                        NOT FOR PUBLICATION WITHOUT THE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-4374-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

QUARWEE WALKER,

        Defendant-Appellant.


              Submitted October 11, 2017 – Decided November 3, 2017

              Before Judges Carroll and Leone.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 09-03-0975.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven M. Gilson, Designated
              Counsel, on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Stephen
              A.    Pogany,   Special    Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM

        Defendant Quarwee Walker appeals from a March 30, 2016 order

denying his petition for post-conviction relief (PCR) without an
evidentiary hearing.              Following our review of the record and

applicable     law,   we    affirm     the       denial    of   PCR    but    remand     for

resentencing.

      A grand jury indicted defendant, Bryan Witherspoon, Neil

Herbert, and others with a series of third-degree drug offenses

spanning various dates from December 10, 2008 to January 7, 2009.

Regarding December 10, 2008, defendant was charged with possession

of   cocaine,     N.J.S.A.        2C:35-10a(1),          distribution        of    cocaine,

N.J.S.A.   2C:35-5a(1)       and     -5b(3),       and    distribution        of   cocaine

within 1,000 feet of a school, N.J.S.A. 2C:35-7 (counts one to

three).    Regarding December 11, defendant and Witherspoon were

charged with the same three substantive offenses (counts five to

seven), and with conspiracy to possess cocaine with intent to

distribute, N.J.S.A. 2C:5-2 (count four).                   Regarding December 16,

defendant and Herbert were charged with the same three substantive

offenses (original counts nine to eleven), and with conspiracy

(original count eight).            Regarding January 1, 2009, defendant was

charged    with   the      same    substantive       offenses         (original      counts

fifteen to seventeen).            With respect to January 7, 2009, defendant

was charged with possession of cocaine, possession of cocaine with

intent    to   distribute,         N.J.S.A.       2C:35-5a(1)         and    -5b(3),     and

distributing cocaine within 1,000 feet of a school (counts eighteen



                                             2                                      A-4374-15T1
to twenty), and identical charges with respect to heroin (counts

twenty-one to twenty-three).

      Defendant was tried twice.       The jury in the first trial

acquitted him of counts eighteen to twenty-three relating to

January 7, 2009.    The jury deadlocked on the remaining charges and

a mistrial was declared as to those counts.

      Before the second trial, the judge dismissed the original

count eight conspiracy charge, expanded count four to charge

conspiracy from December 10 through January 1, and renumbered the

original counts nine to seventeen as counts eight through sixteen.

The   jury    thereafter   convicted   defendant   of   conspiring    to

distribute cocaine from December 10 through January 1 (count four),

as well as all charged offenses relating to December 10 (counts

one to three), December 16 (renumbered counts eight to ten), and

January 1 (renumbered counts fourteen to sixteen).            The jury

acquitted defendant of the substantive offenses regarding December

11 (counts five to seven).

      The facts underlying the jury's verdict in the second trial

are set forth in our opinion in defendant's direct appeal.            We

repeat them here to lend context to the issues defendant raises

in the present appeal:

             The State's witnesses were East Orange
             Detectives Lance Merrill, Rahsaan Johnson, and
             Ramon Rodriguez. They presented evidence that

                                   3                           A-4374-15T1
[defendant] and Witherspoon conspired to and
did sell crack cocaine from December 10, 2008,
through January 1, 2009, including sales on
December 10, 11, 16, and 30, and on January
1.   Each sale was made to Merrill, acting
undercover, with either Johnson or Rodriguez
observing from twenty-five to fifty feet away.
The sales occurred between 8:00 and 8:40 p.m.,
near or on the enclosed front porch of a house
in an area lit by a streetlamp and by the
lights of the adjacent high school football
field and parking lot.      Both Johnson and
Rodriguez knew [defendant] and Witherspoon
prior to the events in question.

On December 10, Johnson observed [defendant]
drive up in a GMC Yukon registered to
[defendant].    [Defendant] and Witherspoon
greeted each other and walked toward the
house.   Merrill approached [defendant] and
Witherspoon, asked for crack, and gave
[defendant] $50. [Defendant] went inside the
Yukon, emerged, and handed five bags of crack
to Merrill. [Defendant] and Witherspoon then
went into the house together.      At trial,
Merrill and Johnson identified [defendant] as
the man who sold the crack.

On December 11, Rodriguez observed Merrill
approach [defendant] and ask for crack.
[Defendant] told Merrill to see "B" in the
house.   Merrill entered the porch and met
Bryan Witherspoon.      Merrill gave $50 to
Witherspoon in return for five bags of crack.
At trial, Merrill and Rodriguez identified
Witherspoon as the man who sold the crack, and
[defendant] as the man who directed Merrill
to the house.

On December 16, Rodriguez observed [defendant]
sitting in his Yukon.      Merrill approached
[defendant] and asked for crack. [Defendant]
gestured towards the house and told Merrill
to see "Buzz" — co-defendant Neil Herbert, who
is Witherspoon's brother. Inside the porch,

                      4                          A-4374-15T1
            Merrill gave $100 to Herbert in exchange for
            ten bags of crack.     Merrill and Rodriguez
            identified [defendant] at trial.

                 . . . .

            On January 1, Johnson observed as Merrill went
            to the house. [Defendant] pulled up in his
            Yukon and got out. Merrill asked [defendant]
            for crack. [Defendant] got something out of
            his Yukon and motioned for Merrill to come
            with him into the porch. There, [defendant]
            gave Merrill five bags of crack for $50. At
            trial, both Merrill and Johnson identified
            [defendant]. [Defendant] was later arrested
            with $1,110 in cash.

            At trial, [defendant] called his sister
            Hassana McPherson, his brother-in-law Marc
            McPherson, and his fiancée Takiya Knowles, who
            was also the mother of his five children. They
            testified that he was at his son's birthday
            party at or around the time of the December
            11 drug sale. [Defendant] also called Calvin
            Range and Josephine Witherspoon, residents of
            the house, who testified that they were
            friends with [defendant] and Witherspoon, that
            [defendant] and Witherspoon came to play cards
            at the house frequently, and that Range
            frequently borrowed [defendant's] Yukon.

            [State v. Walker, No. A-2528-11 (App. Div.
            Dec. 11, 2013) (slip op. at 2-5), certif.
            denied, 218 N.J. 275 (2014).]

       In October 2011, defendant was sentenced to an aggregate ten-

year   prison   term   with   five   years   of   parole   ineligibility.

Appropriate fines and penalties were also imposed.

       On direct appeal, defendant challenged his convictions on the

basis that the trial court's jury instructions on identification,


                                     5                            A-4374-15T1
alibi, and how to consider multiple charges, were erroneous.         Id.

(slip op. at 7-18).     In rejecting defendant's claims of plain

error,1 we stated:

          The State presented a strong case to support
          [defendant's] convictions. Even if Rodriguez
          and   Merrill    were   mistaken    in   their
          identifications of [defendant] on December 11,
          that does not necessarily mean they were
          mistaken on other days. Such an error gives
          no reason to doubt Johnson's identifications
          of [defendant] on December 10 and January 1,
          or to ignore the corroboration provided by
          [defendant's] use of his Yukon on December 16
          and January 1.

          [Id. (slip op. at 17-18).]

     Defendant   also   challenged   his   sentence   because   of   the

confusion that was caused when the original count eight was

dismissed, and the original counts nine through seventeen were

renumbered counts eight through sixteen for purposes of the second

trial.   Id. (slip op. 23-24).       We agreed that this confusion

resulted in the court's failure to impose a sentence on the

original count seventeen.   Id. (slip op. at 24).     Accordingly, we

vacated the sentences imposed on the original counts nine through

seventeen and remanded for resentencing on those counts.          Ibid.




1
  Under the plain error standard, we disregard any error or
omission by the trial court "unless it is of such a nature as to
have been clearly capable of producing an unjust result."     R.
2:10-2.

                                 6                              A-4374-15T1
As noted, the Supreme Court thereafter denied certification. State

v. Walker, 218 N.J. 275 (2014).

     Defendant   filed   a   timely       PCR   petition,   supported    by   a

supplemental   certification   claiming         ineffective   assistance      of

trial counsel.    Among other things, defendant contended trial

counsel was ineffective in failing to challenge the surveillance

location of the back-up police officers and request their location

be revealed because they "may have been too far away to accurately

identify the drug seller."       Defendant also alleged that trial

counsel "led [him] to believe" the testimony of the alibi witnesses

regarding the December 11, 2008 charges would lead to his acquittal

on the remaining charges.

     Judge Peter V. Ryan, who had also presided over the second

trial, issued a sixteen-page written opinion denying defendant's

petition without an evidentiary hearing.              With respect to the

officers' surveillance locations, the judge noted "there were

countless questions and thorough examinations by trial counsel on

this issue" and "the locations were mentioned in detail[.]"                The

judge also found "the trial strategy used by defense counsel was

misidentification[,]"    and    trial       counsel   called    the     "alibi

witnesses to testify that [d]efendant was not involved in the

alleged narcotics distribution on December 11, 2008," as a means

of attacking the police officers' credibility and identifications

                                      7                               A-4374-15T1
regarding the remaining dates.       Citing State v. Bey, 161 N.J. 233,

251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L.

Ed. 2d 964 (2000), the judge concluded "[t]he simple fact that a

trial strategy fails does not necessarily mean that counsel was

ineffective."

     On appeal, defendant argues:

           THIS   MATTER   MUST   BE  REMANDED  FOR   AN
           EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
           ESTABLISHED A PRIMA FACIE CASE OF TRIAL
           COUNSEL'S INEFFECTIVENESS.

                 A. TRIAL COUNSEL FAILED TO CHALLENGE
                 THE SURVEILLANCE LOCATIONS OF THE
                 BACK-UP POLICE OFFICERS AND FAILED
                 TO REQUEST THAT THEIR LOCATIONS BE
                 REVEALED.

                 B.    TRIAL  COUNSEL   FAILED    TO
                 ADEQUATELY    ADVISE     DEFENDANT
                 REGARDING     ADDITIONAL      ALIBI
                 WITNESSES AND/OR FAILED TO PURSUE
                 THEM.

     Having   considered     defendant's   arguments   in   light    of   the

record and applicable legal standards, we conclude they lack

sufficient    merit   to   warrant   extensive   discussion.    R.    2:11-

3(e)(2).     We affirm substantially for the reasons expressed in

Judge Ryan's March 30, 2016 written opinion, to which we add the

following comments.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated


                                      8                             A-4374-15T1
in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.

Fritz, l05 N.J. 42 (l987).           In order to prevail on a claim of

ineffective      assistance     of   counsel,   defendant    must     meet   the

following two-prong test: (l) counsel's performance was deficient

and he or she made errors so egregious counsel was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068,

80 L. Ed. 2d at 693, 698.

       Defendant renews his claim that trial counsel should have

requested the surveilling detectives' locations be revealed so as

to   challenge    their    observations.        However,    Merrill   directly

engaged in the undercover drug purchases and he was able to

identify defendant from those transactions.            The two surveilling

officers also knew defendant, and there was extensive questioning

about their locations, one of which was openly discussed.                 Thus,

even   if   we   were     to   somehow   conclude   that    trial     counsel's

performance was deficient, there is no reasonable probability that



                                         9                              A-4374-15T1
the result would have been different had the backup officers'

exact surveillance locations been disclosed.

      Defendant is also unable to satisfy Strickland's second,

prejudice     prong   with   respect    to    his   claim   that   counsel   was

ineffective for leading him to believe the testimony of his alibi

witnesses would lead to his acquittal on all charges.                   In his

certification, plaintiff asserts that, if properly advised, he

would have pled guilty to ease the financial strain on his family.

However, he further avers he would have "pled guilty even though

I did not commit these crimes."           Given this sworn proclamation of

innocence, there is nothing in the record that leads us to conclude

defendant could provide the requisite factual basis for a guilty

plea.2   Consequently, a trial would have been necessary in any

event.   We also note, as we did on defendant's direct appeal, that

the   State    presented     a   strong      case   to   support   defendant's

convictions, and even if Rodriguez and Merrill were mistaken in




2
  Trial courts may not accept a guilty plea unless there is a
factual basis supporting it. R. 3:9-2. "Indeed, 'it is essential
to elicit from the defendant a comprehensive factual basis,
addressing each element of a given offense in substantial detail.'"
State v. Perez, 220 N.J. 423, 432 (2015) (quoting State v.
Campfield, 213 N.J. 218, 236 (2013)).       Trial courts "must be
'satisfied from the lips of the defendant' . . . that he committed
every element of the crime charged[.]" Id. at 432-33 (citations
omitted).


                                       10                               A-4374-15T1
their identifications of defendant on December 11, that does not

necessarily mean they were mistaken on other days.

     To the extent defendant now argues on appeal that trial

counsel should have pursued additional alibi witnesses, he does

not identify them or submit any affidavits or certifications from

any witness attesting to the alibi.      Defendant's bald assertions

are insufficient to support this claim.      See State v. Cummings,

321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199

(1999).

     We are satisfied from our review of the record defendant

failed to make a prima facie showing of ineffectiveness of trial

counsel under the Strickland-Fritz test.     The PCR court correctly

concluded an evidentiary hearing was not warranted.     See State v.

Preciose, 129 N.J. 452, 462-63 (1992).    Accordingly, we affirm the

denial of defendant's PCR petition.

     As a final matter, as previously noted, on defendant's direct

appeal we vacated the sentences imposed on the original counts

nine through seventeen and remanded for resentencing on those

counts.   Although the parties have not raised the issue, we are

advised there is no record that defendant was ever resentenced.

We therefore remand for resentencing in accordance with our prior

opinion in No. A-2528-11, and direct the resentencing be completed

within sixty days.

                               11                            A-4374-15T1
    Affirmed, and remanded for resentencing.   We do not retain

jurisdiction.




                             12                         A-4374-15T1
