NOT FOR PUBLICATION WITHOUT THE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-0475-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWAYNE WILSON,
Defendant-Appellant.
____________________________
Submitted January 31, 2017 – Decided August 4, 2017
Before Judges Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 07-04-0720.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Lillian Kayed,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Dwayne Wilson appeals an order denying his post-
conviction relief (PCR) petition without an evidentiary hearing.
We affirm.
The criminal charges in this matter arose out of the stabbing
deaths of defendant's sister and two of her children, and the
stabbing of defendant's sister's other child, who survived.
Defendant's sister was stabbed twenty-one times. The children who
died were stabbed eleven and twelve times respectively. The
surviving child was stabbed ten times.
Defendant was charged in a 2007 indictment with: three counts
of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (counts one,
two and three); three counts of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (counts five, six and seven); first-degree
attempted murder, N.J.S.A. 2C:11—3 and N.J.S.A. 2C:5-1 (count
four); first-degree robbery, N.J.S.A. 2C:15-1 (count eight);
fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d)
(count nine); third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count ten); and third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-
10(a)(1) (count eleven).
Defendant pleaded guilty to counts one, two and three as
amended to charge first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a), and to count four as amended to charge second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1).
At sentencing, the court found the following aggravating
factors: one, the nature and circumstances of the offense,
2 A-0475-15T2
defendant's role in it, and that it was committed in an especially
heinous, cruel or depraved manner, N.J.S.A. 2C:44-1(a)(1); two,
the gravity and seriousness of the harm inflicted on the victims,
including that defendant knew the victims were particularly
vulnerable or incapable of resistance due to extreme youth,
N.J.S.A. 2C:44-1(a)(2); three, the risk that defendant will commit
another offense, N.J.S.A. 2C:44-1(a)(3); and six, the nature and
extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6). The
court did not find any mitigating factors and determined the
aggravating factors "far outweigh[ed]" the non-existent mitigating
factors.
In accordance with the terms of defendant's plea agreement
and for the reasons set forth by the court, defendant was sentenced
to concurrent thirty-year custodial terms on the aggravated
manslaughter convictions, and a consecutive ten-year sentence on
the aggravated assault conviction. Each of the sentences was
subject to the requirements of the No Early Release Act, N.J.S.A.
2C:43-7.2. The remaining charges were dismissed.
Defendant appealed. His appeal was heard on this court's
excessive sentencing calendar and affirmed. State v. Dwayne
Wilson, No. A-4177-10 (App. Div. Nov. 16, 2011).
3 A-0475-15T2
In September 2014, defendant filed a pro se PCR petition.
After the assignment of counsel, defendant made the following
arguments in support of his petition:
POINT I
THE SENTENCE IMPOSED BY THE TRIAL COURT WAS
IMPROPER, ILLEGAL AND/OR OTHERWISE
UNCONSTITUTIONAL.
POINT II
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF TRIAL COUNSEL IN VIOLATION OF THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS.
POINT III
DFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF APPELLATE COUNSEL.
POINT IV
AN EVIDENTIARY HEARING IS REQUIRED WITH REGARD
TO THE ALLEGATIONS OF DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF.
POINT V
THE DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF SHOULD NOT BE BARRED BY PROCEDURAL
CONSIDERATION[S].
Following argument on defendant's PCR petition, the court
issued a written decision rejecting each of defendant's arguments.
The judge entered an order denying defendant's petition. This
appeal followed.
On appeal, defendant makes the following argument:
4 A-0475-15T2
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL COUNSEL.
Defendant argues on appeal that the PCR court erred by
rejecting his contention that his trial counsel provided
ineffective assistance of counsel during defendant's sentencing
proceeding. More particularly, defendant asserts that his trial
counsel's performance was deficient because counsel failed to
refute the State's assertion that the court should find three of
the aggravating factors under N.J.S.A. 2C:44-1(a) that the court
relied upon in imposing sentence. Defendant also argues his counsel
failed to challenge at sentencing the State's reliance on an
uncharged offense against defendant. Last, defendant argues his
counsel was ineffective by failing to "correct the trial court
when it found no mitigating factors were applicable."
The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution guarantee
that a defendant in a criminal proceeding has the right to the
assistance of counsel in his or her defense. State v. Nash, 212
N.J. 518, 541 (2013). The right to counsel includes "the right to
the effective assistance of counsel." Ibid. (quoting Strickland
5 A-0475-15T2
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed.
2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), to determine whether a defendant has been deprived of the
effective assistance of counsel. Strickland, supra, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105
N.J. at 58. Under the first prong of the Strickland standard, a
petitioner must show that counsel's performance was deficient. It
must be demonstrated that counsel's handling of the matter "fell
below an objective standard of reasonableness" and that "counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693.
Under the second prong of the Strickland standard, a defendant
"must show that the deficient performance prejudiced the defense."
Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must
be a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at
698. A petitioner must demonstrate that "counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
6 A-0475-15T2
result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d
at 693. "The error committed must be so serious as to undermine
the court's confidence in the jury's verdict or result reached."
State v. Chew, 179 N.J. 186, 204 (2004).
"With respect to both prongs of the Strickland test, a
defendant asserting ineffective assistance of counsel on PCR bears
the burden of proving his or her right to relief by a preponderance
of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012), cert.
denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
A failure to satisfy either prong of the Strickland standard
requires the denial of a petition for PCR. Strickland, supra, 466
U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; Nash, supra,
212 N.J. at 542; Fritz, supra, 105 N.J. at 52.
We review the legal conclusions of a PCR court de novo. State
v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145,
125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard
of review applies to mixed questions of fact and law. Id. at 420.
Where an evidentiary hearing has not been held, it is within our
authority "to conduct a de novo review of both the factual findings
and legal conclusions of the PCR court." Id. at 421. We apply
that standard here.
A court engages in impermissible double-counting when it
considers "facts that establish the elements of the relevant
7 A-0475-15T2
offense" in its finding of aggravating factors at sentencing.
State v. Fuentes, 217 N.J. 57, 75 (2014). Defendant claims his
counsel's performance was deficient because she did not challenge
the State's request that the court find aggravating factor one,
N.J.S.A. 2C:44-1(a)(1), and thereby permitted the court to engage
in the impermissible double-counting of the deaths of the three
victims in its sentencing determination.
Defendant contends a court may only find aggravating factor
one without engaging in double-counting by demonstrating the
extreme brutality of the offense or that defendant's conduct
extended to the extreme reaches of the prohibited behavior. See
Fuentes, supra, 217 N.J. at 75. Defendant argues that since
neither of the circumstances that would permit a finding of
aggravating factor one without impermissible double-counting was
present here, defendant's counsel should have objected to the
State's request that the court find the aggravating factor.
Defendant similarly argues his counsel failed to object to
the State's request that the court find aggravating factor two,
N.J.S.A. 2C:44-1(a)(2). He asserts that because the injuries to
the victims were a necessary element of the crimes for which he
was convicted, the court could not find aggravating factor two
without engaging in impermissible double-counting.
8 A-0475-15T2
We reject defendant's claim that counsel's performance was
deficient by failing to object to the State's request that the
court find aggravating factors one and two because it is
contradicted by the record. In trial counsel's detailed sentencing
memorandum to the court, she made the precise argument defendant
now claims she failed to make. She argued the court could not
properly find aggravating factors one and two because to do so
would constitute impermissible double-counting.
Defendant also claims trial counsel's performance was
deficient because she did not address aggravating factor nine, the
need to deter the defendant and others from violating the law,
N.J.S.A. 2C:44-1(a)(9), at sentencing. More particularly, he
claims counsel should have challenged the State's request that the
court find aggravating factor nine by distinguishing between
general deterrence and specific deterrence, and arguing to the
sentencing court there was no basis for finding a need for specific
deterrence here.
Defendant's argument ignores that he was convicted of three
separate counts of aggravated manslaughter and a separate charge
of aggravated assault. He violently and brutally caused his
sister's death and the death of two of her children, and inflicted
life threatening injuries on his sister's surviving child. The
record supported a finding of both a general and specific need for
9 A-0475-15T2
deterrence under aggravating factor nine, and counsel's
performance was not deficient by failing to argue otherwise. A
counsel's performance is not deficient by failing to make a
meritless legal argument.1 See State v. Worlock, 117 N.J. 596, 625
(1990) ("The failure to raise unsuccessful legal arguments does
not constitute ineffective assistance of counsel.").
Defendant also argues counsel's performance was deficient
because she failed to correct the court when it found no mitigating
factors. Again, defendant ignores the record. In her sentencing
memorandum to the court, counsel argued the court should find
mitigating factors two, that defendant did not contemplate that
his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-
1(b)(2), four, that based on his mental illness there were grounds
1
We also observe that the court did not find aggravating factor
nine at the sentencing proceeding. Thus, even assuming counsel's
performance was deficient by failing to address aggravating factor
nine at sentencing, defendant cannot establish that but for his
counsel's error there is a reasonable probability the result of
his sentencing proceeding would have been different. Strickland,
supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We are aware the judgment of conviction states that the court
found aggravating factor nine, but that is not supported by the
sentencing record. See State v. Walker, 322 N.J. Super. 535, 556
(App. Div.) (finding that where there is a conflict between the
sentencing transcript and judgment of conviction, the sentencing
transcripts controls), certif. denied, 162 N.J. 487 (1999). In any
event, defendant's sentence was affirmed on direct appeal and the
accuracy of the judgment of conviction is not an issue before us.
Any request for an amendment of the judgment of conviction should
be first made to the trial court.
10 A-0475-15T2
tending to excuse his conduct, N.J.S.A. 2C:44-1(b)(4), and eight,
defendant's conduct was the result of circumstances unlikely to
recur, N.J.S.A. 2C:44-1(b)(8). The fact that the court rejected
defendant's arguments did not render counsel's performance
deficient.
Defendant last argues counsel's performance was deficient
because she failed to object to the assistant prosecutor's reliance
at sentencing on "no billed cases to the [g]rand [j]ury" as
evidence of defendant's assaultive behavior. The argument lacks
merit because even assuming counsel should have objected, there
is no evidence the court relied on any prior "no billed" cases in
its sentencing determination. Thus, defendant failed to
demonstrate that but for counsel's alleged error, there is a
reasonable probability the result of the sentencing proceeding
would have been different. See Strickland, supra, 466 U.S. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
To the extent we discern any additional arguments made on
defendant's behalf, they are without merit sufficient to warrant
discussion in a written opinion. Rule 2:11-3(e)(2).
Affirmed.
11 A-0475-15T2
STATE OF NEW JERSEY VS. DWAYNE WILSON (07-04-0720, HUDSON COUNTY AND STATEWIDE)
Combined Opinion