                                NOT FOR PUBLICATION WITHOUT THE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-0153-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EUGENE WALKER,

     Defendant-Appellant.
_________________________

                    Submitted October 7, 2019 – Decided November 15, 2019

                    Before Judges Sabatino and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 13-06-1400.

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

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Emily M. M. Pirro,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Eugene Walker appeals from a July 20, 2018 Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

       Defendant was charged in a multi-count indictment with second-degree

conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 (count one); armed

robbery, contrary to N.J.S.A. 2C:15-1 (counts two and three); unlawful

possession of a firearm, contrary to N.J.S.A. 2C:39-5(b) (count four); and

possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a)

(count five). The State refused to offer a plea agreement unless defendant also

agreed to plead guilty to a homicide charge returned in a separate indictment. 1

Accordingly, on the eve of trial, defendant decided to enter an open plea. 2

       At the plea hearing, defendant admitted that when he was sixteen years

old, he and co-defendant Larry MacRae drove a stolen vehicle to rob a bodega

in Newark. MacRae used a handgun to force an employee and an individual

delivering water inside the bodega and directed the employee to open the



1
    The homicide charge was subsequently dismissed.
2
  An open plea includes neither "a recommendation from the State, nor a prior
indication from the court, regarding sentence." State v. Ashley, 443 N.J. Super.
10, 22 (App. Div. 2015) (quoting State v. Kates, 426 N.J. Super. 32, 42 n.4 (App.
Div. 2012)).
                                                                          A-0153-18T4
                                        2
register. Defendant removed cash from the register and stole several boxes of

cigars while MacRae held the employee at gunpoint. During the robbery,

defendant was wearing a distinctive sweatshirt.

      Defendant, wearing the same sweatshirt, was seen exiting the stolen

vehicle with a backpack. The police located cigar boxes stolen from the bodega

in the back of the vehicle which defendant admitted placing in the car.

Defendant also conceded at the plea hearing that he did not have a permit to

carry a handgun and he had "no defense to th[e] case."

      The court sentenced defendant on counts two, three, and four to concurrent

terms of sixteen years of imprisonment with an 85% period of parole ineligibility

pursuant to the No Early Release Act. Counts one and five were merged with

count two for purposes of sentencing. Defendant appealed only his sentence and

an excessive sentencing panel of our court affirmed.

      Defendant filed a timely pro se PCR petition supported by a certification.

Appointed PCR counsel also filed a letter brief supplementing defendant's

petition claiming defendant's trial counsel was ineffective during the pretrial

investigatory phase of the proceedings and at the plea hearing. Specifically, as




                                                                         A-0153-18T4
                                       3
characterized by the PCR court, 3 defendant maintained he was waived to adult

court as a result of the pending homicide charge, and had defense counsel

disposed of that offense first, the robbery charges would have remained in

juvenile court. Defendant also claimed his counsel failed to provide him with

all discovery in the case, failed to file a motion to dismiss the indictment, and

forced him to plead guilty instead of proceeding to trial to challenge the witness

identifications.

      After hearing oral arguments, Judge Ronald D. Wigler rendered a

comprehensive written opinion and concluded that defendant failed to satisfy

the two-part test for ineffective assistance of counsel detailed in Strickland v.

Washington, 466 U.S. 688 (1984), and adopted by the New Jersey Supreme

Court in State v. Fritz, 105 N.J. 42 (1987) (Strickland/Fritz). The court also

determined that defendant's claims were procedurally barred under Rule 3:22-4.

Finally, relying on State v. Preciose, 129 N.J. 451, 462 (1992), the court

concluded that because defendant failed to establish a prima facie case for

ineffective assistance of counsel, an evidentiary hearing was not warranted.



3
   The parties have not included in the record the supplemental letter brief
submitted by defendant's PCR counsel. In its written decision, the PCR court
catalogued the issues raised by PCR counsel and no party on appeal has claimed
that the PCR court failed to identify or address any issue raised by PCR counsel.
                                                                          A-0153-18T4
                                        4
      Judge Wigler rejected defendant's argument that his robbery case was only

"waived up to the adult court due to [the] pending homicide" charge and his trial

counsel was ineffective for failing to address the homicide case first. The court

explained that defendant misapplied the applicable waiver statute. See N.J.S.A.

2A:4A-6. Specifically, the court reasoned that "[w]hether or not [defendant]

was charged with a homicide . . . was not before the [j]uvenile [c]ourt judge and

would have had no bearing on [defendant's] waiver motion as to [his] robbery

case," as the only relevant issues for the court to decide under N.J.S.A. 2A:4A-

6 were whether defendant was sixteen years old and if there was probable cause

to conclude defendant committed the robberies.

      Finally, Judge Wigler noted that the court, not trial counsel, controls when

a case is scheduled for trial. Accordingly, the court determined that there was

"simply no evidence that [t]rial [c]ounsel's assistance was outside the range of

competence demanded of attorneys in a criminal case," and that defendant also

failed to establish "that but for counsel's errors, the results of the proceeding

would have been different."

      Judge Wigler also dismissed defendant's claim that his trial counsel was

constitutionally ineffective because counsel failed to provide him with complete

discovery, which purportedly prevented him from "know[ing] the extent of the


                                                                          A-0153-18T4
                                        5
allegations against him."     The court found that defendant's claim lacked

"specificity" and that defendant failed to "provide any evidence to support this

conclusory allegation," and as such, failed to satisfy either prong of the

Strickland/Fritz test.

      The court similarly rejected defendant's claim that his trial counsel was

ineffective because she allegedly told him to plead guilty and "pressured and

rushed [him] to accept the plea offer [despite his attempt] to explain . . . that

[he] did not commit" the offenses for which he was charged. Judge Wigler again

found that defendant's allegations were "bald and conclusory" as he failed to

allege any facts that established his trial counsel pressured or forced him to

accept the plea, and his claims were directly belied by his colloquy with the

court at the plea hearing. Indeed, defendant pled guilty immediately prior to

jury selection and, at the plea hearing, stated that no one threatened him and he

was entering the open plea voluntarily, of his own free will, and because he was

guilty.

      Finally, Judge Wigler ruled that defendant's counsel was not ineffective

for failing to file a motion to dismiss the indictment.      The court rejected

defendant's claim that counsel should have "argue[d] for a dismissal . . . because

[he] did not commit any of [the] crimes" as meritless, unmoored to the evidence,


                                                                          A-0153-18T4
                                        6
and a "mere assertion of innocence." The court reasoned that defendant failed

to satisfy either prong of the Strickland/Fritz test because he failed to establish

that the motion to dismiss had merit and would have been successful, or that the

outcome of the proceedings would have been different had his trial counsel filed

the motion.

      On appeal, defendant raises the following points:

              POINT I

              THE PCR COURT ERRED BY DENYING
              DEFENDANT'S    PETITION     FOR    POST-
              CONVICTION RELIEF WITHOUT AFFORDING
              HIM AN EVIDENTIARY HEARING ON THE
              CLAIMS   THAT   HIS   TRIAL    ATTORNEY
              PROVIDED    HIM     WITH     INEFFECTIVE
              ASSISTANCE.

              A.   THE PREVAILING LEGAL PRINCIPLES
                   REGARDING CLAIMS FOR INEFFECTIVE
                   ASSISTANCE OF COUNSEL, EVIDENTIARY
                   HEARINGS AND PETITIONS FOR POST-
                   CONVICTION RELIEF.

              B.   DEFENDANT'S  CLAIMS                 ARE      NOT
                   PROCEDURALLY BARRED.

              C.   COUNSEL'S PERFORMANCE DURING PLEA
                   NEGOTIATIONS.

              D.   THE FAILURE TO MOVE TO DISMISS THE
                   INDICTMENT.



                                                                           A-0153-18T4
                                        7
      We disagree with defendant's arguments that his trial counsel provided

ineffective assistance and affirm substantially for the reasons detailed in Judge

Wigler's July 20, 2018 written decision. R. 2:11-3(e)(2). Because defendant

failed to establish a prima facie case of ineffective assistance, an evidentiary

hearing was not required. See Preciose, 129 N.J. at 462. Finally, because we

and Judge Wigler considered the merits of defendant's ineffective assistance of

counsel claim under the Strickland/Fritz test and found defendant's argument

without merit, we need not address defendant's claim in Point I(B) that the court

committed error in determining that defendant's claims were procedurally

barred.

      Affirmed.




                                                                         A-0153-18T4
                                       8
