NOT FOR PUBLICATION WITHOUT THE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-4458-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT D. BANKS,
a/k/a RYHIM JOHNSON,
Defendant-Appellant.
______________________________
Submitted November 12, 2020 – Decided December 9, 2020
Before Judges Fuentes and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 13-10-1416.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Jaimee M. Chasmer, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Vincent D. Banks appeals from an April 24, 2019 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm, substantially for the reasons stated by Judge Frances A.
McGrogan in her thorough and well-reasoned written opinion.
We discern the following facts from the record. On February 27, 2013,
defendant possessed a shotgun without having a firearms purchaser's
identification card (FPIC). On March 5, 2013, he distributed heroin to an
undercover detective, and on March 15, 2013, defendant possessed a Ruger
handgun even though he was previously convicted of federal distribution or
possession with intent to distribute heroin.
Defendant was charged with third-degree possession of a shotgun without
first obtaining an FPIC, N.J.S.A. 2C:39-5(c)(1) (count one); fourth-degree
unlicensed sale of a shotgun, N.J.S.A. 2C:39-9(d) (count two); third-degree
distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count three);
third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count four); first-
degree knowingly maintaining or operating a heroin manufacturing facility,
N.J.S.A. 2C:35-4 (count five); third-degree possession with intent to distribute
drug paraphernalia, N.J.S.A. 2C:36-3 (count six); second-degree possession of
a handgun while committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count
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2
seven); and second-degree possession of a firearm while having previously been
convicted of distribution and possession with intent to distribute heroin in
federal court, N.J.S.A. 2C:39-7(b) (count eight).
In June 2014, defendant pled guilty to third-degree possession of a
shotgun without first obtaining an FPIC card on February 27, 2013, N.J.S.A.
2C:39-5(c)(1) (count one); third-degree distribution of heroin on March 5, 2013,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); and second-
degree possession of a firearm on March 15, 2013, while having been previously
convicted of distribution and possession with intent to distribute heroin in
federal court, N.J.S.A. 2C:39-7(b) (count eight). In exchange for his plea, the
State agreed to recommend an aggregate sentence of fifteen years'
imprisonment, subject to eight years of parole ineligibility. The plea agreement
was based upon defendant receiving consecutive sentences for the three crimes
and mandatory parole disqualification bars relative to the firearms offenses
under the Graves Act, N.J.S.A. 2C:39-5(b), N.J.S.A. 2C:43-6(c).
The plea court found defendant freely and voluntarily admitted he was
previously convicted in federal court of a drug distribution offense .1 He did not
possess an FPIC for his Moss Burke shotgun on February 27, 2013, and fully
1
U.S. v. Vincent D. Banks, No. 4:CR-06-132.
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3
understood his plea agreement and provided truthful answers. The plea court
also credited defendant's testimony that his trial attorney answered all his
questions to his satisfaction.
Thereafter, defendant retained new counsel and filed a motion to withdraw
his guilty plea. On the return date of the motion, defendant absconded and was
not located for approximately five to six months, prompting his new counsel to
withdraw from the case.
At the sentencing hearing scheduled in January 2016, defendant's third
attorney appeared and represented that after conferring with defendant, he was
withdrawing his motion to retract the plea. Defense counsel argued for
concurrent sentences contrary to the terms of the plea agreement. Nonetheless,
the sentencing court imposed consecutive sentences in accordance with the plea
agreement, finding the three crimes were "separate and distinct."
Defendant appealed his sentence through the summary review process
codified under Rule 2:9-11. The matter came before this court for oral argument
on September 21, 2016. Appellate counsel for defendant contended that his
sentence on the possession of a shotgun was illegal because no parole bar was
mandated for a Graves Act violation under N.J.S.A. 2C:39-5(c), and the
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4
sentencing court did not give sufficient reasoning to impose consecutive
sentences under State v. Yarbough, 100 N.J. 627 (1985).
With the consent of counsel, we removed the matter to the plenary
calendar to allow the parties to formally brief the Graves Act issues. While the
appeal was pending, the parties negotiated a new plea agreement through which
defendant was resentenced to a five-year term of imprisonment. The Criminal
Part judge executed an amended judgment of conviction. The appeal was
dismissed with prejudice on November 29, 2017.
On June 8, 2018, defendant filed a pro se PCR petition alleging his
appellate counsel was ineffective for stipulating to a dismissal of his direct
appeal because in addition to raising the issue of an illegal sentence, his direct
appeal also addressed the alleged impropriety of imposing consecutive
sentences. Further, defendant argued his trial counsel was ineffective for failing
to communicate, review discovery, or consult with him during plea negotiations.
After hearing oral argument on April 12, 2019, Judge McGrogan found
defendant's arguments were belied by the record and she denied defendant's PCR
petition without an evidentiary hearing. A memorializing order accompanied
by a written opinion was entered on April 24, 2019.
On this appeal, defendant presents the following arguments:
A-4458-18T3
5
POINT ONE
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON MR. BANKS' CLAIM THAT TRIAL
COUNSEL RENDERED INEFFECTIVE
ASSISTANCE. (Not Raised Below).
POINT TWO
MR. BANKS IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS APPELLATE
ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE BY DISMISSING HIS DIRECT
APPEAL AND THAT HIS TRIAL ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL FOR FAILING TO COMMUNICATE,
CONSULT, OR REVIEW DISCOVERY, ALL OF
WHICH LED TO HIS INADEQUATE
REPRESENTATION DURING PLEA
NEGOTIATIONS.
Having canvassed the entire record presented to us, we conclude these
arguments lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We add the following comments.
A defendant's claim of ineffective assistance of counsel is considered
under the standards established 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). The Strickland test applies to challenges to guilty pleas based on alleged
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). A
A-4458-18T3
6
defendant must show that his or her attorney failed to provide advice that "was
within the range of competence demanded of attorneys in criminal cases." Id.
at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A defendant
also must show "there is a reasonable probability that, but for counsel's errors,
would not have pleaded guilty and would have insisted on going to trial." Id. at
59.
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a prima facie
claim of ineffective assistance, material issues of disputed facts lie outside the
record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State
v. Porter, 216 N.J. 343, 355 (2013).
"[I]n order to establish a prima facie claim, [the defendant] must do more
than make bald assertions that he was denied the effective assistance of counsel.
[The defendant] must allege facts sufficient to demonstrate counsel's alleged
substandard performance." Cummings, 321 N.J. Super. at 170. The defendant
must establish, by a preponderance of the credible evidence, that she is entitled
to the required relief. State v. Nash, 212 N.J. 518, 541 (2013).
A-4458-18T3
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We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462
(1992). Following our review of defendant's arguments in light of the record
and applicable legal principles, we are satisfied defendant's PCR petition was
properly denied without an evidentiary hearing for the reasons outlined by Judge
McGrogan in her comprehensive written opinion.
Affirmed.
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