims for relief. To establish a prima 

facie case, defendant must demonstrate a reasonable 

likelihood that his or her claim, viewing the facts 

alleged in the light most favorable to defendant, will 

ultimately succeed on the merits.

In turn, Rule 3:22-10(c) provides: "Any factual assertion that provides the 

predicate for a claim of relief must be made by an affidavit or certification . . . 
13 A-1785-20

based upon personal knowledge of the declarant before the court may grant an 

evidentiary hearing." 

Defendant's bare allegation that his plea was coerced was not supported 

by an affidavit, certification, or other competent evidence. Defendant did not 

recount what counsel said to him or otherwise describe the nature or extent of 

the purported coercion. Nor did he describe its impact upon him. Also absent 

is any allegation that trial counsel misled him, made false promises, or provided 

incorrect legal advice that led him to plead guilty. 

With regard to counsel's alleged failure to obtain a TASC evaluation or

acceptable substance abuse assessment, we note that defendant was found 

clinically ineligible for Recovery Court because the information that defendant 

himself provided to the TASC evaluator did not demonstrate that he was drug 

dependent. Notably, defendant does not contend that trial counsel told him to 

understate his drug abuse history, drug use leading up to his arrest, drug 

dependence, or opiate withdrawal. 

Notably, defendant did not present the PCR court with a TASC evaluation 

or acceptable substance abuse assessment that met the requirements for 

admission into Recovery Court. The jail medical unit records contained in the 

confidential appendix fall far short of providing the necessary narrative of 
14 A-1785-20

defendant's substance abuse history, then current level of drug usage and 

dependency, and recommended treatment level. 

Defendant bore the burden of establishing a prima facie claim. State v. 

Gaitan, 209 N.J. 339, 350 (2012). To meet that burden, he had to "do more than 

make bald assertions that he was denied the effective assistance of counsel" to 

establish a prima facie claim entitling him to an evidentiary hearing. State v. 

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant's 

unsupported claims did not present a prima facie case for PCR. Accordingly, 

his argument that trial counsel was ineffective by failing to submit a TASC 

evaluation or acceptable substance abuse assessment was properly denied 

without an evidentiary hearing. 

We next address defendant's argument that his plea was not made 

voluntarily, knowingly, and intelligently. The transcript of the plea hearing 

belies his argument. 

During the plea hearing, defendant acknowledged that: he was satisfied 

with the advice of trial counsel, who had reviewed the plea agreement with him;

his answers to the questions on the plea form were truthful; he understood the 

terms of the plea agreement, including the recommended sentence; no one forced 

him to plead guilty; he was pleading guilty to three counts of possession of CDS 
15 A-1785-20

because he was, in fact, guilty of those offenses, he was pleading guilty 

voluntarily, and had no questions for the court. Defendant answered each 

question clearly and without hesitation. He then provided a sufficient factual 

basis for his plea to each of the three counts, acknowledging that he was 

knowingly in possession of CDS with intent to distribute the drugs, which he 

knew was illegal. Defendant admitted to being in possession of fifty bags of 

heroin on two occasions. That quantity is consistent with an intent to distribute. 

Lastly, in Point III, defendant argues for the first time on appeal that trial 

counsel was ineffective by failing to file a direct appeal from the Recovery Court 

denial. He claims he wanted to appeal that decision. 

As a threshold matter, we will not consider this argument. This contention 

was not presented to the PCR court for its review, despite defendant's 

opportunity to do so in his pro se petition and his counseled brief. Nor was the 

issue raised during oral argument before the PCR court. Moreover, defendant 

did not submit a sworn statement in the form of an affidavit or certification, or 

other competent evidence to the PCR court, or this court, in support of that 

argument. See Cummings, 321 N.J. Super. at 170 (citing R. 1:6-6); see also R.

3:22-8 (requiring the petition to "set forth with specificity the facts upon which 

the claim for relief is based, the legal grounds of complaint asserted, and the 
16 A-1785-20

particular relief sought"); R. 3:22-10(c) (requiring factual assertions that provide 

the predicate for a PCR claim to be made by an affidavit or certification based 

upon personal knowledge of the declarant). 

"For sound jurisprudential reasons, with few exceptions, '[we] will decline 

to consider questions or issues not properly presented to the trial court when an

opportunity for such a presentation is available.'" State v. Witt, 223 N.J. 409, 

419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Indeed, our 

Supreme Court has long held appellate courts do not "consider questions or 

issues not properly presented to the trial court when an opportunity for such a 

presentation is available 'unless the questions so raised on appeal go to the 

jurisdiction of the trial court or concern matters of great public interest.'" Nieder 

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. 

v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). "Generally, an appellate 

court will not consider issues, even constitutional ones, which were not raised 

below." State v. Galicia, 210 N.J. 364, 383 (2012). 

Defendant's newly minted argument is not jurisdictional in nature and 

does not substantially implicate the public interest. Moreover, the record is 

insufficient to permit the adjudication of defendant's delayed challenge, 

especially here, where defendant failed to support his bare assertions with a 
17 A-1785-20

previously filed sworn statement that "allege[s] facts sufficient to demonstrate 

counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170. 

Because we review the PCR court's ruling in view of the record before us, 

we decline to consider this belated, unsupported argument, which was not raised 

before the PCR court. 

Affirmed.