NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3677-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TENNEYSON D. FAIRCLOUGH,
Defendant-Appellant. _______________________
Argued December 5, 2023 – Decided January 26, 2024
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-07- 0938.
Steven E. Braun, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Steven E. Braun, on the brief).
Leslie-Ann Marshall Justus, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Leslie-Ann Marshall Justus, of counsel and on the brief). PER CURIAM
Defendant Tenneyson Fairclough appeals from the June 29, 2022, Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
We glean these facts from the record. On July 10, 2017, defendant was
charged in a seven-count indictment with two counts of first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts one and two); two counts
of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts three and
four); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count five); second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4 (count six); and second-
degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count
seven). The charges stemmed from defendant firing a gun into a car occupied
by two of his acquaintances outside a bar in Aberdeen on December 22, 2016.
One of the victims sustained a gunshot wound and both victims identified
defendant as the shooter.
A-3677-21 2 After losing a Wade1 hearing challenging the out-of-court identifications,
on September 17, 2018, defendant entered a negotiated guilty plea to counts one
(attempted murder) and six (unlawful possession of a weapon). In exchange,
the State agreed to dismiss the remaining counts of the indictment and
recommend an aggregate sentence of twelve years imprisonment, subject to an
eighty-five percent period of parole ineligibility pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.2
Despite defendant indicating on the plea form that he was a United States
citizen, prior to sentencing, his attorney confirmed that he was not a United
States citizen. As a result, defendant moved to withdraw his guilty plea and
submitted a supporting certification by his attorney averring that defendant's
mother had been advised by an immigration attorney that "a plea of guilty will
almost definitely result in [defendant's] deportation." On March 29, 2019, the
plea judge granted defendant's motion to withdraw his guilty plea with the
State's consent.
1 United States v. Wade, 388 U.S. 218 (1967). 2 Defendant was also extended term eligible as a result of which he faced a maximum sentencing exposure of life imprisonment if convicted of attempted murder at trial. See N.J.S.A. 2C:43-6, -7. A-3677-21 3 Thereafter, on May 22, 2019, defendant entered a renegotiated guilty plea
to counts three (aggravated assault) and six (unlawful possession of a weapon).
In exchange, the State agreed to recommend an aggregate term of ten years'
imprisonment, subject to NERA, but defense counsel would request an
aggregate eight-year NERA term over the State's objection. During the plea
hearing, the judge thoroughly reviewed the nature of the charges and the terms
of the plea agreement with defendant, and ensured that defendant had a full
understanding of the consequences of his plea. Defendant confirmed that he had
consulted with an immigration attorney, that he was entering the guilty plea with
the "assum[ption]" that he would be deported, and that he was satisfied with his
attorney's representation.
Critically, during the plea colloquy, the following exchange occurred
between the judge and defendant:
[COURT]: Okay. I ask you all these questions, and it may feel like I'm asking you the same question over and over again . . . but I need you to understand that if I accept your plea today, I'm not going to give you your plea back just because you changed your mind later today. Okay? So now is the time to speak. Do you understand?
[DEFENDANT]: Yes.
[COURT]: Okay. And knowing all of that, you still wish to plead guilty?
A-3677-21 4 [DEFENDANT]: Yes.
In providing a factual basis for the plea, defendant responded to his
attorney's and the court's questions as follows:
[DEFENSE COUNSEL]: . . . on December 22, 2016 at about 9:53 in the evening, were you in Aberdeen, New Jersey?
[DEFENSE COUNSEL]: And were you in the area of the Masonic Lodge . . . .?
[DEFENSE COUNSEL]: And while you were there, at some point did you have a gun on your person?
[DEFENSE COUNSEL]: And you knew that the gun that you had was a gun, right?
[DEFENSE COUNSEL]: Did you have any kind of permit to carry a gun?
[DEFENDANT]: No.
[DEFENSE COUNSEL]: And so you knew that it was not lawful for you to have a gun on your person, is that correct?
A-3677-21 5 [DEFENSE COUNSEL]: And at some point on December 22, 2016, did you take that gun and shoot into the car where you knew that a man by the initials of J.G. was sitting?
[DEFENSE COUNSEL]: And when you shot in the car where J.G. was sitting, did you do that because you were trying to cause him serious bodily harm?
....
[COURT]: All right. And you knew who J.G. was?
[COURT]: Okay. And who was he? Can you tell me?
[DEFENDANT]: Somebody that was at the bar.
[COURT]: Okay. And . . . so you fired the gun and you shot him, yes?
[COURT]: And you knew that you actually hit him?
[COURT]: Okay. And you understand that you caused him serious bodily injury?
A-3677-21 6 [DEFENDANT]: Yes.
[COURT]: And you intended to do that at the time that you shot him?
After ensuring compliance with Rule 3:9-2, governing the entry of guilty pleas,
the judge accepted defendant's plea.
At the sentencing hearing conducted on July 10, 2019, defense counsel
argued for leniency, asserting that "probably the most serious repercussion to
[defendant] from this conviction is that he will be deported." Defense counsel
continued that an immigration attorney had said "it [was] almost 100 percent
certain that [defendant would] be deported." In acceding to defense counsel's
request for leniency, the judge weighed heavily "the fact that there [was] certain
deportation in this case." Accordingly, the judge sentenced defendant to eight
years' imprisonment, subject to NERA, on the aggravated assault charge, and a
concurrent five years' imprisonment, with forty-two months of parole
ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on the weapons
offense.
Defendant did not file a direct appeal. However, on August 20, 2021,
defendant filed a timely PCR petition, which was later supplemented by
assigned counsel. In his petition, defendant asserted, among other things, that
A-3677-21 7 his attorney was ineffective by failing to pursue a speedy trial motion and failing
to object to defendant's inadequate factual basis. Defendant also asserted that
defense counsel's "cumulative errors" amounted to ineffective assistance of
counsel (IAC). Additionally, defendant sought to withdraw his guilty plea for a
second time.
Following oral argument conducted on June 27, 2022, the PCR judge
entered an order on June 29, 2022, denying defendant's petition without a n
evidentiary hearing. In an accompanying written 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 claim
of IAC.
Specifically, the judge determined defendant failed to show that his
attorney'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, 49-58 (1987). According to the
judge, "[t]o the contrary, plea counsel did an extraordinary job in ultimately
negotiating a second plea agreement that permitted defendant to plead to a less
serious crime and resulted in a sentence that was four years lower than the one
A-3677-21 8 defendant initially agreed to." The judge also concluded that defendant was not
entitled to an evidentiary hearing.
In rejecting defendant's contention that his attorney was ineffective by
failing to pursue a speedy trial motion, the judge acknowledged that there was a
thirty-one-month delay between defendant's arrest on December 26, 2016, and
sentencing on July 10, 2019. However, after applying the factors identified in
Barker v. Wingo, 407 U.S. 514 (1972), to evaluate a speedy trial claim, 3 the
judge concluded "[d]efendant provide[d] no facts to support his argument that
had plea counsel filed a motion to dismiss on speedy trial grounds it would have
been successful." See State v. O'Neal, 190 N.J. 601, 619 (2007) ("It is not
ineffective assistance of counsel for defense counsel not to file a meritless
motion . . . .").
In support, the judge pointed out that defendant "was responsible for most
of th[e] delay first, by filing pre-trial motions which required a hearing, then
entering a guilty plea . . . falsely indicating he was a United States citizen, and
3 The four factors identified in Barker "to determine when a delay infringes upon a defendant's due process rights" are "the '[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (alteration in original) (quoting Barker, 407 U.S. at 530). Our Supreme Court adopted the Barker test in State v. Szima, 70 N.J. 196, 200-01 (1976). A-3677-21 9 then moving to withdraw the plea in order to seek advice from an immigration
attorney." See State v. Gallegan, 117 N.J. 345, 355 (1989) ("Any delay that
defendant caused or requested would not weigh in favor of finding a speedy trial
violation." (citing United States v. Loud Hawk, 474 U.S. 302, 316 (1986))).
Further, the judge noted "there [was] no indication in the record that defendant
ever asserted a desire for a trial." Additionally, the judge stressed that defendant
"actually benefitted from the delay" because defendant was ultimately
"sentenced to eight years, four years less than the original offer defendant
accepted."
Turning to defendant's claim that his attorney was ineffective by failing
to object to an inadequate factual basis, the judge determined the claim lacked
merit on procedural and substantive grounds. Procedurally, the judge explained
the claim was "barred as it could have been raised on direct appeal." See State
v. Peoples, 446 N.J. Super. 245, 254-55 (App. Div. 2016) ("'[A] petitioner may
be barred from relief if the petitioner could have raised the issue on direct appeal
but failed to do so, Rule 3:22-4 . . . .'" (alteration in original) (quoting State v.
Echols, 199 N.J. 344, 357 (2009))).
A-3677-21 10 Substantively, the judge rejected defendant's claim that his factual basis
was inadequate "because he answered questions from his counsel and the court
with 'yes' and 'no' responses," reasoning:
[T]he use of leading questions is permitted when a factual basis for a plea is elicited. State v. Smullen, 118 N.J. 408 (1990). It is inconsequential that defendant did not provide an adequate factual basis in narrative form. His answers to questions from his counsel and the court were sufficient to establish that he committed the charged offense[s].
In this ensuing appeal, defendant raises the following points for our
consideration:
POINT I – THE PLEA BARGAIN IS INVALID BECAUSE IT INCLUDED A PLEA OF GUILTY TO N.J.S.A. 2C:39-5[(B)] WHICH IS UNCONSTITUTIONALLY OVERBROAD[.] (NOT RAISED BELOW).
POINT II – ASSUMING ARGUENDO THAT N.J.S.A. 2C:39-5[(B)] IS NOT UNCONSTITUTIONAL ON ITS FACE, DEFENDANT'S PLEA OF GUILTY NONETHELESS MUST FAIL BECAUSE THE FACTUAL BASIS OMITTED ANY QUESTIONS AS TO WHETHER DEFENDANT HAD CARRIED THE HANDGUN IN QUESTION FOR PURPOSES NOT RELATED TO SELF-DEFENSE[.] (NOT RAISED BELOW).
POINT III – N.J.S.A. 2C:39-5[(B)] IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO DEFENDANT[.] (NOT RAISED BELOW).
A-3677-21 11 POINT IV – DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING HER FAILURE TO REQUEST A SPEEDY TRIAL.
POINT V – AS RAISED BY DEFENSE COUNSEL PRIOR TO THE PCR HEARING, THE FACTUAL BASIS WAS INADEQUATE.
POINT VI – CUMULATIVE ERRORS BY COUNSEL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (ARGUED BY PCR DEFENSE COUNSEL BUT NOT RULED ON BY THE COURT).
POINT VII – DEFENDANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS GUILTY PLEA.
II.
In Points I, II, and III, defendant argues for the first time on appeal that
"his plea bargain is invalid" because N.J.S.A. 2C:39-5(b) is "facially
unconstitutional," and is "unconstitutionally vague as applied to [him] because
it required [him] to obtain a carrying permit notwithstanding his right to carry a
gun for self-defense."4 In support, defendant relies on N.Y. State Rifle & Pistol
Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022), arguing that inasmuch as
4 N.J.S.A. 2C:39-5(b) provides that "[a]ny person who knowingly has in his possession any handgun . . . without first having obtained a permit to carry the same as provided in [N.J.S.A.] 2C:58-4, is guilty of a crime of the second degree." A-3677-21 12 "the United States Supreme Court has in effect held N.J.S.A. 2C:39-5[(b)] to be
unconstitutional because it requires citizens to obtain a carrying permit, a
requirement not justified by the Second and Fourteenth Amendments,
defendant's plea bargain cannot stand." Defendant continues that assuming
N.J.S.A. 2C:39-5(b) is constitutional, his "factual basis nonetheless should have
included, at a minimum, [self-defense related] questions." 5
We decline to consider defendant's constitutional challenge because it was
not presented to the PCR judge. "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). As our Supreme Court explained:
Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves. . . . In short, the points of divergence developed in
5 The State counters that although Bruen "struck down" the "'justifiable need'" to carry a handgun requirement contained in N.J.S.A. 2C:58-4(d), "it did not disturb any other parts of the states' handgun-permitting laws." Thus, according to the State, notwithstanding Bruen's holding, disqualifying criteria for certain applicants seeking to obtain a handgun carry permit remain in effect and defendant was otherwise disqualified from obtaining a permit due to his lengthy prior criminal history. Further, the State continues, Bruen did not invalidate "the requirement[] . . . that individuals must first obtain a permit before carrying firearms in public," a requirement defendant failed to satisfy. (Emphasis added). After Bruen was decided, the Legislature amended N.J.S.A. 2C:58-4 in December 2022, see L. 2022, c. 131, § 3, but has not amended or supplemented N.J.S.A. 2C:39-5(b). A-3677-21 13 proceedings before a trial court define the metes and bounds of appellate review.
The reason for that limitation undergirds the very structure of our legal traditions. As eloquently explained by an experienced and revered appellate judge:
. . . . [O]ur appellate courts step into the shoes of the trial judge and view the facts and issues as they were presented to him[ or her].
But there is more than history and tradition supporting our adherence to the record made below. There is an instinct of fairness due both the trial judge . . . and a litigant's adversary, a sense that one's opponent should have a chance to defend, explain, or rebut some challenged ruling and that the trial judge should have a clear first chance to address the issue. Indeed, if appellate courts were to consider some unpreserved issues but not others, depending on gradations of sympathy, the result would be an extremely uneven playing field.
There is also the canny recognition that if late-blooming issues were allowed to be raised for the first time on appeal, this would be an incentive for game-playing by counsel, for acquiescing through silence when risky rulings are made, and, when they can no longer be corrected at the trial level, unveiling them as new weapons on appeal. Finally, there is an element of institutional self-preservation in closing
A-3677-21 14 the door to what could be a flood of open- ended appellate opportunities.
[State v. Robinson, 200 N.J. 1, 19 (2009) (quoting Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging 84–85 (W.W. Norton & Co. 1994)).]
Following oral argument, the PCR judge issued his written decision on
June 29, 2022. Bruen was decided on June 23, 2022. Therefore, defendant had
an opportunity to present his constitutional challenge to the PCR judge prior to
the issuance of the judge's decision. See Robinson, 200 N.J. at 20 ("'[O]ur
appellate courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
available unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'" (quoting Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973))).
In Points IV, V, and VI, defendant challenges the judge's rejection of his
contentions that his attorney was ineffective by failing to pursue a speedy trial
motion and object to a purportedly inadequate factual basis. Defendant also
challenges the judge's denial of his petition without an evidentiary hearing.
"[W]e review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing." State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding
A-3677-21 15 an evidentiary hearing will not aid the court's analysis of whether the d efendant
is entitled to [PCR], . . . then an evidentiary hearing need not be granted." State
v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted).
An evidentiary hearing is only required when a defendant establishes "a
prima facie case in support of [PCR]," the court determines that there are
"material issues of disputed fact that cannot be resolved by reference to the
existing record," and the court determines that "an evidentiary hearing is
necessary to resolve the claims" asserted. State v. Porter, 216 N.J. 343, 354
(2013) (alteration in original) (quoting R. 3:22-10(b)). "[W]here . . . no
evidentiary hearing was conducted," as here, "we may review the factual
inferences the [trial] court has drawn from the documentary record de novo,"
and "[w]e also review de novo the court's conclusions of law." State v. Blake,
444 N.J. Super. 285, 294 (App. Div. 2016).
"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). To establish a prima facie IAC claim, a defendant must demonstrate "by
a preponderance of the credible evidence," State v. Echols, 199 N.J. 344, 357
(2009), that his or her attorneys' performance fell below the objective standard
A-3677-21 16 of reasonableness set forth in Strickland, 466 U.S. at 687, and adopted in Fritz,
105 N.J. at 49-58, and that the outcome would have been different without the
purported deficient performance. Stated differently, a defendant must show
that: (1) counsel's performance was deficient; and (2) the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58.
To establish the prejudice prong to set aside a guilty plea based on IAC, a
defendant must show "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. DiFrisco, 137 N.J. 434, 457 (1994) (alteration
in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To that end, "'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.
Failure to meet either prong of the two-pronged Strickland/Fritz test
results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280
(2012) (citing Echols, 199 N.J. at 358). That said, "courts are permitted leeway
to choose to examine first whether a defendant has been prejudiced, and if not,
A-3677-21 17 to dismiss the claim without determining whether counsel's performance was
constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citation
omitted) (citing Strickland, 466 U.S. at 697).
Applying these principles, we discern no abuse of discretion in the PCR
judge's denial of defendant's PCR petition without an evidentiary hearing, and
we affirm the denial substantially for the reasons stated in the judge's cogent
written opinion. Because there were no errors committed by defense counsel,
defendant's cumulative error claim must fail as well.
Finally, in Point VII, defendant argues that he should be allowed to
withdraw his guilty plea for a second time primarily "because he will be
deported to Jamaica as a result of his plea." Defendant claims "that he was never
advised that he faced mandatory deportation if he were to plead guilty" and
asserts that "permitting the withdrawal . . . will remedy the matter."
Although a motion to withdraw a guilty plea and a petition for PCR based
on IAC may be filed together, "[t]hey must be considered separately." State v.
O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014) (citing State v.
McDonald, 211 N.J. 4, 15-26, 29-30 (2012)). That is because a motion to
withdraw a guilty plea is governed by Rule 3:21-1 while a petition for PCR is
governed by Rule 3:22-1 to -13. "[P]ost-sentence [withdrawal] motions are
A-3677-21 18 subject to the 'manifest injustice' standard in Rule 3:21-1," which places "'a more
stringent standard'" on the movant to obtain relief. O'Donnell, 435 N.J. Super.
at 370 (quoting State v. Norman, 405 N.J. Super. 149, 160 (App. Div. 2009)).
Under that standard, "'the burden rests on defendant, in the first instance, to
present some plausible basis for his request, and his good faith in asserting a
defense on the merits.'" Smullen, 118 N.J. at 416 (quoting State v. Huntley, 129
N.J. Super. 13, 17 (App. Div. 1974)).
A motion to withdraw a guilty plea is governed by the four-factor test
established in State v. Slater, 198 N.J. 145 (2009). In evaluating the motion, a
court must consider and balance: "(1) whether the defendant has asserted a
colorable claim of innocence; (2) the nature and strength of defendant's reasons
for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair advantage to the accused."
Id. at 157-58. "No factor is mandatory; if one is missing, that does not
automatically disqualify or dictate relief." Id. at 162. However, "the longer a
defendant delays in seeking to withdraw a plea, the greater burden he or she will
bear in establishing 'manifest injustice,' because the prejudice to the State under
prong four will generally increase. Moreover, a defendant's reasons for delay
A-3677-21 19 may also weigh against relief under factor two." O'Donnell, 435 N.J. Super. at
370.
Here, as defendant points out, the PCR judge failed to address the
withdrawal motion. Ordinarily, we would remand the matter to the trial court
to remedy the omission. However, under the unique circumstances of this case,
we reject defendant's request to withdraw his guilty plea for various reasons.
First, the claim is procedurally barred by Rule 3:22-4 because defendant could
have raised the issue on direct appeal. In the alternative, we also reject the claim
on the merits. Without substantiation, defendant invokes his innocence to
support the first Slater factor and asserts that the case "would not involve much
preparation on the part of the State" to support the fourth Slater factor. However,
the crux of defendant's claim is the second Slater factor, his reason for
withdrawal, which is to avoid deportation.
Defendant was previously allowed to withdraw his guilty plea because he
had misrepresented his citizenship status on the plea form. After obtaining
advice from an immigration attorney and assuring the plea judge that he was
knowingly, voluntarily, and intelligently pleading guilty under the assumption
that he would be deported, he now seeks to withdraw his plea a second time for
A-3677-21 20 the very same reason—to avoid deportation. We cannot abide such
gamesmanship.
"Generally, representations made by a defendant at plea hearings
concerning the voluntariness of the decision to plead, as well as any findings
made by the trial court when accepting the plea, constitute a 'formidable barrier'
which defendant must overcome before he will be allowed to withdraw his plea."
State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431
U.S. 63, 74 (1977)). "That is so because '[s]olemn declarations in open court
carry a strong presumption of verity.'" Ibid. (alteration in original) (quoting
Blackledge, 431 U.S. at 74). Defendant has failed to vault this formidable
barrier.
Affirmed.
A-3677-21 21