STATE OF NEW JERSEY VS. CHARLES L. PURYEAR (12-07-0296, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-2823-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES L. PURYEAR, a/k/a
CHARLES POURYEAR,
CHARLES LAMONT PURYEAR,
CHARLES PURYER and LAMAR
BOYD,

Defendant-Appellant.
_____________________________

Submitted March 1, 2021 – Decided April 20, 2021

Before Judges Sabatino and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 12-07-0296.

Joseph E. Krakora, Public Defender, attorney for
appellant (Abby P. Schwartz, Designated Counsel, on
the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah C. Hunt, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM

Defendant appeals from the December 11, 2019 Law Division order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

Defendant and codefendant Marcus Brown were indicted and charged

with numerous crimes in Essex and Sussex Counties. The Essex County

indictment included conspiracy, murder, 1 armed robbery, and weapons-related

offenses. The Sussex County indictment, which is the subject of this appeal,

included first-degree robbery, second-degree burglary, third-degree theft, third-

and fourth-degree aggravated assault, and weapons-related offenses. The Essex

County charges stemmed from a fatal shooting that occurred on November 2 5,

2011, in Newark, when defendant fired nine shots at a group of people during

the commission of a robbery, hitting and killing one person. The Sussex County

charges stemmed from an armed robbery that occurred several days later, on

December 4, 2011, in a motel in Wantage, after which both defendants were

apprehended near the scene.

1
Defendant was charged with purposeful and knowing murder, N.J.S.A. 2C:11-
3(a)(1)(2), as well as felony murder, N.J.S.A. 2C:11-3(a)(3), while codefendant
Brown was charged with felony murder only.
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 The following day, December 5, 2011, each defendant was separately

questioned twice by law enforcement officers from different agencies.

Defendants were interviewed by members of the New Jersey State Police about

the Wantage robbery and by Essex County detectives about the Newark

shooting. At the beginning of each interview, defendants were advised of their

Miranda2 rights and signed Miranda waiver forms. All four interviews were

recorded. Each defendant made incriminating statements during each interview

and later moved to suppress the statements in the Essex County case. Because

the State moved to use portions of the statements that did not relate to the Essex

County charges under N.J.R.E. 404(b), the admissibility of all four statements

was adjudicated in a joint Miranda hearing in Essex County.

Following the hearing, on December 17, 2014, an Essex County judge

suppressed defendant's statement concerning the Wantage robbery, but admitted

the statement concerning the Newark shooting. As to codefendant Brown's

statements, the judge suppressed the statement concerning the Newark shooting ,

but admitted the statement concerning the Wantage robbery. The judge

determined that each defendant's Miranda rights had been violated in connection

with the excluded statements, but not the admitted statements. By leave granted,

2
Miranda v. Arizona, 384 U.S. 436 (1966).
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we reviewed the judge's Miranda rulings and, in a published opinion, affirmed

the decisions. State v. Puryear, 441 N.J. Super. 280 (App. Div. 2015).

After we issued our decision, on July 14, 2015, the judge dismissed the

Essex County indictment as to codefendant Brown on the State's motion. Brown

had previously pled guilty to charges contained in the Sussex County indictment,

specifically robbery and certain persons not to have weapons, and was sentenced

in accordance with the plea agreement to an aggregate term of twelve years'

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.3

Unlike codefendant Brown, the State continued to prosecute defendant on

both indictments notwithstanding the suppression of his statement in the

Wantage robbery. As a result, on March 8, 2016, defendant entered a negotiated

guilty plea to charges contained in the Essex County indictment, specifically,

aggravated manslaughter as a lesser included offense of murder, two counts of

first-degree robbery, and second-degree unlawful possession of a handgun. On

May 2, 2016, defendant was sentenced in accordance with the plea agreement to

an aggregate term of twenty-five years' imprisonment, subject to NERA.

3
We affirmed the denial of Brown's PCR petition in an unpublished decision.
See State v. Brown, No. 4134-16 (App. Div. June 25, 2018).
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 Thereafter, on April 13, 2017, defendant entered a negotiated guilty plea

to first-degree robbery and second-degree certain persons not to have weapons

as charged in the Sussex County indictment. Under the terms of the plea

agreement, on the first-degree charge, the State would move for an extended

term pursuant to N.J.S.A. 2C:43-7.1(b)(2), mandating an "[e]xtended [t]erm for

[r]epeat [v]iolent [o]ffenders" of "between [twenty] years and life

imprisonment," N.J.S.A. 2C:43-7, on a first degree crime. To support the

motion, the State relied on defendant's 2006 conviction for a fourth-degree

regulatory firearms offense, and 2006 conviction for third-degree aggravated

assault, as well as the 2016 convictions arising from the Essex County

indictment. The State agreed that regardless of the outcome of the motion, it

would not seek an aggregate sentence in excess of thirty years' imprisonme nt to

run concurrent, but not coterminous, with defendant's Essex County sentence.

Subsequently, the judge granted the State's extended term motion and, on June

16, 2017, sentenced defendant to thirty years' imprisonment, subject to NERA. 4

4
Pursuant to the plea agreement, because the State's extended term motion was
granted, at sentencing, the State moved to dismiss the certain persons charge
and recommended the imposition of a thirty-year sentence on the robbery
charge.
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 On February 8, 2018, we affirmed defendant's thirty-year sentence on a

Sentence Only Argument (SOA) calendar, finding "that the sentence [was] not

manifestly excessive or unduly punitive and [did] not constitute an abuse of

discretion." See R. 2:9-11. Thereafter, defendant filed a timely pro se petition

for PCR, alleging ineffective assistance of counsel (IAC). In his supporting

certification, defendant asserted, among other things, 5 that his attorney was

ineffective by "fail[ing] to properly advise [him] concerning the plea and the

ensuing exposure to an extended term of incarceration." Defendant also averred

that "[t]he [S]tate used an illegal sentence to obtain the plea" and that his

"[thirty-year] sentence . . . [was] disproportionate to [his] co-defendant['s

twelve-year] sentence . . . and should be brought in line with . . . [that] sentence."

In his counseled brief, defendant similarly argued his plea counsel "was

ineffective for . . . fail[ing] to advise [him] as to the ramifications of the [Essex

County] plea" and "the effect that would have on [his Sussex County] sentence,"

and failing to advise him concerning his "ensuing exposure to an extended term."

He reiterated that the State "used an illegal sentence to obtain his guilty plea,"

5
The other claims raised by defendant in his petition have been abandoned on
appeal. See Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety,
421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining that claims not
addressed in the merits brief are "consider[ed] . . . abandoned").
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and that his sentence was disproportionate to his codefendant's. He also argued

his appellate counsel was ineffective for failing to pursue "all of the appropriate

issues which should have been raised" on direct appeal.

Following oral argument, the PCR judge entered an order on December

11, 2019, denying defendant's petition. In an oral decision, the judge reviewed

the factual background and procedural history of the case, applied the governing

legal principles, and concluded defendant failed to establish a prima facie case

of IAC. Specifically, the judge found defendant failed to show by a

preponderance of the credible evidence that counsel's performance fell below

the objective standard of reasonableness set forth in Strickland v. Washington,

466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz,

105 N.J. 42, 49-53 (1987), and that the outcome would have been different

without the purported deficient performance as required under the second prong

of the Strickland/Fritz test. See State v. DiFrisco, 137 N.J. 434, 456-57 (1994)

(applying the Strickland test "to challenges of guilty pleas based on [IAC]"

(citing Hill v. Lockhart, 474 U.S. 52, 58 (1985))); see also State v. Gaitan, 209

N.J. 339, 350 (2012) ("With respect to both prongs of the Strickland test, a

defendant asserting [IAC] on PCR bears the burden of proving his or her right

to relief by a preponderance of the evidence.").

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 Based on his review of the April 13, 2017 plea colloquy, the judge found

that defendant's assertion that he was not properly advised of the ramifications

of his guilty plea, including his exposure to an extended term, was belied by the

record. Further, "there [were] no factual disputes" because defendant did not

provide the court with "an affidavit or a certification or anything else to dispute

what th[e] plea transcript reveal[ed]." Further, the judge determined "[t]here

was nothing . . . that was illegal about the sentence . . . imposed." 6 Additionally,

in rejecting the proportionality claim, the judge explained that defendant's

conviction "in Essex [County] for aggravated manslaughter . . . was the

distinguishing feature for justification of the [thirty]-year sentence." The judge

pointed out that defendant's proportionality argument was unfounded because

codefendant Brown's "charges in Essex [County] were dismissed," and thus

"there was no conviction for a homicide on Brown's record" as was the case for

defendant. Moreover, according to the judge, an evidentiary hearing was not

warranted.

On appeal, defendant raises the following arguments for our

consideration:

POINT I

6
Indeed, PCR counsel conceded "there [was] no question that it was a legal
sentence."
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 BY FAILING TO CONSOLIDATE THE CASES IN
BOTH SUSSEX AND ESSEX COUNTIES AND IN
FAILING TO PLEA BARGAIN IN ONE COUNTY,
COUNSEL FOR DEFENDANT WAS INEFFECTIVE
IN THAT DEFENDANT RECEIVED A SENTENCE
OF [TWENTY-FIVE] YEARS IN PRISON, SUBJECT
TO [NERA] WITH A CONCURRENT EXTENDED
TERM OF [THIRTY] YEARS IN PRISON ALSO
SUBJECT TO [NERA], WHILE HIS CO-
DEFENDANT RECEIVED [TWELVE] YEARS IN
PRISON SUBJECT TO [NERA], IN VIOLATION OF
HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS.

....

[A.] Counsel Was Ineffective In Failing To
Move To Consolidate The Indictments.

[B.] Counsel Was Ineffective As He
Permitted Defendant To Enter A Guilty
Plea And Receive A Prison Sentence That
Was Vastly Disproportionate To That Of
His Co-Defendant's.

[C.] The Combination Of Lack Of
Consolidation And The Disparity Of The
Sentences Require A Remand.

In order to establish the Strickland/Fritz test to set aside a guilty plea based

on IAC, "a defendant must show 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-

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Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting DiFrisco, 137

N.J. at 457). As to the prejudice prong, "a [defendant] must convince the court

that a decision to reject the plea bargain" and "insist on going to trial" would

have been "rational under the circumstances." State v. Maldon, 422 N.J. Super.

475, 486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372

(2010)). That determination should be "based on evidence, not speculation."

Ibid.

The mere raising of a PCR claim does not entitle the defendant to an

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999). Rather, "view[ing] the facts in the light most favorable to a defendant,"

State v. Preciose, 129 N.J. 451, 463 (1992), PCR judges should grant evidentiary

hearings in their discretion only if the defendant has presented a prima facie

claim of IAC, material issues of disputed fact lie outside the record, and

resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter,

216 N.J. 343, 355 (2013); State v. Marshall, 148 N.J. 89, 158 (1997).

Here, we are satisfied from our review of the record that defendant failed

to make a prima facie showing of IAC within the Strickland/Fritz test to warrant

PCR relief or an evidentiary hearing. See State v. Brewster, 429 N.J. Super.

387, 401 (App. Div. 2013) ("[W]e review under the abuse of discretion standard

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the PCR court's determination to proceed without an evidentiary hearing.");

State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010) ("[I]t is within

our authority to conduct a de novo review of both the factual findings and legal

conclusions of the PCR court" where, as here, no evidentiary hearing was

conducted. (citations and internal quotation marks omitted)).

Defendant argues plea counsel was ineffective for failing to move to

consolidate the Sussex and Essex County cases and for permitting him to plead

guilty and receive a "sentence . . . disproportionate to that of his co-defendant."

The State correctly points out that defendant raises the failure to consolidate

claim for the first time on appeal. "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). However, we are hard pressed to disregard

defendant's failure to consolidate claim given our conclusion in State v.

Rountree, 388 N.J. Super. 190, 212 (App. Div. 2006), "that when a defendant

has indictments pending in more than one vicinage, defense counsel is obligated

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to consider the factors set forth in Rule 3:25A-1,[7] and to move for consolidation

at an early stage where appropriate."

In Rountree, defendant shot a man in Essex County during an altercation,

"leaving him a paraplegic" and, "[t]wo weeks later," robbed a woman at

gunpoint in Camden County. Id. at 196. We noted that despite "the distance

between the crime locations and the difference in the crimes charged," "[t]he

crimes . . . occurred only two weeks apart," "[d]efendant . . . had no prior record

of indictable offenses," and "the result of non-consolidation . . . had potentially

. . . drastic consequences . . . ." Id. at 211. Thus, "[w]e agree[d] with defendant

that his defense counsel in each county had an obligation to file the contemplated

7
Under the rule, a defendant "may move . . . for consolidation for purposes of
entering a plea or for sentencing." R. 3:25A-1. In deciding the consolidation
motion,

the judge shall consider: (1) the nature, number, and
comparative gravity of crimes committed in each of the
respective counties; (2) the similarity or connection of
the crimes committed including the time span within
which the crimes were committed; (3) the county in
which the last crime was committed; (4) the county in
which the most serious crime was committed; (5) the
defendant's sentencing status; (6) the rights of the
victims and the impact on any victim's opportunity to
be heard; and (7) any other relevant factor.

[Ibid.]

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motion for consolidation for purposes of attempting to negotiate a single plea

agreement." Id. at 212-13. See also State v. Pillot, 115 N.J. 558, 569 (1989)

(explaining that if Rule 3:25A-1's predecessor had been invoked, 8 consolidation

would have been "required" where the defendant, a first-time offender, faced

sentencing in two neighboring counties as a result of a nine-week crime spree

involving six armed robberies, three in each county).

However, in Rountree, we determined that "counsels' failure to file such

a motion establishes only the first prong of the [Strickland/Fritz] standard." 388

N.J. Super. at 213. Assuming that the consolidation motion "would have been

granted in both counties," we held that the "[d]efendant did not present a prima

facie case to satisfy the second Strickland prong: that consolidation likely would

have made a difference." Id. at 213. We made that determination because the

"defendant rejected a plea offer that was as good as he reasonably could have

expected if the cases had been consolidated for plea negotiations or sentencing"

and "[t]here [was] no reason to conclude that he would have accepted the same

offer if it had been made after an order of consolidation." Ibid.

8
"At the time, Rule 3:25A-1 allowed the prosecutor but not the defendant to
move for consolidation." Rountree, 388 N.J. Super. at 210.
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 Likewise, here, even if we conclude that counsel should have moved for

consolidation and that consolidation would have been granted, defendant failed

to demonstrate that consolidation "likely would have made a difference"

because, like Rountree, the plea offer "was as good as he reasonably could have

expected if the cases had been consolidated for plea negotiations or sentencing."

Ibid. In support, we point out that the Sussex County prosecutor conferred a

substantial benefit on defendant by recommending that the term run concurrent,

though not coterminous, to the Essex County sentence. Moreover, even if a

consolidation motion had been granted, defendant would still have been eligible

for an extended term. See State v. Parks, 192 N.J. 483, 487 (2007) (noting that

N.J.S.A. 2C:43-7.1 "applies to a defendant convicted of an enumerated crime

who has been convicted of two or more of those crimes that were committed on

prior and separate occasions, regardless of the dates of the convictions" (quoting

Assemb. Judiciary Comm. Statement to S.B. 1733 (2003))).

Additionally, unlike Pillot, where each sentencing judge evaluated the

defendant's similar record differently, here, the sentencing judge in each case

found the same aggravating factors, factors three, six, and nine, and no

mitigating factors. 115 N.J. at 562-63. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk

that the defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he

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extent of the defendant’s prior criminal record and the seriousness of the

offenses of which the defendant has been convicted"); and N.J.S.A. 2C:44-

1(a)(9) ("[t]he need for deterring the defendant and others from violating the

law"). When defendant was sentenced in the Sussex County case, the parties as

well as the judge were keenly aware of the sentence defendant was serving in

Essex County. Indeed, the judge acknowledged that the fact that the sentences

were concurrent but not coterminous "serv[ed] the interest of justice" because

the Wantage crimes "were separate crimes, on separate dates, involving separate

formulations of planning and intent and execution," and separate victims. Thus,

we are satisfied defendant failed to establish a prima facie case of IAC on his

failure to consolidate claim.

Turning to the sentencing disparity claim, to be sure, "[e]nsuring a

reasonable degree of uniformity in sentencing is an essential feature of our

system of justice." State v. Case, 220 N.J. 49, 63 (2014). We recognize that our

Supreme Court has "consistently stressed uniformity as one of the major

sentencing goals in the administration of criminal justice." State v. Roach, 146

N.J. 208, 231 (1996). Indeed, "[o]ne of the Code's paramount goals is to

eliminate arbitrary and idiosyncratic sentencing so that similarly situated

defendants receive comparable sentences." Case, 220 N.J. at 63.

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 Thus, "[d]isparity may invalidate an otherwise sound and lawful

sentence." Roach, 146 N.J. at 232. See State v. Hicks, 54 N.J. 390, 391-92

(1969) (reducing defendant's sentence to that imposed on co-defendant whose

participation in the homicide was greater than defendant's). However, not all

disparate sentences are unfair or unjust, and "a sentence of one defendant not

otherwise excessive is not erroneous merely because a co-defendant's sentence

is lighter." Id. at 391. "The question therefore is whether the disparity is

justifiable or unjustifiable." Roach, 146 N.J. at 233.

The Roach Court "recognize[d] that some disparity in sentencing is

inevitable in the administration of criminal justice." Id. at 234. However, "to

avoid or reduce" unjustifiable disparity, the Court imposed an obligation on

sentencing courts to "exercise a broader discretion to obviate excessive

disparity." Id. at 233. To that end,

[t]he trial court must determine whether the co-
defendant is identical or substantially similar to the
defendant regarding all relevant sentencing criteria.
The court should then inquire into the basis of the
sentences imposed on the other defendant. It should
further consider the length, terms, and conditions of the
sentence imposed on the co-defendant. If the co-
defendant is sufficiently similar, the court must give the
sentence imposed on the co-defendant substantive
weight when sentencing the defendant in order to avoid
excessive disparity. Sentencing based on such added
considerations will accommodate the basic discretion

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 of a sentencing court to impose a just sentence on the
individual defendant in accordance with the sentencing
guidelines while fulfilling the court's responsibility to
achieve uniform sentencing when that is possible.

[Id. at 233-34.]

Based on our review of the record, we agree with the PCR judge that the

sentencing disparity between defendant and codefendant Brown was justifiable.

Simply put, while both defendants stood convicted of the same crimes in Sussex

County, defendant and codefendant Brown were not similarly situated

defendants. Defendant had an extensive criminal history consisting of juvenile

adjudications for aggravated assault, receiving stolen property, and criminal

trespass as well as an adult record. His adult record, which subjected him to a

mandatory extended term as a persistent violent offender, included the

aggravated manslaughter and other convictions from the Essex County

indictment. As a result, after granting the State's motion for extended term

sentencing, the judge found aggravating factors three, six, and nine, and no

mitigating factors in imposing the sentence on defendant.

On the other hand, as we noted in our unpublished opinion affirming the

denial of codefendant Brown's PCR petition, the sentencing judge there "found

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aggravating factors three and nine and mitigating factor three." 9 Brown, slip op.

at 6. Significantly, because the Essex County indictment had been dismissed

against codefendant Brown, unlike defendant, codefendant Brown did not have

a prior homicide, robbery or weapons-related conviction when he appeared for

sentencing, and he was not extended term eligible. Moreover, at the Sussex

County sentencing hearing, defense counsel strenuously argued that defendant

should be sentenced to a twenty-five-year NERA term to run concurrent with

the Essex County sentence in part because codefendant Brown was sentenced to

a twelve-year NERA term for the same charges. Defense counsel explained to

the judge that although both defendants had been charged in the Essex County

indictment, the suppression of codefendant Brown's statement resulted in the

dismissal of the indictment against him. Thus, the sentencing judge was aware

of all relevant sentencing criteria for both defendants, including the length of

the codefendant's sentence and the rationale for the more lenient sentence , as

outlined in Roach. 146 N.J. at 233-34.

Affirmed.

9
See N.J.S.A. 2C:44-1(b)(3) ("[t]he defendant acted under a strong
provocation").
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