NOT FOR PUBLICATION WITHOUT THE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-4750-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EARL BARLEY, a/k/a
EARLY BARLEY,
Defendant-Appellant.
________________________
Submitted September 16, 2020 – Decided August 6, 2021
Before Judges Fuentes and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 09-10-
2353, 10-10-2481, 11-03-0776, and 12-02-0315.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Mario C. Formica, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
On December 16, 2011, defendant Earl Barley pled guilty pursuant to a
negotiated plea agreement to fourth degree possession of marijuana with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(l2), third-degree possession of
marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(l), and second degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The State charged these
three offenses in three separate indictments. Among the many questions the
judge asked defendant at the plea hearing, the judge specifically inquired
whether defendant was satisfied with the plea agreement negotiated by his
attorney and with the legal services the attorney provided overall. Defendant
answered "yes" to both of these questions.
The judge release defendant on home confinement, conditioned upon him
having a global positioning satellite (GPS) tracking device on his person at all
times. The judge scheduled his sentencing hearing in March 2012. Soon
thereafter, defendant violated the terms of his release, removed the GPS tracking
device, and absconded. He was apprehended a year later and charged with
fourth degree bail jumping, N.J.S.A. 2C:29-7.
A-4750-18
2
Defendant filed a Slater1 motion to withdraw his guilty pleas, which was
heard and promptly denied as baseless by the judge. Defendant thereafter pled
guilty to the bail-jumping charge and was sentenced on May 8, 2013, to an
aggregate term of five years, with three years of parole ineligibility on all four
charges. In his direct appeal to this court, defendant argued that any
incriminating statements he made to the police officers should have been
suppressed because he was not apprised of his Miranda2 rights and the trial judge
erred when he denied his motion to withdraw his guilty plea. We rejected these
arguments and affirmed. State v. Barley, A-5249-12, (App. Div. June 15, 2015).
On April 11, 2018, defendant filed a pro se post-conviction relief (PCR)
petition alleging ineffective assistance of counsel. He claimed his attorney
"failed to investigate witness statement and video[;] failed to pursue defenses,
and ultimately forced [him] to take State's plea [offer]." The court assigned
counsel to represent defendant and the matter came on for oral argument before
Judge Donna M. Taylor on June 13, 2019. After considering defendant's
unsubstantiated claims and hearing the arguments of counsel, Judge Taylor
1
State v. Slater, 198 N.J. 145, 157-58 (2009).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4750-18
3
found defendant did not make out a prima facie case of ineffective assistance of
counsel:
The petitioner asserts these shortcomings prejudiced
his case; however, he has failed to substantiate this
claim. At the plea colloquy he denied that he had any
defenses and further he was asked whether he had at the
time of his factual basis . . . , quote, "Control," quote,
"Over the handgun resulting in his charge for unlawful
possession of the handgun?" And he answered, "Yes."
He has failed to show how his counsel’s investigative
actions constitute ineffective assistance of counsel
outside the scope of professional competent assistance.
Therefore his claim of ineffective counsel is denied.
Against this backdrop, defendant now appeals, raising the following
arguments:
POINT ONE
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION WITHOUT AN
EVIDENTIARY HEARING WHERE IT DID NOT
MAKE ANY FACTURAL [SIC] FINDINGS
INVOLVING THE ATTORNEY-CLIENT
DISCUSSIONS ABOUT THE STRENGTHS AND
WEAKNESSES OF THE CASE.
A. The Performance Of Defendant's Trial
Attorney Was Deficient Where He Did Not
Consult With Defendant About The
Strengths And Weaknesses Of The Case
Before Defendant Accepted The Formal
Plea Offer.
A-4750-18
4
B. Defendant Demonstrated That He Was
Prejudiced By His Trial Attorney's
Performance Where He Would Have
Insisted On Going To Trial But For Such
Deficient Advice.
POINT TWO
THE PCR COURT ERRED WHERE IT DID NOT
CONDUCT AN EVIDENTIARY HEARING
WITHOUT DETERMINING AS A MATTER OF
FACT WHETHER DEFENDANT'S PRIOR
ATTORNEY DISCUSSED WITH HIS CLIENT THE
STRENGTHS AND WEAKNESSES OF GOING TO
TRIAL.
We reject these arguments and affirm substantially for the reasons
expressed by Judge Taylor in her oral decision. We review a claim of ineffective
assistance of counsel under the two-prong test established by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and
subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987). First, a defendant must demonstrate that defense counsel's performance
was deficient. Strickland, 466 U.S. at 687. Second, he must show there exists
"a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694.
Judge Taylor correctly applied this standard to find that defendant's bare
assertions impugning the professional competence of his attorney does not
A-4750-18
5
satisfy prong one under Strickland's analytical paradigm. We also agree with
Judge Taylor's conclusion that defendant did not present any competent
evidence of "prejudice" to satisfy prong two under Strickland. A judge
reviewing a PCR petition has the discretion to conduct an evidentiary hearing
only upon the establishment of a prima facie case in
support of post-conviction relief, a determination by the
court that there are material issues of disputed fact that
cannot be resolved by reference to the existing record,
and a determination that an evidentiary hearing is
necessary to resolve the claims for relief. To establish
a prima facie case, defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the
facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits.
[R. 3:22-10(b).]
Here, Judge Taylor found defendant did not establish a prima facie case
of ineffective assistance of counsel. In this light, we discern no legal basis to
conclude Judge Taylor abused her discretion when she denied defendant's
application for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 460
(1992).
Affirmed.
A-4750-18
6