NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1932-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILBERT DEMONSTHENE, a/k/a WILBERT DEMOSTHENES,
Defendant-Appellant. _____________________________
Submitted December 3, 2025 – Decided March 6, 2026
Before Judges Paganelli and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 17-06-1320.
Bahuriak Law Group, attorneys for appellant (Justin T. Loughry, of counsel; David S. Bahuriak, on the briefs).
William E. Reynolds, Atlantic County Prosecutor, attorney for respondent (Matthew T. Mills, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Wilbert Demonsthene a/k/a Wilbert Demosthenes appeals from
a January 21, 2025 order denying his petition for post-conviction relief (PCR)
without an evidentiary hearing. Based on our careful review of the record and
application of well-established law, we conclude defendant failed to establish
prima facie claims regarding the State's purported failure to provide discovery
or defense counsel's alleged ineffective assistance and affirm.
We glean the facts and procedural history from the record. In August
2016, defendant was a passenger in a vehicle traveling on the Atlantic City
Expressway. He was in the vehicle with Anthony L. Hicks and Devan Leggette
(co-defendants). Defendant "participated in shooting at another vehicle by
discharging a weapon that was pointed at the other vehicle." Defendant was
arrested in September 2016 for the incident.
In June 2017, an Atlantic County grand jury returned a seventeen-count
indictment against defendant and his two co-defendants. The indictment
charged: first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-
3(a)(1) (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-
2(a) and 2C:11-3(a)(1)(2) (count two); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(l) (count three); second-degree conspiracy to commit
murder, N.J.S.A. 2C:5-2(a) and 2C:12-1(b)(1) (count four); third-degree
A-1932-24 2 aggravated assault, N.J.S.A. 2C:12-l(b)(2) (count five); third-degree conspiracy
to commit murder, N.J.S.A. 2C:5-2(a) and 2C:12-l(b)(2) (count six); fourth-
degree aggravated assault, N.J.S.A. 2C:12-l(b)(4) (count seven); second-degree
possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a)(l) (count
eight); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(l)
(count nine); four counts of first-degree gang criminality, N.J.S.A. 2C:33-29(a)
(counts ten, eleven, fourteen and fifteen); second-degree gang criminality,
N.J.S.A. 2C:33-29(a) (count twelve); third-degree gang criminality, N.J.S.A.
2C:33-29(a) (count thirteen); and second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(l) (count seventeen). Each count of the
indictment named all three, except count sixteen applied only to Hicks and count
seventeen applied only to defendant.
On July 2, 2019, defendant entered a guilty plea. During the plea hearing,
defendant's counsel explained the negotiated plea called for defendant to plead
guilty to count one of the indictment, attempted murder, and for the State to seek
a sentence of eighteen years, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Counsel stated the "plea was contingent on the co-
defendants . . . accepting and entering pleas of guilt[y] as well." Counsel
represented she had reviewed the plea form with defendant.
A-1932-24 3 The transcript of the plea reveals the following colloquy:
THE COURT: Are you satisfied with your counsel and the plea arrangement described to the [c]ourt?
THE DEFENDANT: Negative.
....
THE COURT: Are you pleading guilty because you believe you are guilty?
THE DEFENDANT: No.
THE COURT: You don't believe you're guilty?
THE DEFENDANT: I don't. I'm pleading guilty because I don't have a shot at trial from what my mom says.[1]
THE COURT: All right. Well, let me . . . explain to you, sir, what happens here in New Jersey. We don't have a plea situation where you can enter a plea for any other reason, primarily, that you believe that you're guilty of the offense. You can also plead for other considerations, limiting your exposure, saving the people the trouble of a trial, making sure you know what the outcome is. Those are all acceptable, but the first is that you have to admit factually those things which make you guilty of an attempted murder.
Now, with that explanation in mind, sir, are you pleading guilty because you believe you are guilty?
1 Defendant contends he stated "from what my attorney says." The PCR court noted it was "difficult to make out exactly what . . . [defendant] stated when [it] listen[ed] on Courtsmart." A-1932-24 4 THE DEFENDANT: Then yes.
THE COURT: Are you pleading guilty voluntarily?
THE DEFENDANT: Yes.
THE COURT: Has anyone forced or threatened you to plead guilty or to enter into this agreement?
THE COURT: Sir, we talked about this plea form just a moment ago when we went over sentencing. I see you have a copy there in front of you. Did you review that document, together with the indictments, and the evidence in this case with your lawyer?
THE COURT: Do you have any questions for me or for [counsel] about any of those papers?
THE COURT: Did you read and understand the plea forms before you signed them?
THE COURT: Are these your initials and signatures I see?
THE COURT: Did you answer all the questions truthfully?
A-1932-24 5 THE DEFENDANT: Yes.
THE COURT: Have you pled guilty in court before?
THE COURT: So, you understand the process we're going through?
THE COURT: All right. We're going to talk about the offense now, sir, and then I'll turn you over to [your counsel] if there's any additional questions that may be necessary. Now, it's alleged in [count one] that on August 29th, 2016[,] that you were in Egg Harbor Township; is that true?
THE COURT: Where in the township were you when you committed this offense?
THE DEFENDANT: The [E]xpressway.
THE COURT: You were on the Atlantic City Expressway?
THE DEFENDANT: Yeah.
THE COURT: Were you driving a vehicle or were you a passenger in the vehicle?
THE DEFENDANT: The passenger.
A-1932-24 6 THE COURT: And did you there and then attempt to cause the death of Yahshaun Stukes-Williams, Lenardo Caro and Shaun Stukes and/or a juvenile with the initials M.T.?
THE DEFENDANT: Can you repeat that?
THE COURT: Yes. The allegation is . . . that while you were in that car as a passenger --
THE DEFENDANT: Right.
THE COURT: -- you did something to attempt to cause the death of Stukes-Williams, Lenardo Caro, Shaun Stukes and/or a juvenile with the initials M.T.?
THE DEFENDANT: Yes, I was there.
THE COURT: All right. And by being there what steps did you take to carry out the attempt to cause the death of one or more of those persons?
THE DEFENDANT: Being there.
THE COURT: Okay. Well, being there is part of it.
THE DEFENDANT: Um-hum.
THE COURT: Also you have to aid and abet that attempted murder, and that means to assist or to solicit or to encourage others who are carrying it out. So, were you in possession of a weapon at the time?
THE COURT: Was somebody else in the vehicle in possession of a weapon at the time?
A-1932-24 7 THE DEFENDANT: I don't know. I . . . only can say what I was there for. I was in the car, [y]our [h]onor, and, you know, a lot of things just started happening, whatever, too much -- like I was just covering myself. At the end of the day I got hit. I was a victim of myself and I was just there. So, that right there -- me knowing -- being there could give me 18 years. I got to plead guilty instead of getting a life sentence.
THE COURT: All right. Well, I'm going to give you a moment to consult with your counsel, and understanding what the terms I've just described to you, you appear to have understood, in order to be guilty of an attempt to cause the death of another you have to act with the purpose to have that death carried out. Now, I understand nobody died of those persons that were just mentioned, but you have to act with a purpose to have either yourself or others you're working with carry that out. So, speak with [counsel] and then let me know what facts you believe make you guilty of this offense.
THE DEFENDANT: Okay.
(Defendant confers with his attorney)
[COUNSEL]: Thank you, [y]our [h]onor.
THE COURT: All right. So, you've had a few moments to review the facts with [counsel]?
THE COURT: All right. Now, what do you believe that you were doing, in concert with others, that makes you guilty of this offense?
THE DEFENDANT: I participated in shooting at the car.
A-1932-24 8 THE COURT: You participated --
THE DEFENDANT: In shooting at the vehicle.
THE COURT: In shooting at the vehicle.
THE COURT: All right. And, so, you were discharging the weapon then?
THE COURT: All right. And that was pointed at the vehicle that the other people were in; is that correct?
THE COURT: And under the circumstances you believe and agree and admit that your actions were with the purpose to carry out the deaths of those people that I've just listed for you; is that true?
THE COURT: Very well. I find . . . defendant has had the advice of competent counsel to be satisfied he's entered his plea freely and voluntarily. He's knowingly, intelligently, and freely waived his right against self- incrimination to a trial of the evidence by a jury of his peers and to be confronted by the witnesses against him. He's not under any infirmity or intoxication. He's not been threatened or coerced to enter a plea, not promised anything outside that document, which I incorporate. He understands the range of [the] sentence to be
A-1932-24 9 imposed. As a result[,] his plea has an adequate and a provident factual basis. I accept it and find him guilty.
On August 15, 2019, defendant was sentenced to seventeen years, subject
to NERA. We affirmed the sentence on a sentencing oral argument calendar.
See State v. Demonsthene, No. A-1457-19 (App. Div. Mar. 23, 2021).
In June 2024, defendant filed the petition for PCR. In support of the
petition, defendant certified that "[f]rom the moment" he met counsel, he "told
her he wanted to fight the charges because he did not possess any weapon, he
did not shoot anyone, and he did not take part in any plan or conspiracy."
Further, he "asked [counsel] to interview specific witnesses, Kenneth Burrell,
Ralph Rodriguez[,] and Steven Martinez, and get statements on his behalf
because [he] wanted to go to trial." However, counsel "never sent an
investigator to speak with any of [his] witnesses."
In addition, defendant certified that he asked counsel "to file a motion for
a severance from his co-defendant[s'] cases, but she failed to do so because she
said the judge would not allow it."
In support of the petition, defendant provided a document that he asserted
was a transcript of an exchange between Detective Glenn Garrels and Idalis
Euceda, Leggette's girlfriend. According to the document, the detective advised
Euceda that he was "looking into an incident that happened last year on the
A-1932-24 10 Atlantic City Expressway." He stated the occupants of the car in which the
victim was the passenger were "trying to put the whole case" on defendant and
his co-defendants. However, he thought that was "bulls[**]t," and he knew their
claim of "self-defense" was "wrong." The detective advised he had their "text
messages going back and forth where they [we]re admitting to getting guns and
stuff like that." The detective advised he wanted to verify Leggette's phone
number to get "his records and prove" defendant and the co-defendants "weren't
trying to set things up."
In further support of defendant's PCR petition, he hired a private
investigator "to track down and interview witnesses, and if possible, obtain
written statements." Defendant proffered an undated report from the private
investigator detailing her meeting with Rodriguez. According to the report, the
investigator met with Rodriguez on April 23, 2022. Rodriguez advised that he
had met with a New Jersey State Trooper in the summer of 2018. The trooper
advised Rodriguez that he had been "identified through DNA on a Gatorade
bottle found in the white SUV at the crime scene." (Capitalization modified).
Rodriguez suggested "that someone must have been recycling bottles because
. . . although he knew the occupants in the white SUV . . . [he] had not been in
the white SUV" and learned about the shooting on Facebook. (Capitalization
A-1932-24 11 modified). Rodriguez was familiar with a black pick-up truck, having seen it
"around town" and knew defendant "by face to say hello." The trooper advised
that he would "run Rodriguez['s] cell number to the pin of the local cell tower
in the area of the . . . crime scene." "Rodriguez never heard from the . . .
[t]rooper again." Rodriguez's and the investigator's signatures were witnessed
on the investigator's report by the investigator.
Also, defendant submitted a November 2, 2022 report from the private
investigator's meeting with Burrell. According to the report, in 2016, Burrell
"was questioned regarding his fingerprints located in a van involved in a drive
by shooting which resulted in the Atlantic City Expressway homicide." While
he was "being questioned . . . a Hispanic male was also brought in[] . . . and
. . . questioned about the same Atlantic City Expressway homicide." Burrell
advised the unidentified police detective "the van in question was used by . . .
community residents for erran[d]s," it was "a community van" and when
someone needed it, they paid the owner for "usage."
Burrell explained that the unidentified detective kept referring to him as
defendant. Burrell advised the detective "that although both he . . . and
[defendant] . . . had dread locks, . . . he . . . was not" defendant. Burrell denied
knowing anything about the Atlantic City Expressway shooting.
A-1932-24 12 Further, Burrell claimed "he was given a written statement from the
unidentified police detective, that he . . . was cleared of any involvement in the
Atlantic City Expressway homicide." Burrell also claimed the statement was
placed in defendant's and the co-defendants' discovery file; however, the
investigator found no mention of Burrell's name or the statement in defendant's
discovery file.
Moreover, Burrell advised the investigator that when he and defendant
were incarcerated, Burrell had told defendant about the detective's questioning.
Further, he stated he was willing to give a statement to defendant's counsel,
before defendant was sentenced, but no one "ever c[a]me to interview him."
Indeed, Burrell indicated "that until this interview [with the investigator] . . . no
one from [defendant's] legal team [had] ever c[o]me to" interview him.
Burrell signed the report stating: "I . . . certify that the above statement is
true and accurate to the best of my knowledge." In addition, on November 17,
2022, Burrell signed an affidavit affirming the information in the investigator's
report and stated: "I swear/affirm the foregoing statements are true and correct
to the best of my knowledge, information[,] and beliefs. I know a willfully false
statement will subject me to punishment." Burrell's was the only signature on
the affidavit.
A-1932-24 13 Further, defendant submitted a March 8, 2023 report from the investigator
detailing a March 8 meeting with Martinez. According to the report, Martinez
stated that when he and defendant were incarcerated together, he had "related
important information which could possibly exonerate" defendant. Martinez
"agreed to give [defendant's counsel] . . . a signed statement regarding
[defendant's] police investigation regarding the 2016 Atlantic City Expressway
homicide." While the two were incarcerated, defendant "on numerous occasions
. . . asked . . . Martinez if his [counsel] or anyone from her staff had come to
interview [him] regarding [his] statement on behalf of" defendant. On each
occasion, "Martinez responded 'NO[.]'" Martinez signed the report: "I . . . swear
that the above statement is true and accurate to the best of my knowledge."
In addition, Martinez signed two affidavits. In one affidavit, Martinez
stated, he was "visited in August 2016 by a [d]etective from the New Jersey
State Police, who was conducting a shooting investigation." Martinez described
that the detective was accompanied by a parole agent. The parole agent searched
Martinez's residence while he was questioned by the detective. The detective
was aware that Martinez "had been recuperating from multiple gunshot wounds
in [his] legs." "The [d]etective accused [Martinez] of being involved in the
Expressway shooting, as retaliation to what happened to" him and stated "that
A-1932-24 14 the pickup truck involved in the Expressway shooting was seen parked in front
of [his] residence the day before the shooting." Martinez advised the detective
that he "had been on [b]racelet [m]onitoring a week or so [as] of the Expressway
shooting, and . . . the pickup truck was a 'street rental.'" Martinez advised the
detective that he knew defendant from Facebook. The detective "threatened
[Martinez] that if [his] telephone number came up in [defendant]'s phone, he
would be back to speak to" him, however, "[t]he [d]etective never returned."
Martinez signed the affidavit: "I swear/affirm the foregoing statements are true
and correct to the best of my knowledge, information[,] and beliefs. I know a
willfully false statement will subject me to punishment." Martinez's was the
only signature on the affidavit.
In another affidavit, Martinez stated that in 2016, he and defendant were
incarcerated together and Martinez "relayed important information that [he]
believed would help [defendant] be exonerated." Martinez stated he was willing
to give a statement to defendant's counsel. Moreover, "[o]n numerous
occasions, [defendant] asked [him] if [counsel] or anyone from his legal team
had come to interview [him], which [he] answered NO." The affidavit was
signed by both Martinez and the investigator.
A-1932-24 15 Lastly, defendant proffered a 2021 New Jersey State Police Annual Major
Discharge Reporting Form that stated, in part, Lieutenant 2 Garrels had been
suspended for thirty days because he
admitted to acting in an official capacity to the discredit of the Division while on-duty. [Garrels] improperly utilized the New Jersey Criminal Justice Information System and violated the State of New Jersey Anti- Discrimination Policy by creating a newsletter which contained inappropriate language concerning other members of the Division.
Defendant alleged the State failed to: "turn over all text messages and
phone records"; "turn over witness and/or suspect statements"; and "disclose
Detective . . . Garrels['s] disciplinary history and/or ongoing investigations into
Detective . . . Garrels['s] egregious discriminatory behavior while on-duty."
Further, he contended he was denied his constitutional right to effective
assistance of counsel because his counsel: failed "to seek a severance from co-
defendants"; failed "to conduct any investigation or prepare and provide any
defense"; coerced "defendant into accepting the plea agreement"; and had
divided "loyalties . . . causing conflicting interests." Defendant asserted that he
had no confidence in his counsel and had pleaded guilty out of "fear of being
2 Garrels is referenced as both a lieutenant and a detective in the record. A-1932-24 16 sentenced to life imprisonment" and was "pressured" by counsel to accept "the
plea agreement because the plea agreement was all-or-none."
Defendant did not state that he would have refused to plead guilty based
on the investigation reports and statements of Rodriguez, Burrell, and Martinez.
He also did not claim that Detective Garrels's interview of Euceda or Detective
Garrels's disciplinary history would have changed his decision to plead guilty.
The PCR court heard the parties' arguments on December 11, 2024. On
January 21, 2025, the court issued a twenty-three-page written decision
accompanying its order denying defendant's petition.
In considering the argument that defense counsel had been ineffective by
refusing to interview any witnesses, the court found "defendant d[id] not provide
an explanation to [it] as to how these witnesses or their statements would have
been beneficial to [him] around the time he took his plea." Instead, the court
found "statements made by alleged witnesses . . . [we]re more closely related to
bald assertions than sworn affidavits or certifications."
Nevertheless, the court found "counsel [was] arguably deficient i[n] the
failure to interview these witnesses prior to [defendant] pleading guilty."
Moreover, the court observed that "[i]t c[ould] not be said whether more,
potentially exculpatory information, would have been offered by these witnesses
A-1932-24 17 when their memories were more easily recalled." However, the court found
defendant had "not produced any evidence of same."
As to his plea, the PCR court noted defendant "said he was not satisfied
with his counsel and the plea arrangement." The court "listened to the audio" of
the plea, and noted defendant's mother, not trial counsel, "told him he didn't have
a shot a trial." Nevertheless, the court found "whether his attorney or his mom
told him . . . [wa]s not dispositive." Instead, "defendant gave a factual basis and
his plea was accepted by the [c]ourt." The court noted defendant "stated that he
was pleading guilty voluntarily and that no one forced or threatened him to plead
guilty or enter into the agreement."
The PCR court found "[f]rom what [defendant] stated during the plea,
there [we]re no facts to suggest that counsel was ineffective or coerced [him]
into entering the plea." Instead, defendant: "ultimately took his exposure into
consideration and made a voluntary admission of guilt"; "acknowledged that he
was pleading guilty because he believed he was guilty"; "plead[ed] guilty
voluntarily and without force or threat to do so"; was advised of "his exposure
and recommended sentence before he pled"; and understood the terms of the
plea.
A-1932-24 18 The PCR court considered defendant's arguments "that the State withheld
evidence and statements of suspects and/or witnesses whose DNA was found
inside the black Dodge pick-up truck." In addition, the court considered
defendant's assertions "that text messages and phone records were withheld,
potential material concerning [a detective] could have been withheld and [an]
actual police statement . . . that may have contained exculpatory information
was withheld."
The PCR court found "there [wa]s nothing to suggest that there were text
messages or phone recordings" aside from an interview conducted by a
detective. The court concluded the detective had "utilize[d] appropriate
investigative tactics to obtain additional information from [a] witness," and there
was no evidence the detective actually showed the witness "text messages or
play[ed] . . . phone records or indicate[d] anything other than the fact that they
exist[ed]." The court found defendant's "bare assertion . . . suggest[ing] that
these text messages and phone records exist [wa]s insufficient to show the State
was withholding material information."
In addition, the PCR court considered defendant's assertions concerning
"unconfirmed material" regarding Detective Garrels's and Rodriguez's
statements. However, the court found the "material [wa]s at most, speculative."
A-1932-24 19 Indeed, "[t]here [wa]s nothing in the record to suggest that the State was
withholding information regarding" Detective Garrels nor how the detective's
disciplinary record, "two years after [defendant] pled guilty," was "pertinent to
this case."
Moreover, the PCR court found "there [wa]s nothing to indicate or suggest
that Rodriguez's statement to police would have included exculpatory
information" and "[t]he argument that there may have been exculpatory
information withheld [wa]s not enough." The PCR court found defendant could
not "point to any specific evidence that was withheld, let alone demonstrate that
it was material to either guilt or punishment."
Further, the PCR court considered whether trial counsel's failure to
interview the witnesses prejudiced defendant's case. In this respect, the court
found "it [wa]s unclear as to how the statements made would have impacted
[defendant]'s decision to plead guilty." The court noted the statements were
"made years later" and "it [wa]s unclear as to how the . . . statements . . . would
have changed the outcome of the case, exonerated [defendant], or even been
impactful in his decision to enter a guilty plea."
Moreover, the court found "counsel's performance was in no way
tantamount to a complete denial of representation." Also, the court stated "[i]t
A-1932-24 20 [wa]s not entirely clear . . . what [defendant] was seeking to prove through the
. . . witnesses." Therefore, "[e]ven in viewing this deficiency in a light most
favorable to [defendant], it d[id] not rise to the level of prejudice."
Thus, the PCR court concluded, "[t]he allegations submitted by
[defendant] do not require the [c]ourt to grant a hearing as [defendant] ha[d] not
presented a prima facie case of ineffective assistance of counsel."
On appeal, defendant presents the following arguments:
I. THE PETITION PRESENTS A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. THE STANDARD FOR A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISES FROM FEDERAL AND STATE PRECEDENT.
B. [DEFENDANT] MADE OUT A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, SUFFICIENT TO WARRANT AN EVIDENTIARY HEARING.
II. T[HE] MOTION JUDGE ABUSED HER DISCRETION IN DENYING AN EVIDENTIARY HEARING.
III. THE PETITION PRESENTED A COGNIZABLE CLAIM OF VIOLATION OF BRADY V. MARYLAND; THE STATE FAILED IN SEVERAL INSTANCES TO HONOR ITS DUE PROCESS OBLIGATIONS UNDER APPLICABLE
A-1932-24 21 PRECEDENT AND CONSTITUTIONAL [3] REQUIREMENTS.
IV. COUNSEL'S DEFICIENT PERFORMANCE, CERTAIN BRADY VIOLATIONS, AND AN ALL OR NOTHING "COLLECTIVE" CONTINGENCY IN THE OFFERED PLEA, CONVERGED IN THE PLEA HEARING TO RENDER [DEFENDANT]'S PLEA LESS THAN KNOWING, INTELLIGENT AND VOLUNTARY.
Defendant contends the State committed Brady violations by failing to
produce the text messages, alluded to by Detective Garrels during his interview
of Euceda, and information regarding Detective Garrels's 2021 thirty-day
disciplinary suspension. He also contends counsel's representation was
ineffective because she failed to "contact and interview potential witnesses
whom defendant identified"; "follow-up" on the text messages; "file a motion
for severance"; and "insisted . . . that going to trial would be futile." Defendant
argues he established a prima facie right to PCR and the PCR court abused its
discretion by not holding an evidentiary hearing.
When "the PCR court has not conducted an evidentiary hearing, we review
its legal and factual determinations do novo." State v. Aburoumi, 464 N.J.
Super. 326, 338 (App. Div. 2020). PCR "is New Jersey's analogue to the federal
3 Brady v. Maryland, 373 U.S. 83 (1963). A-1932-24 22 writ of habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State
v. Preciose, 129 N.J. 451, 459 (1992)). It "provide[s] a built-in 'safeguard that
ensures that a defendant [i]s not unjustly convicted.'" State v. Nash, 212 N.J.
518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).
"A petition for [PCR] is cognizable if based upon . . . [a s]ubstantial denial
in the conviction proceedings of defendant's rights under the Constitution of the
United States or the Constitution or laws of the State of New Jersey." R. 3:22-
2(a).
In Brady, "the United States Supreme Court held that due process forbids
the government from withholding material evidence favorable to an accused."
State v. Hernandez, 225 N.J. 451, 466 n.5 (2016). "In order to establish a Brady
violation, the defendant must show that: (1) the prosecution suppressed
evidence; (2) the evidence is favorable to the defense; and (3) the evidence is
material." State v. Martini, 160 N.J. 248, 268 (1999).
Our Court has noted "[t]he disclosures required by Rule 3:13-3(b)(1),
which include the release of exculpatory information or material and all other
information relevant to a legitimate defense, are more expansive than the due
process disclosures mandated by Brady and its progeny." Hernandez, 225 N.J.
at 466 n.5. "[T]he Rule has been described as establishing an 'open file'
A-1932-24 23 discovery system whereby virtually all records and information in the
prosecutor's possession must be disclosed, subject to the prosecutor's authority
to apply for a protective order." State v. Allen, 482 N.J. Super. 142, 151 n.2
(App. Div. 2025) (citing Hernandez, 225 N.J. at 453).
In addition to the right to discovery, "[t]hose accused in criminal
proceedings are guaranteed the right to counsel to assist in their defense." State
v. Gideon, 244 N.J. 538, 549 (2021) (citing U.S. Const. amend. VI; N.J. Const.
art. I, ¶ 10). "[I]t is not enough '[t]hat a person who happens to be a lawyer is
present at trial alongside the accused,' rather, the right to counsel has been
interpreted by the United States Supreme Court and [the New Jersey Supreme]
Court as 'the right to the effective assistance of counsel.'" Id. at 550 (second
alteration in original) (citation omitted) (quoting Strickland v. Washington, 466
U.S. 668, 685-86 (1984)).
To establish a prima facie claim for ineffective assistance of counsel, a
defendant must satisfy the two-prong test established in Strickland. "First, the
defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
A-1932-24 24 the 'counsel' guaranteed the defendant by the Sixth Amendment."4 Strickland,
466 U.S. at 687. "[A] court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances,
the challenged action 'might be considered sound trial strategy.'" Id. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
"Moreover, when a defendant asserts their attorney was ineffective by
failing to file a specific motion, they must establish that the motion would have
been successful." State v. Balbosa, 481 N.J. Super. 497, 520 (App. Div. 2025)
(citing State v. O'Neal, 190 N.J. 601, 619 (2007)). Indeed, "[i]t is not ineffective
assistance of counsel for defense counsel not to file a meritless motion[.]" Ibid.
(quoting O'Neal, 190 N.J. at 619).
4 The Sixth Amendment to Constitution of the United States provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
A-1932-24 25 A defendant "must do more than make bald assertions that he was denied
the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). Therefore, when a defendant "claims his trial attorney
inadequately investigated his case, he must assert the facts that an investigation
would have revealed, supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the certification." Ibid.
See also R. 1:6-6 ("If a motion is based on facts not appearing of record or not
judicially noticeable, the court may hear it on affidavits made on personal
knowledge, setting forth only facts which are admissible in evidence to which
the affiant is competent to testify . . . ."); R. 1:4-4(b) ("In lieu of the affidavit,
oath or verification required by these rules, the affiant may submit [a]
certification, which shall be dated and immediately precede the affiant's
signature." The affiant must "certify that the foregoing statements made by me
are true. I am aware that if any of the foregoing statements made by me are
wil[l]fully false, I am subject to punishment.").
Under "the 'second, and far more difficult, prong of'" Strickland, a
defendant must show that his or her defense was prejudiced. Gideon, 244 N.J.
at 550 (quoting Preciose, 129 N.J. at 463). The defendant must demonstrate
"that counsel's errors were so serious as to deprive the defendant of a fair trial,
A-1932-24 26 a trial whose result is reliable." Strickland, 466 U.S. at 687. "Prejudice is not
to be presumed." Gideon, 244 N.J. at 551 (citing State v. Fritz, 105 N.J. 42, 52
(1987)). "The defendant must 'affirmatively prove prejudice.'" Ibid. (quoting
Strickland, 466 U.S. at 693).
In the context of a guilty plea, a defendant must establish "that there [wa]s
a reasonable probability that, but for counsel's errors, [he or she] would not have
pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J.
339, 351 (2012) (second alteration in original) (internal quotation marks
omitted) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)). A
defendant must convince the court that a "decision to reject [a] plea bargain
would have been rational under the circumstances." Padilla v. Kentucky, 559
U.S. 356, 372 (2010).
When a guilty plea is contested, counsel's performance is not deficient if
"a defendant considering whether or not to plead guilty to an offense receives
correct information concerning all of the relevant material consequences that
flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div.
2012) (citing Nuñez-Valdéz, 200 N.J. at 138).
A-1932-24 27 If defendant fails to "make[] both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversary process that renders
the result unreliable." Strickland, 466 U.S. at 687.
A defendant "must establish the right to [PCR] by a preponderance of the
credible evidence." Preciose, 129 N.J. at 459 (citing State v. Mitchell, 126 N.J.
565, 579 (1992)). "R[ule] 3:22-1 does not require evidentiary hearings to be
held on [PCR] petitions [and] R[ule] 3:22-10 recognizes judicial discretion to
conduct such hearings." Cummings, 321 N.J. Super. at 170. An abuse of
discretion "arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting
Achacoso-Sanchez v. Immigr. and Naturalization Serv., 779 F.2d 1260, 1265
(7th Cir. 1986)).
Nevertheless, PCR "courts ordinarily should grant evidentiary hearings to
resolve ineffective-assistance-of-counsel claims if a defendant has presented a
prima facie claim in support of" PCR. Preciose, 129 N.J. at 462. "[C]ourts
should view the facts in the light most favorable to a defendant to determine
whether a defendant has established a prima facie claim." Id. at 462-63. "A
prima facie case is established when a defendant demonstrates 'a reasonable
A-1932-24 28 likelihood that his or her claim . . . will ultimately succeed on the merits.'" State
v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(b)).
Applying this well-established law, we consider defendant's arguments.
First, we conclude defendant failed to make a prima facie showing of Brady or
Rule 3:13-3 violations. Defendant contends he was not provided with discovery
in the form of text messages alluded to by Detective Garrels during his interview
of Euceda. We note the State's position that "it is unclear where the quasi-
transcription came from." Moreover, the State contends "presum[ably] . . .
[d]efendant was aware of it prior to" pleading guilty or filing his sentencing
appeal, and thus the claim is barred. See R. 3:22-4(a) ("Any ground for relief
not raised in the proceedings resulting in the conviction, or in a post-conviction
proceeding brought and decided prior to the adoption of this rule, or in any
appeal taken in any such proceedings is barred."). Nevertheless, we conclude
defendant's claim fails because there is no evidence that the text messages ever
existed.
Moreover, defendant's claim that information about Detective Garrels's
2021 disciplinary suspension should have been disclosed is without merit, given
that the shooting occurred in 2016, defendant pleaded guilty in 2019, and the
detective was not disciplined until 2021. Under these circumstances, defendant
A-1932-24 29 cannot establish that the State suppressed evidence; that the evidence would
have been favorable to his defense; or that the evidence was material. See
Martini, 160 N.J. at 268.
Second, we conclude there is no merit to defendant's argument that he
made a prima facie showing of ineffective assistance of counsel under
Strickland.
Defendant acknowledges "[t]he non-sworn status[,] or other formal
flaws[,] of the Martinez, Burrell[,] and Rodriguez interviews/affidavits."
However, he asserts they "signed their affidavit or the investigator's summary"
and thus presented "cognizable evidence" that could have been cured through a
"subpoena[] to appear," despite any format deficiency. This argument misses
the mark and holding in Cummings. See 321 N.J. Super. at 170 (Claims must
be "supported by affidavits or certifications based upon the personal knowledge
of the affiant or the person making the certification."). Indeed, there is no
appearance or evidentiary hearing without a prima facie claim that is established
through properly executed affidavits and certifications.
Notwithstanding these deficiencies and giving defendant every inference
that counsel should have interviewed his suggested witnesses, defendant fails to
establish prejudice, the "far more difficult prong." Gideon, 244 N.J. at 550
A-1932-24 30 (quoting Preciose, 129 N.J. at 463). The import of the statements from
defendant's witnesses merely establishes a police investigation and their
consideration of others as possible suspects. Even Martinez's "important
information" that could have "exonerated" defendant is not revealed in
Martinez's statement or by defendant in his petition. Under these circumstances,
defendant cannot satisfy the second Strickland prong and fails to establish a
prima facie claim of ineffective assistance of counsel.
Defendant's ineffective assistance of counsel claim regarding counsel's
failure to "follow-up" on the text messages is likewise without merit. As we
stated, there was no evidence the text messages existed.
Additionally, defendant's argument that counsel failed to move for
severance is without merit. Defendant was scheduled to proceed to a joint trial
with his co-defendants, and he argues counsel should have moved for severance
to secure a separate trial. He states "[c]o-defendants cannot be tried together
fairly if their defenses are antagonistic and mutually exclusive or
irreconcilable." Defendant claims he "could rationally foresee a joint trial
. . . resulting in a rejection of his defense that he was a victim, not an assailant."
However, nothing in the record suggests that severance was warranted. See
State v. Brown, 118 N.J. 595, 605-06 (1990) ("The test for granting severance,
A-1932-24 31 however, is a rigorous one. Separate trials are required only when defendants
'present defenses that are antagonistic at their core.' United States v. Berkowitz,
662 F.2d 1127, 1134 (5th Cir. 1981). The mere existence of hostility, conflict,
or antagonism between defendants is not enough."). Nor does defendant
overcome the presumption that counsel did not "exercise . . . reasonable
professional judgment" in her decision. See Strickland, 466 U.S. at 690.
Further, defendant's severance argument amounts only to a "bald assertion." See
Cummings, 321 N.J. Super. at 170 (noting petitioner must do more than make
bald assertions to establish ineffective assistance of counsel).
Further, defendant's claim that he was provided with ineffective assistance
regarding counsel's insistence on proceeding to trial is belied by the plea
hearing. The plea court found defendant pleaded "freely," "voluntarily,"
"knowingly," "intelligently," and without threat or coercion. The transcript of
the plea hearing does not support defendant's bald assertion counsel insisted on
defendant's plea. Further, defendant does not assert that it would have been
reasonable for him to forego the plea deal. Indeed, defendant would have been
confronted with a multi-count indictment at trial.
Because we are satisfied defendant failed to establish a prima facie claim
of Brady or Rule 3:13-3 violations, or ineffective assistance of counsel under
A-1932-24 32 Strickland, we conclude the PCR court did not abuse its discretion in denying
his request for an evidentiary hearing.
To the extent we have not addressed defendant's remaining arguments, we
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-1932-24 33