STATE OF NEW JERSEY VS. SHIQUAN D. BELLAMY (10-10-1805 AND 10-11-2041, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3950-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHIQUAN D. BELLAMY,

Defendant-Appellant.
___________________________

Submitted September 22, 2020 – Decided October 5, 2020

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 10-10-1805
and 10-11-2041.

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

Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).

PER CURIAM
 Defendant Shiquan D. Bellamy faced two indictments charging him with

three homicides and other related charges 1 when he accepted the State's offer of

concurrent twenty-five-year State prison terms in return for his guilty pleas to

three amended charges of first-degree manslaughter, N.J.S.A. 2C:11-4(a); all

three terms were to run consecutive to two life sentences defendant was already

serving. After withdrawing his motion to retract the plea, defendant was

sentenced in accordance therewith. He appeals from the order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing,

arguing:

POINT ONE

[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR PROVIDING
AFFIRMATIVE MISADVICE, FAILING TO
INVESTIGATE, AND FAILING TO REVIEW
DISCOVERY, ALL DURING THE PRETRIAL

1
Indictment 10-10-1805 charged: Two counts of murder, N.J.S.A. 2C:11-
3(a)(1) and N.J.S.A. 2C:11-3(a)(2); two counts of felony murder, N.J.S.A.
2C:11-3(a)(3); two counts of armed robbery, N.J.S.A. 2C:15-1; six counts of
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two
counts of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); one count
unlawful possession of a rifle, N.J.S.A. 2C:39-5(c)(1); and one count of certain
persons not to have weapons, N.J.S.A. 2C:39-7(b). Indictment 10-11-2041
charged: One count of murder, N.J.S.A. 2C:11-3(a)(1) and 2C:11-2(a)(2); one
count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a);
and one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(2).
A-3950-18T1
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 PROCESS, WHICH LED HIM TO PLEAD GUILTY
WHEN HE OTHERWISE WOULD HAVE GONE TO
TRIAL.

POINT TWO

THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON [DEFENDANT'S] CLAIM THAT
COUNSEL RENDERED INEFFECTIVE
ASSISTANCE WHEN HE TOLD HIM THAT THE
JURY WOULD HEAR ABOUT HIS LIFE
SENTENCES AND FIND HIM GUILTY.

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

its legal conclusions de novo because no evidentiary hearing was conducted,

State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), and determining

defendant did not present a prima facie case of ineffective assistance of counsel,

we affirm.

An evidentiary hearing should be held only if a defendant presents "a

prima facie claim in support of [PCR]." State v. Preciose, 129 N.J. 451, 462

(1992); R. 3:22-10(b). In order to establish a prima facie case, "a defendant

must demonstrate the reasonable likelihood of succeeding under the test set forth

in Strickland[.]"2 Preciose, 129 N.J. at 463. Merely raising a claim for PCR

2
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-pronged test formulated in Strickland v. Washington, 466

A-3950-18T1
3
without more does not entitle a defendant to an evidentiary hearing. State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A "defendant must

allege specific facts and evidence supporting his allegations," State v. Porter,

216 N.J. 343, 355 (2013), and "do more than make bald assertions that he was

denied the effective assistance of counsel," Cummings, 321 N.J. Super. at 170.

Defendant contends he could not make a fully informed decision to plead

guilty due to his counsel's ineffectiveness during plea negotiations, alleging

counsel failed to investigate, obtain and review discovery with him, told him

that a motion to change venue would be denied without the ability to appeal, and

that the jury would hear about his life sentences even if he did not testify .

Defendant argues his counsel never questioned an eyewitness in

connection with the shotgun death charged in Indictment 10-11-2041—which

defendant purports was caused by an accidental discharge—to find out what the

eyewitness "could have said to help his case"; and, notwithstanding his

U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment," then by proving he suffered prejudice due to counsel's deficient
performance, Strickland, 466 U.S. at 687, 691-92; see also Fritz, 105 N.J. at 52.
Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome. Fritz, 105 N.J. at 58.

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statement to the police that he was present, armed 3 and participated in the

scheme to rob the shooting victims, failed to investigate witnesses in the area of

the two homicides charged in Indictment 10-10-1805, or talk to the friend to

whose house he went after he left the scene of those crimes to corroborate that

defendant was not present and did not shoot the victims. But, defendant did not

support his arguments with affidavits or certifications from any of the potential

witnesses or reveal specific facts counsel's investigation would have uncovered.

See Cummings, 321 N.J. Super. at 170 (citing R. 1:6-6). Nor did he point to any

witness statement that backed his arguments. In fact, he has not performed any

of the investigations which he complains his counsel neglected, making nothing

more than bald assertions as to what the investigations would have revealed. In

other words, defendant did not meet the mandate that a defendant identify what

the investigation would have revealed and demonstrate that the evidence

probably would have changed the result. Fritz, 105 N.J. at 64-65 (citing United

States v. Rodgers, 755 F.2d 533, 541 (7th Cir. 1985)).

So too, defendant has not satisfied the second Strickland/Fritz prong by

specifying what discovery counsel failed to review with him and how a review

of that discovery would have made a difference in the case; that is, how his

3
Defendant told police the handgun he possessed was inoperable.
A-3950-18T1
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decision to plead guilty was impacted by his counsel's failure to review

particular items in discovery.

Defendant also failed to support his claims regarding counsel's misadvice

with anything except his word that counsel advised him the judge would not

grant the motion for change of venue defendant asked counsel to file and no

appeal could be taken, and the jury would "automatically know . . . he was

serving two life sentences" even if he did not testify at trial.

As to the former contention, although defendant claims in his merits brief

both "cases were highly publicized in the local news," he did not reveal the

nature and scope of that publicity by submitting the news items. Moreover, he

did not show the motion would have been successful by proffering evidence that

a change of venue was "necessary to overcome the realistic likelihood of

prejudice from pretrial publicity." State v. Williams, 93 N.J. 39, 67 n.13 (1983).

Absent any proffer by defendant, we are unable to determine if the alleged

pretrial publicity simply reported the facts of the case or was presumed or

actually prejudicial so as to make seating an impartial jury impossible, requiring

a change of venue. See State v. Harris, 156 N.J. 122, 142-45 (1998). Because

he did not show a reasonable probability "that the motion would have been

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successful," defendant failed to establish defense counsel was ineffective. See

State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003).

We also note defendant has not cited to any portion of a transcript or other

portion of the record, or submitted an affidavit or certification of counsel, that

he advised defendant his life terms would be disclosed to the jury. We recognize

such advice may very well have been given in a privileged consultation.

Nevertheless, we agree with the PCR court that defendant failed to prove "there

is a reasonable probability that, but for counsel's errors, [defendant] would not

have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart,

474 U.S. 52, 59 (1985), see also State v. DiFrisco, 137 N.J. 434, 457 (1994).

Although the PCR court did not include defendant's allegation concerning

counsel's advice about disclosure of his life sentences to the jury in finding

all indications point to the conclusion that it would not
have been rational for [defendant] to insist upon going
to trial when he was already serving a life sentence on
other charges, even had counsel recommended that
[defendant] make the motion for change of venue,
reviewed evidence with [defendant], or conducted more
thorough pretrial investigation[,]

we agree that same rationale applies to that allegation.

Defendant was facing a double-life term. The plea offer he accepted—an

aggregate twenty-five-year term on three concurrent sentences, albeit

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consecutive to the double-life term—was less than the minimum he faced—at

least two, if not three, thirty-year terms without parole eligibility—if convicted

of the three homicides at trial. There was no upside to rejecting the plea offers

on aggravated manslaughter charges and going to trial, considering defendant

admitted to the felony murder of two individuals and to the accidental shooting

of another as he carried a loaded shotgun on a public street. Defendant makes

no proffer as to how a better result would have been realized if he went to trial.

Considering our de novo review, Blake, 444 N.J. Super. at 294, we decline

to remand this matter for the PCR court to address defendant's argument

regarding the misadvice about the disclosure of his life terms to the jury. See

R. 3:22-11 ("In making [a] final determination upon a [PCR] petition, the court

shall state separately its findings of fact and conclusions of law[.]"). Defendant

failed to establish a prima facie case, and the PCR court properly denied his

request for an evidentiary hearing.

Affirmed.

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