State of New Jersey v. Terence F. Nelson

• Court: New Jersey Superior Court Appellate Division
• Decided: December 4, 2025
• Docket: A-0535-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0535-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERENCE F. NELSON, a/k/a TERRANCE NELSON,

Defendant-Appellant. __________________________

Submitted November 18, 2025 – Decided December 4, 2025

Before Judges Gilson and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 21-07-1343 and 21-07-1344.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Terence F. Nelson appeals from two orders denying his petition

for post-conviction relief (PCR). The first order was entered on July 29, 2024,

and denied defendant's PCR petition because the PCR judge found there was no

prima facie showing of ineffective assistance of trial counsel. In the second

order entered on August 28, 2024, the PCR judge granted defendant's motion for

reconsideration on one ground—that trial counsel was ineffective in not filing a

direct appeal—and conducted an evidentiary hearing on this issue. Following

the evidentiary hearing, the PCR judge concluded that defendant failed to

establish his trial counsel was ineffective in not filing a direct appeal.

After considering the record in light of the parties' arguments and the

applicable law, we affirm both orders denying defendant's PCR petition

substantially for the reasons expressed in the comprehensive written and oral

opinions rendered by Judge Ronald D. Wigler.

I.

In May 2021, defendant shot an unarmed man multiple times at a basement

party in East Orange killing him. In separate indictments, defendant was

charged with weapons offenses and first-degree murder. Under Indictment

Number 2021-07-1343, defendant was charged with second-degree possession

of a weapon by certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1)

A-0535-24 2 (count one). Under Indictment Number 2021-07-1344, defendant was charged

with first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count two); and

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a)(1) (count three).

On February 22, 2023, defendant entered guilty pleas under both

indictments before Judge Wigler. Under Indictment Number 2021-07-1344,

defendant pled guilty to an amended charge of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1) under count one, and second-degree

unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b)(1),

under count two. Count one under Indictment Number 2021-07-1343 was

dismissed and count three under Indictment Number 2021-07-1344 was

dismissed. As part of the plea agreement, the State recommended that defendant

be sentenced to twenty-three years' imprisonment subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

Judge Wigler sentenced defendant in accordance with the plea agreement

under count one, Indictment Number 2021-07-1344, the amended first-degree

aggravated manslaughter charge, to twenty-three years' imprisonment subject to

NERA; eleven-and-a-half-years of parole ineligibility pursuant to the Graves

A-0535-24 3 Act, N.J.S.A. 2C:43-6(c); and five years of parole supervision. Under count

two, defendant was sentenced to ten years' imprisonment with five years of

parole ineligibility pursuant to the Graves Act and that sentence was to run

concurrently to the first-degree aggravated manslaughter sentence.

At the conclusion of the sentencing hearing, the judge informed defendant

of his right to appeal, that he had forty-five days to file a notice of appeal, and

an additional thirty days to file an appeal if good cause was shown. Defendant's

trial counsel signed and filed a "notice of appeal rights and time to file a petition

for PCR form," which was dated April 24, 2023. The signature line for

defendant was blank. Defendant did not file a direct appeal.

Ninety-one days after being sentenced, defendant filed a self-represented

PCR petition and was assigned PCR counsel. Judge Wigler heard oral argument

on the petition. The judge considered, but rejected defendant's eight arguments

that his trial counsel had been ineffective for failing to: (1) request full

discovery; (2) assist and go over his case with him; (3) preserve the attorney -

client relationship because of his attitude towards defendant; (4) put in monitors

defendant requested; (5) move to suppress witness identifications and file a

subsequent dismissal motion; (6) investigate the scene of the shooting; (7)

present any mitigating factors at sentencing; and (8) file a direct appeal.

A-0535-24 4 In a forty-four-page written opinion accompanying the July 29, 2024

order, the judge determined that defendant had not established a prima facie

showing of ineffective assistance of counsel, and therefore, the judge denied the

petition without an evidentiary hearing. The judge found the three eyewitness

identifications of defendant were confirmatory identifications, which did not

require a hearing under United States v. Wade, 388 U.S. 218 (1967). 1 The judge

also determined the identifications would not have been suppressed had trial

counsel filed a Wade motion because they were not show-up identifications, and

therefore, not impermissibly suggestive and not substantially likely to cause

misidentification. The judge reasoned there cannot be a claim for ineffective

assistance of counsel if trial counsel neglects to file a meritless motion.

The judge considered and rejected defendant's claim of ineffective

assistance of trial counsel based on defendant's allegation he failed to file a

1 "[A] trial court conducts a Wade hearing to determine the admissibility of the out-of-court identifications." State v. Micelli, 215 N.J. 284, 288 (2013). The hearing determines "if [an] identification procedure was impermissibly suggestive and, if so, whether the identification is reliable." Ibid. A Wade hearing is not required in every case involving an out-of-court identification. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). To be entitled to a hearing, the defendant must first present "some evidence of suggestiveness" that could result in a misidentification. State v. Henderson, 208 N.J. 208, 238, 288 (2011). Courts consider various "system variables," which include pre - identification instructions, witness feedback, and whether the witness viewed the defendant multiple times. Id. at 289-90. A-0535-24 5 direct appeal, despite defendant ostensibly asking him to do so. The judge noted

defendant did not file a sworn statement or certification in support of his

contention and there was "nothing under oath to indicate . . . that's what he

actually asked counsel to do."

On August 16, 2024, defendant filed a motion for reconsideration

accompanied by an amended verified PCR petition. The amended verified PCR

petition included pages omitted with the initial PCR petition, which included a

signed amended verified petition supporting defendant's PCR claim that he

asked trial counsel to file a direct appeal. On August 28, 2024, the judge granted

defendant's motion for reconsideration and conducted a second PCR hearing.

The judge limited the hearing to defendant's claim that his trial counsel failed to

file a direct appeal.

Defendant and his trial counsel testified at the hearing. Trial counsel was

questioned about the "notice of appeals rights and time to file a petition for

[PCR]" form. Trial counsel testified he went over the form with defendant at

the April 24, 2023 sentencing hearing and that defendant never requested him

to file a direct appeal.

Defendant testified his trial counsel told him he would file a direct appeal.

Defendant explained he was confined in an institution where he was unable to

A-0535-24 6 access the law library to properly request an appeal be filed. Defendant also

testified as to each of his nine prior convictions on direct and cross-examination.

After defendant testified, his PCR counsel requested that the judge grant

defendant's PCR petition and allow him to file a direct appeal of his conviction.

At the close of the evidence, the judge issued an oral decision denying

defendant's PCR petition. The judge found trial counsel was "credible," and

defendant was "not credible." The judge highlighted defendant had eight or nine

prior indictable convictions, many of which were for "voracity type crimes,"

such as receiving stolen property and burglary. The judge noted defendant

"waffled" when questioned by his PCR counsel, and ultimately acknowledged

on cross-examination, "that he had forty-five days to appeal." The judge

stressed defendant's testimony that he has been "locked up so many times," and

"gets high." The judge also noted defendant's testimony that the reason he did

not file appeals in his prior matters was because they dealt with lesser charges.

The judge determined trial counsel was "credible" when he testified that

defendant "never told him to file an appeal." This appeal followed.

II.

On appeal, defendant's PCR counsel raises the following arguments:

A-0535-24 7 POINT I

THE COURT FAILED TO VIEW THE FACTS IN THE LIGHT MOST FAVORABLE TO DEFENDANT. State v. Preciose, 129 N.J. 451 (1992)

POINT II

COUNSEL'S REPRESENTATION OF DEFENDANT CONSTITUTES INEFFECTIVE ASSISTANCE.

POINT III

THE COURT ERRED IN FINDING THE IDENTIFICATIONS AS CONFIRMATORY AND NOT SUBJECT TO THE ADMISSIBILITY REQUIREMENTS OF SHOW[-]UPS. State v. Pressley, 232 N.J. 587 (2018)

POINT IV

THE COURT ERRONEOUSLY RELIED UPON AN UNPUBLISHED SUPERIOR COURT CASE AS AUTHORITY. R. 1:36-3 (Not Raised Below)

To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-part Strickland test: (1) "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment[,]" and (2) "the deficient performance prejudiced the

defense." Strickland v. Washington, 466 U.S. 668, 687 (1984) (quoting U.S.

Const. amend. VI); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland

two-prong test in New Jersey).

A-0535-24 8 A petitioner is not automatically entitled to an evidentiary hearing. State

v. Porter, 216 N.J. 343, 355 (2013). Rule 3:22-10 provides that a defendant is

entitled to an evidentiary hearing on a PCR petition only if he or she establishes

a prima facie case in support of PCR, material issues of disputed fact cannot be

resolved by reference to the existing record, and an evidentiary hearing is

necessary to resolve the claims for relief. Porter, 216 N.J. at 354 (quoting R.

3:22-10(b)). The PCR court should grant an evidentiary hearing "if a defendant

has presented a prima facie claim in support of [PCR]." Preciose, 129 N.J. at

462.

Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its

review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013).

Where an evidentiary hearing has been held, we should not disturb "the PCR

court's findings that are supported by sufficient credible evidence in the record."

State v. Pierre, 223 N.J. 560, 576 (2015) (quoting Nash, 212 N.J. at 540). We

review any legal conclusions of the trial court de novo. Id. at 576-77; State v.

Harris, 181 N.J. 391, 419 (2004).

A-0535-24 9 A.

Defendant asserts the judge failed to view the facts in the light most

favorable to him, citing Preciose, 129 N.J. at 462-63. In particular, defendant

argues the judge used the "notice of appeals rights and time to file a petition for

[PCR]" form—which trial counsel filled out on the day of sentencing—against

defendant. He maintains his trial counsel signed the form, but defendant's

signature is missing. According to defendant, this establishes direct evidence

his trial counsel failed to discuss the possibility of a direct appeal with him and

supports defendant's testimony that trial counsel left right after the sentencing

hearing without mentioning anything to him about filing an appeal.

Defendant also contends the judge failed to weigh the evidence in the light

most favorable to him, when he failed to consider his self-represented PCR

petition filed only ninety-one days after his sentencing, demonstrating

defendant's intent to timely file a direct appeal. Defendant reasons his mistaken

filing for PCR instead of a direct appeal should be excused due to his

"inexperience and lack of knowledge of the forms."

The sufficient credible evidence adduced at the evidentiary hearing proves

defendant's trial counsel was not ineffective for failing to file a direct appeal.

Most importantly, defendant's trial counsel credibly testified that there was

A-0535-24 10 never a request by defendant to file a direct appeal. Once the evidentiary hearing

was conducted, the judge was required to make factual and legal findings based

on the objective, credible evidence presented and was not obligated to view the

facts in the light most favorable to defendant. We note the judge granted

defendant's motion for reconsideration and conducted an evidentiary hearing on

the direct appeal issue because he reviewed the facts in the light most favorable

to defendant.

B.

Next, defendant claims trial counsel coerced him into pleading guilty and

to accept the State's plea offer. Defendant maintains his trial counsel was

inadequate in handling the matter pre-trial and was ineffective by not filing a

motion to suppress the three eyewitness identifications made from two

photographs and a five second clip of the surveillance video. Defendant argues

he wanted trial counsel to prepare for trial, but instead trial counsel limited his

representation to plea bargaining. At the plea allocution, defendant contends

the questions asked to establish the factual basis of the plea called for "yes or

no answer[s]," such as whether he possessed a gun without having a permit, and

whether in total regard of human life, he used the gun to shoot the unarmed

A-0535-24 11 victim several times knowing it would kill him. We reject defendant's

arguments.

Judge Wigler was in a particularly good position to evaluate defendant's

arguments. The judge had taken defendant's plea and imposed the sentences.

The judge carefully considered defendant's PCR claims as stated and determined

trial counsel was not ineffective. Contrary to defendant's assertions, the judge

pointed out that during defendant's plea allocution, defendant "assured" the

judge he was satisfied with the services of his trial counsel. Moreover, the judge

specifically asked defendant if trial counsel reviewed all of the discovery with

him, and defendant responded in the affirmative.

Based upon our de novo review, the judge properly found the three

eyewitness identifications of defendant were confirmatory identifications, and

therefore, trial counsel's failure to file a motion to suppress did not constitute

ineffective assistance. Alternatively, defendant claimed the three identifications

were "show-up" identifications, were tainted by personal bias, and therefore

required a Wade hearing. Defendant contends the identifications were show-

ups due to the fact that two photographs from the crime scene and a five second

surveillance video clip were shown to the three eyewitnesses. Defendant also

alleges certain system and estimator variables espoused in State v. Henderson,

A-0535-24 12 208 N.J. 208, 218 (2011), rendered the identification procedure inherently

suggestive here, and the judge failed to consider them. We disagree.

The judge considered defendant's arguments and concluded the three

eyewitnesses were "previously known to or acquainted with" defendant.

Pressley, 232 N.J. at 593. For example, one of the eyewitnesses was defendant's

ex-fiancé, and the judge observed her identification did not present "a

substantial likelihood of irreparable misidentification."

Another eyewitness attended the basement party where the shooting

occurred with his friend "L"—defendant's street name—and showed "L's"

Facebook account to detectives. This eyewitness identified defendant from still

photographs taken from the surveillance video. The judge highlighted the

eyewitness previously encountered defendant and had known him for twenty

years. The third eyewitness was a "close associate" of defendant, and she

indicated he was her "boyfriend." This eyewitness claimed defendant told her

his name was "Xavier." Because defendant was at her residence when law

enforcement arrived, and she was in a relationship with him, the judge

determined this eyewitness's identification was confirmatory and not a show-up.

Therefore, the generalized assertion the three eyewitness identifications

would have been suppressed if a motion was filed was unavailing. The State's

A-0535-24 13 evidence against defendant was strong, including four 9-millimeter spent

casings near the victim's body, two cell phones on the ground near the victim's

feet, a ballistic fragment, three projectiles in the basement, a digital video

recorder, and surveillance video of the crime scene. Our de novo review of the

record leads us to the same conclusion.

We are also unpersuaded by defendant's argument that the judge

improperly relied on one of our unpublished opinions 2 in reaching his decision.

The record supports the judge's determination "there would be no likelihood of

success relative to any of these identifications, that they would have been in any

way suppressed." Therefore, trial counsel was not ineffective in failing to file a

motion to suppress, and no prejudice has been shown. The judge astutely

pointed out that if trial counsel were to file any meritless motions, the plea

2 Rule 1:36-3 provides:

No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel. A-0535-24 14 negotiations and agreement reached may not have been as favorable to

defendant.

C.

Defendant also argues that his trial counsel was ineffective at sentencing

by failing to argue for mitigating factor four (there were substantial g rounds

tending to excuse or justify the defendant's conduct, though failing to establish

a defense). See N.J.S.A. 2C:44-1(b)(4). Defendant contends his trial counsel

was ineffective at sentencing because he "remained silent" regarding both

aggravating and mitigating factors, only asked the judge to sentence defendant

in accordance with the plea agreement, and expressed condolences to the

victim's family members who were present.

Our de novo review of the record establishes the judge correctly rejected

defendant's claim that his trial counsel was ineffective in not arguing for

mitigating factor four. Defendant does not present any facts or reasons in his

merits brief to support his argument that mitigating factor four should have been

found. The judge carefully considered defendant's argument that: (1) he was

the victim of a shooting in 2018; (2) as a child, defendant was removed from his

mother's care; (3) defendant's mother died from breast cancer when he was four

A-0535-24 15 years old; and (4) defendant grew up in Newark in an area with moderate crime

and drug activity.

The judge had information pertaining to mitigating factor four at the time

of sentencing. Defendant's pre-sentence investigation report contained the

information relevant to mitigating factor four under the "family history" and

"physical appearance/additional comments" sections. The judge reasoned he

possessed and considered the information stated above and held mitigating

factor four was inapplicable because defendant's conduct of shooting the victim

four or five times could not be excused or justified. The judge also gave detailed

findings as to why the remaining thirteen mitigating factors would have been

unsuccessful.

Based upon our de novo review, we also conclude defendant failed to

demonstrate ineffective assistance of trial counsel or prejudice. Trial counsel

negotiated a very favorable plea agreement. Defendant was sentenced to

twenty-three years' imprisonment subject to NERA for the first-degree

aggravated manslaughter and weapons charges. Moreover, the sentences

imposed were the sentences that defendant had negotiated for in his plea

agreement.

Affirmed.

A-0535-24 16