STATE OF NEW JERSEY VS. WENDELL FLEETWOOD (06-04-1479, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4342-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WENDELL FLEETWOOD,

Defendant-Appellant.
________________________________

Submitted August 1, 2018 – Decided August 7, 2018

Before Judges Hoffman and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
06-04-1479.

Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant Wendell Fleetwood appeals from the May 8, 2017 Law

Division order denying his petition for post-conviction relief
(PCR), including his application to withdraw his guilty pleas,

without an evidentiary hearing. We affirm because defendant’s

petition is time barred under Rule 3:22-12(a)(1), and otherwise

lacks merit.

On August 10, 2005, defendant sold an undercover officer two

bags of heroin for twenty dollars. After a short foot pursuit,

officers arrested defendant; a search incident to his arrest

revealed no other contraband. A grand jury indicted defendant for

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

N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to

distribute CDS, N.J.S.A. 2C:35-5(a)(1)/2C:35-5(b)(3); third-

degree possession of CDS with intent to distribute within 1000

feet from a school, N.J.S.A. 2C:35-7; and second-degree certain

locations, N.J.S.A. 2C:357.1/2C:35-5. His trial ended in a

mistrial, and the court ultimately dismissed the indictment

pursuant to a later plea agreement.

In a separate incident on February 17, 2006, an undercover

officer witnessed defendant and another individual twice sell CDS.

Officers arrested both men and discovered thirty-three zip lock

bags containing heroin under a piece of wood where they had

previously witnessed defendant retrieve several items. A grand

jury indicted defendant on the same offenses as the previous

indictment, and also on fourth-degree resisting arrest, N.J.S.A.

2 A-4342-16T3
2C:29-2(a); and third-degree conspiracy/distribution of CDS

N.J.S.A. 2C:5-2/2C:35-5(a)(1).

Lastly, on September 13, 2006, undercover officers witnessed

several drug transactions and arrested defendant for allegedly

directing buyers to the seller. An accusation charged defendant

with third-degree possession with intent to distribute, N.J.S.A.

2C:35-5.

In October 2006, pursuant to a plea agreement, defendant pled

guilty to two counts of third-degree possession of CDS with intent

to distribute. In return, the State dismissed all remaining

charges. At his plea hearing, defendant informed the court he

understood his rights, entered his pleas voluntarily without

threat or coercion, truthfully answered the plea form questions,

and was satisfied with his plea counsel.

In December 2006, the court sentenced defendant to concurrent

three-year prison terms on both counts pursuant to his plea

agreement. Defendant did not file a direct appeal.

In October 2016, nearly ten years after his sentencing,

defendant filed a petition for PCR and a motion to vacate his

guilty pleas, alleging ineffective assistance of counsel. The

court denied his petition without an evidentiary hearing on May

8, 2017, finding the petition procedurally barred and otherwise

3 A-4342-16T3
without merit. The court also denied defendant's motion to

withdraw his guilty plea.

Defendant now appeals, raising the following arguments:

POINT ONE

THE PCR COURT ERRED BY DENYING MR. FLEETWOOD'S
MOTION TO WITHDRAW HIS PLEA.

POINT TWO

MR. FLEETWOOD IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT THREE

THE PCR COURT ERRONEOUSLY RULED THAT MR.
FLEETWOOD'S PETITION WAS TIME BARRED BECAUSE
ANY DELAY IN FILING THE PETITION WAS DUE TO
DEFENDANT'S EXCUSABLE NEGLECT AND THERE IS A
REASONABLE PROBABILITY THAT IF THE DEFENDANT'S
FACTUAL ASSERTIONS WERE FOUND TO BE TRUE,
ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A
FUNDAMENTAL INJUSTICE.

I

Rule 3:22-12(a)(1) precludes PCR petitions filed more than

five years after entry of a judgment of conviction unless the

delay was "due to defendant's excusable neglect and . . . there

is a reasonable probability that if the defendant's factual

assertions were found to be true enforcement of the time bar would

result in a fundamental injustice . . . ." R. 3:22-12(a)(1)(A).

To establish “excusable neglect,” a defendant must demonstrate

"more than simply . . . a plausible explanation for a failure to

4 A-4342-16T3
file a timely PCR petition." State v. Norman, 405 N.J. Super.

149, 159 (App. Div. 2009).

Under Rule 1:1-2(a), a court may disregard the time bar when

the defendant demonstrates an injustice by a preponderance of the

credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992)

(citation omitted). However, courts only relax the time bar in

extraordinary or exceptional circumstances, considering "the

extent and cause of the delay, the prejudice to the State, and the

importance of the [defendant’s] claim in determining whether there

has been an ‘injustice’ sufficient to relax the time limits." Id.

at 580. "Absent compelling, extenuating circumstances, the burden

of justifying a petition filed after the five-year period will

increase with the extent of the delay." Ibid.

Defendant contends he demonstrated excusable neglect, and

rigid enforcement of the time bar will result in a fundamental

injustice. Specifically, he claims the trial court and plea

counsel failed to advise him he could file a motion to withdraw

his guilty plea or that he could file a PCR petition within five

years of his conviction.

In the present case, defendant’s sentencing hearing occurred

in December 2006. He did not file his PCR petition until October

2016, almost ten years later, and well beyond the time bar.

Moreover, the court and plea counsel had no obligation to advise

5 A-4342-16T3
defendant of the PCR time limitations in 2006 or the ability to

file a PCR petition or to withdraw a guilty plea. Defendant’s

ignorance of the law does not constitute excusable neglect. State

v. Murray 162 N.J. 240, 246 (2000). Therefore, defendant failed

to show his delay was due to excusable neglect.

II

To establish a claim of ineffective assistance of counsel,

defendants must satisfy a two-part test: (1) "counsel made errors

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

guaranteed the defendant by the Sixth Amendment," and (2) "the

deficient performance prejudiced the defense." Strickland v.

Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,

52 (1987). Similarly, when a defendant claims ineffective

assistance in connection with a guilty plea, he or she must show:

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

demanded of attorneys in criminal cases'; and . . . '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. Nuñéz-Valdez, 200 N.J. 129, 139 (2009)

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

457 (1994)). Counsel's performance is not deficient if "a

defendant considering whether or not to plead guilty to an offense

receives correct information concerning all of the relevant

6 A-4342-16T3
material consequences that flow from such a plea." State v.

Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).

When a defendant raises a claim for ineffective assistance

of counsel in support of PCR, the judge should grant an evidentiary

hearing "if [the] defendant has presented a prima facie claim in

support of [PCR]." State v. Preciose, 129 N.J. 451, 462 (1992).

To establish a prima facie claim, "defendant must allege specific

facts and evidence supporting his allegations," and "must do more

than make bald assertions that he was denied the effective

assistance of counsel." State v. Porter, 216 N.J. 343, 355 (2013);

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The

defendant must also “demonstrate the reasonable likelihood of

succeeding under" the two-prong Strickland test. Preciose, 129

N.J. at 463.

Applying these standards, we conclude defendant failed to

demonstrate a prima facie showing of ineffective assistance of

plea counsel. Defendant asserts his counsel failed to investigate

his case adequately and pressured him to plead guilty; however,

defendant fails to identify any exculpatory evidence his counsel

could have uncovered upon further investigation. Defendant also

argues he pled guilty due to the short retrial date, the

prosecutor’s bail motion, and the imminent birth of his child.

Defendant provides no basis for attributing those reasons to his

7 A-4342-16T3
counsel. In addition, if counsel did advise defendant to plead

guilty, defendant failed to indicate that advice was outside the

broad range of counsel’s discretion. Moreover, defendant failed

to show that but for counsel’s errors, if any, he would not have

pled guilty. Therefore, we affirm the PCR court’s denial of

defendant’s PCR petition without an evidentiary hearing because

defendant failed to make a prima facie showing of ineffective

assistance of plea counsel.

III

In deciding defendant's motion to withdraw his guilty pleas,

the PCR court addressed the four Slater factors: "(1) whether the

defendant has asserted a colorable claim of innocence; (2) the

nature and strength of defendant's reasons for withdrawal; (3) the

existence of a plea bargain; and (4) whether withdrawal would

result in unfair prejudice to the State or unfair advantage to the

accused." State v. Slater, 198 N.J. 145, 157-58 (2009). Because

post-sentence motions to withdraw a plea must demonstrate that a

"manifest injustice" occurred, "efforts to withdraw a plea after

sentencing must be substantiated by strong, compelling reasons."

Id. at 158, 160 (citing R. 3:2-1). "Following sentencing, if a

defendant seeks to withdraw a guilty plea, the court weighs more

heavily the State's interest in finality and applies a more

8 A-4342-16T3
stringent standard." Norman, 405 N.J. Super. at 160 (citing State

v. McQuaid, 147 N.J. 464, 487 (1997)).

In the present case, the record supports the PCR court's

finding that defendant failed to satisfy the Slater factors. The

judge properly evaluated the relevant facts to find no basis for

a colorable claim of innocence, including defendant’s voluntary

guilty plea and defendant's failure to provide any evidence of

innocence beyond his own statements. Defendant also failed to

present a compelling reason for withdrawal.

Further, defendant entered into a generous plea bargain for

two counts of possession with intent to distribute in the face of

eleven charges spanning two indictments and an accusation.

Withdrawal of defendant's guilty plea would result in unfair

prejudice to the State given the significant length of time between

defendant's plea and his request. Evidence in the case was largely

testimonial and memories of witnesses most likely have faded.

Accordingly, we affirm the PCR court's determination that

defendant failed to meet the high burden of manifest injustice

regarding his request to withdraw his guilty plea.

Affirmed.

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