STATE OF NEW JERSEY VS. TYREEN H. WALKER (10-12-0754, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

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 August 14, 2018

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
 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,

2 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 third-
degree for sentencing purposes. That we would
recommend a four-year [s]tate [p]rison term,
with Megan's Law, parole supervision for life,

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 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.

4 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?"

5 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

6 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

7 A-4745-15T2
intercourse with a fifteen year-old when he was nineteen, a second-

degree 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."

8 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.

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