                                NOT FOR PUBLICATION WITHOUT THE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-0847-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DOUGLAS E. WOODSON,
a/k/a DOUGLASS E. WOODSON,
and LIL JOEY,

     Defendant-Appellant.
_____________________________

                   Submitted March 4, 2020 – Decided April 28, 2020

                   Before Judges Whipple, Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 16-04-
                   0366.

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

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Nicole Handy, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals from the July 16, 2018 Law Division order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

      On April 26, 2016, defendant was charged in a Burlington County

indictment with first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one);

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

4(e) (count two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2)

(count three). The charges stemmed from defendant's commission of an armed

robbery with a fake gun at a Wendy's where he had previously worked, followed

by a police search when he fled into the woods and his subsequent apprehension

hiding under the brush.

      On August 29, 2016, defendant, who was extended term eligible, entered

a negotiated guilty plea to the robbery. In exchange, the State would move to

dismiss the remaining counts, and recommend a twelve-year sentence, subject

to an eighty-five percent period of parole ineligibility pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent with a parole

violation sentence on a prior robbery conviction. Under the plea agreement,

defendant also agreed to waive his right to appeal.


                                                                         A-0847-18T1
                                       2
       On October 28, 2016, defendant was sentenced in accordance with the

plea agreement. However, the sentencing judge imposed an eleven-year NERA

sentence, instead of the twelve years recommended by the State. On July 28,

2017, defendant filed a timely pro se petition for PCR, alleging ineffective

assistance of counsel (IAC), and was assigned PCR counsel. To support his

petition, defendant certified his "attorney [coerced him] into taking a plea ." He

asserted his attorney failed to "undertake certain investigations" to establish,

among other things, that his reason for being at the scene was to obtain "free

food" that was "discard[ed]" at closing time. He also asserted his attorney failed

to file "specific motions," including moving to exclude the show-up

identification by the store manager and suppress his arrest and alleged

statements to police based on a Miranda1 violation.

       Following oral argument, Judge Jeanne T. Covert denied defendant's

petition. In a July 16, 2018 written decision, the judge reviewed the factual

background and procedural history of the case, applied the applicable legal

principles, and concluded defendant failed to establish a prima facie case of

IAC.     The judge found defendant failed to show that either counsel's

performance fell below the objective standard of reasonableness set forth in


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-0847-18T1
                                        3
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome

would have been different without the purported deficient performance as

required under the second prong of the Strickland/Fritz test. Additionally, in

rejecting defendant's request for an evidentiary hearing, the judge concluded

defendant failed to present any issues that could not be resolved by reference to

the existing record.

      Initially, the judge recounted the facts as follows:

                   On November 19, 2015, at approximately 12:50
            a.m., New Jersey State troopers responded to a report
            of a robbery at a Wendy's fast food restaurant located
            at 102 Fort Dix Street, Wrightstown . . . . Upon arrival,
            troopers spoke with the Wendy's employees who stated
            that, around the time of closing, a man, later identified
            as [defendant], wearing all black clothing and carrying
            a gun entered the Wendy's in search of money. After
            unsuccessfully attempting to locate the money
            [defendant] fled on foot.

                  . . . . A short time later, troopers spotted a man,
            matching the description of the suspect . . . running
            from the rear of the Wendy's parking lot. The troopers
            pursued the man . . . on foot into a wooded area. . . . An
            aviation team and K-9 unit were called to the scene.

                  The K-9 officer led the troopers to a sewer basin
            canal where [defendant] was lying face-down in the
            water. The troopers identified themselves and ordered
            [defendant] to show his hands. [Defendant] did not
            comply. At this time, the K-9 officer was deployed for

                                                                         A-0847-18T1
                                        4
apprehension of [defendant]. [Defendant] continued to
ignore demands to show his hands and the troopers
entered the water to secure [defendant]. [Defendant]
was wearing a black jacket, black shirt, black pants,
black sneakers, and had a black ski mask. While
apprehending him, troopers asked [defendant] where
the gun was located. [Defendant] responded that he had
dropped the gun along the tree line after he fell down a
hill.

       After apprehension of [defendant], [the store
manager] was brought to the scene of the arrest. At the
scene, a show-up identification was conducted and [the
manager] told the troopers that he recognized
[defendant] as the suspect of the robbery by his voice
and stature. . . . At the police barracks, [defendant] was
read his Miranda warnings and signed a Miranda card.
The next day troopers returned to the scene of arrest and
located a black gun in the wooded area near the location
of the arrest.

        A few weeks later, [the manager] gave an audio
recorded statement to police. [He] told police that
. . . [a]t approximately 12:45 a.m., [he] was outside of
the restaurant and he noticed a person standing near the
drive-thru lane. The person was wearing all black,
including a ski mask and gloves. During this statement,
he told the police he was certain that [defendant] was
the person who committed the robbery. [The manager]
explained that [defendant] previously worked at the
Wendy's and he frequently closed the store at night and
was aware of the closing procedures.            Another
employee . . . who gave an audio recorded statement to
the police a few weeks after the robbery, said . . . he
saw a man, [defendant], in all black enter the Wendy's
and waive a gun. [The employee] said [defendant] did
not say a word and he walked towards the restaurant's
back office where the safe was located.

                                                             A-0847-18T1
                            5
      In addressing defendant's contention that he received IAC by virtue of his

attorney's failure to move to suppress his arrest and alleged statements to police

based on a Miranda violation, the judge explained:

            [Defendant] denies he was read his Miranda rights, but
            this is an unsubstantiated self-serving certification. . . .
            [A]ccording to police reports, [defendant] volunteered
            a statement that he committed the robbery because he
            was "homeless and looking for money" after being read
            his Miranda rights [at the time of his arrest]. According
            to police, he did not make this statement as a result of
            a police interrogation, and even if he was not read his
            Miranda rights, the statement would have likely been
            admissible because it was volunteered. Additionally, a
            recording of this statement was not taken at the scene
            of the arrest not only because this would have been
            logistically difficult but also because of [defendant's]
            refusal to make a statement while being recorded.
            [Defendant] admitted he was familiar with law
            enforcement procedures and stated that he would not
            give a recorded statement . . . because it "came back to
            bite him" in a past encounter with law enforcement.

                  A signed Miranda card was completed by
            [defendant] at the police barracks. No recorded
            statement was taken at the police barracks apparently
            because [defendant] refused to give one. . . .
            [Defendant's] new assertion at oral argument that the
            signature on the Miranda card was not his lacks either
            substantiation or credibility.

                  However, all credibility issues aside, under the
            prejudice prong of Strickland, [defendant's] arguments
            are irrelevant. The weight of the evidence against
            [defendant] was overwhelming.         Even if these
            incriminating statements were not used at trial, it is

                                                                           A-0847-18T1
                                         6
            highly unlikely that [defendant] would have prevailed.
            If his statement that he was "homeless and looking for
            money" and about dropping the gun were suppressed,
            the police would have inevitably went back the
            following day, as they did, and found the gun near the
            scene of the arrest. The evidence of the gun would have
            been introduced at trial. The fact that [defendant] was
            seen fleeing from the Wendy's, hid from the police in
            the woods, refused to comply to turn himself in, knew
            intimately the Wendy's closing procedures and exactly
            what door to enter and where the safe was located (as a
            former employee), and was arrested wearing clothing
            matching the description of the suspect, was identified
            by two witnesses, among other facts, would lead a
            reasonable juror to find [defendant] guilty beyond a
            reasonable doubt. There is no indication that the result
            of the proceedings would have been different.

                  Thus, it is far from certain that [defendant] would
            have successfully argued a motion to suppress and
            regardless, he is unable to meet the second prong of
            Strickland because of the weight of the evidence
            against him.

      In addressing defendant's contention that his statement about dropping the

gun would have been suppressed had his attorney filed the necessary motion,

relying on State v. Stephenson, 350 N.J. Super. 517 (App. Div. 2002), the judge

determined that a "potential motion to suppress his statement pertaining to the

gun would not have been meritorious" because the public safety exception

applied. See id. at 525 (explaining that the "unwarned questioning about the

presence or whereabouts of a gun" permitted under the public safety exception


                                                                        A-0847-18T1
                                       7
to the Miranda rule is authorized when the State "demonstrate[s] '(1) there was

an objectively reasonable need to protect the police or the public; (2) from an

immediate danger; (3) associated with a weapon; and that (4) the questions asked

were related to that danger and reasonably necessary to secure public safety.'"

(quoting State v. Prim, 730 N.E.2d 455, 463 (1999))).

      In that regard, Judge Covert stated "the police had an objectively

reasonable need to protect themselves and the public from immediate danger

related to the handgun and the questioning related to the handgun was about its

location on [defendant] or in the wooded area." The judge expounded:

            When the officers asked where the gun was located, it
            was unknown to them whether [defendant] still
            possessed the gun or not. Additionally, [defendant]
            was hiding in a public wooded area, and although it was
            at night, the general public could have found the gun
            causing a threat to the public at large, not to mention
            the harm that could have befallen the police officers by
            being shot on the scene.

      Likewise, relying on State v. Wright, 444 N.J. Super. 347 (App. Div.

2016), the judge rejected defendant's argument that his attorney was ineffective

by failing to challenge the manager's identification. See id. at 360-61 (upholding

trial court's finding that misidentification was unlikely based on "the victim's

ability to see . . . and provide a 'highly accurate' description" of the assailant

prior to the identification, notwithstanding "the inherent suggestibility of a

                                                                          A-0847-18T1
                                        8
showup [identification] . . . compounded . . . by several system variables,"

including "the police impermissibly signal[ing] the victim in a variety of ways"

that they believed they had the assailant).

       Judge Covert explained:

                   Here, a Henderson[2] hearing may have been
             appropriate because the record . . . does not indicate
             whether [the manager] was brought to the scene to
             conduct the show-up identification within a two-hour
             timeframe. . . . Additionally, there is no evidence from
             the police reports regarding whether [the manager] was
             told that [defendant] may not be the perpetrator even
             though he was arrested and that he should not feel
             compelled to make an identification. These two system
             variables are essential to a show-up identification and
             essential to a trial court in determining whether a
             Henderson hearing is necessary.

                   However, even if a Henderson hearing was
             conducted, it is highly unlikely that [defendant] would
             have been successful in suppressing the show-up
             identification. . . .     Taking [into] account [the
             manager's] ability to observe [defendant] at the time of
             the robbery, not to mention the inescapable and obvious
             fact that [defendant] was dressed identical to the
             perpetrator, in all black with a ski mask, uniquely and
             exceedingly unusual, there was little chance of an
             irreparable misidentification.

                    [The manager] had the opportunity to view
             [defendant] at the time of the robbery. . . . [He] told the
             detectives the man said something, maybe to him, but
             that it was just a few words and difficult to decipher

2
    State v. Henderson, 208 N.J. 208 (2011).
                                                                           A-0847-18T1
                                         9
            . . . . [The manager] was able to list all the items of
            clothes being worn by [defendant] and he described the
            gun in precise detail. . . . These descriptors demonstrate
            the level of attention that [he] exhibited at the crime
            scene. In his recorded statement, [he] stated that seeing
            [defendant] at the arrest scene "triggered his mind" and
            that he was sure that the suspect he saw commit the
            [robbery] was [defendant] . . . .

                   Based on these facts, and a weighing of the
            system variables and estimator variables[, defendant]
            has failed to prove that his motion to suppress the show-
            up identification would have been meritorious even if
            he was granted a Henderson hearing.

      Turning to defendant's claim that his attorney was ineffective by failing

to "investigate the reason he was at Wendy's" on the night in question, Judge

Covert stated:

            On June 24, 2016, trial counsel mailed a letter to
            [defendant] . . . explaining to him that his argument that
            he was at Wendy's, wearing the same clothes as the
            suspect and around the same time as the robbery, asking
            for free food and ran from the Wendy's because he had
            an outstanding warrant was "too coincidental." In
            addition, there was strong evidence to rebut this
            explanation. [Defendant] was arrested wearing the
            same clothes as the robbery suspect, he told troopers
            where to find the gun he used for the robbery, and [the
            manager] identified him at the scene of arrest.
            Furthermore, the jury would have heard that
            [defendant] had worked the night shift at the Wendy's,
            as recently as approximately two months before the
            robbery, and knew the closing procedures, that the back
            door would be propped open, the location of the back
            room of the restaurant and that there is a safe located in

                                                                         A-0847-18T1
                                       10
            that room. This is all evidence that weighed in favor of
            [defendant's] guilt and against his explanation for why
            he was at the Wendy's.

      Next, the judge categorically rejected defendant's assertion that his

attorney coerced him into pleading guilty, explaining:

                   Trial counsel was able to negotiate a plea that was
            beneficial to [defendant]. [Defendant] was extended
            term eligible for sentencing because of his past criminal
            history. Specifically, [defendant] had been sentenced
            for a previous first-degree robbery to ten years in state
            prison and he was on parole when this charge and
            conviction occurred.        Trial counsel was able to
            negotiate a fair deal . . . . Trial counsel reviewed the
            discovery and explained her reasoning to [defendant] as
            to why it was likely a jury would find him guilty. At
            his sentencing, [defendant] told the trial court that he
            was entering his plea freely, knowingly, and voluntarily
            and that he was satisfied with his counsel's
            representation.

                   Based on these facts and the facts surrounding the
            circumstances leading to [defendant's] conviction, he
            was not forced to plead guilty nor did trial counsel fail
            to fully investigate his case.

      On appeal, defendant makes the following arguments:

            THE PCR COURT MISAPPLIED THE LAW IN
            DENYING THE DEFENDANT'S PETITION FOR
            [PCR]  WITHOUT   AFFORDING   HIM  AN
            EVIDENTIARY HEARING TO FULLY ADDRESS
            THIS CONTENTION HE WAS PROVIDED WITH
            INADEQUATE ASSISTANCE OF COUNSEL.



                                                                         A-0847-18T1
                                       11
                  1.   THE SHOW-UP IDENTIFICATION
                  WAS IMPERMISSIBLY SUGGESTIVE
                  AND THERE WAS A SUBSTANTIAL
                  LIKELIHOOD OF AN IRREPARABLE
                  MISIDENTIFICATION.

                  2.   THE ARREST WAS UNLAWFUL
                  WHEN THE POLICE FAILED TO
                  ADMINISTER MIRANDA WARNINGS
                  TO THE DEFENDANT ADVISING HIM
                  OF HIS RIGHTS.

                  3.  DEFENDANT'S        ALLEGED
                  STATEMENT TO THE POLICE THAT
                  HE DROPPED THE GUN WHEN HE
                  FELL DOWN A HILL WHILE RUNNING
                  FROM THE POLICE SHOULD HAVE
                  BEEN SUPPRESSED AS IT WAS NOT
                  WITHIN  THE    PUBLIC   SAFETY
                  EXCEPTION TO THE MIRANDA
                  REQUIREMENT.

                  4.   DEFENDANT SHOULD HAVE
                  BEEN PERMITTED TO WITHDRAW
                  HIS PLEA BARGAIN TO CORRECT A
                  MANIFEST INJUSTICE.

We reject defendant's arguments and affirm substantially for the reasons

articulated in Judge Covert's comprehensive and well-reasoned written opinion.

We add only the following comments.

      A trial court should grant an evidentiary hearing only if the defendant has

presented a prima facie claim of IAC, material issues of disputed fact lie outside

the record, and resolution of those issues necessitates a hearing. R. 3:22-10(b);

                                                                          A-0847-18T1
                                       12
State v. Porter, 216 N.J. 343, 355 (2013). In deciding whether to grant an

evidentiary hearing, a PCR court "should view the facts in the light most

favorable to a defendant." State v. Preciose, 129 N.J. 451, 463 (1992). See also

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). In turn, we

review under the abuse of discretion standard the PCR court's determination to

proceed without an evidentiary hearing. State v. Marshall, 148 N.J. 89, 157

(1997). Additionally, where, as here, "no evidentiary hearing has been held, we

'may exercise de novo review over the factual inferences drawn from the

documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134,

146-47 (App. Div. 2010) (alteration in original) (quoting State v. Harris, 181

N.J. 391, 421 (2004)).     We also review de novo the PCR judge's legal

conclusions. Harris, 181 N.J. at 415-16 (citing Toll Bros., Inc. v. Twp. of W.

Windsor, 173 N.J. 502, 549 (2002)).

      To establish a prima facie claim of IAC, defendant must satisfy the two -

prong Strickland test: he must show that (l) "counsel's performance was

deficient" and he "made errors so serious that counsel was not functioning as the

'counsel' guaranteed . . . by the Sixth Amendment" to the United States

Constitution; and (2) "there is a reasonable probability that, but for counsel's

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


                                                                         A-0847-18T1
                                      13
Id. at 687, 694; see also Fritz, 105 N.J. at 52. A defendant "bears the burden of

proving" both prongs of an IAC claim "by a preponderance of the evidence."

State v. Gaitan, 209 N.J. 339, 350 (2012).

      Under the first Strickland prong, "a defendant must overcome a 'strong

presumption' that counsel exercised 'reasonable professional judgment' and

'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.

123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is

strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.

at 690, as measured by a standard of "reasonable competence." Fritz, 105 N.J.

at 53.   However, "'[r]easonable competence' does not require the best of

attorneys." State v. Davis, 116 N.J. 341, 351 (1989). Nonetheless, an attorney's

failure to investigate "is a serious deficiency that can result in the reversal of a

conviction." Porter, 216 N.J. at 353. Indeed, "counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary." Strickland, 466 U.S. at 691.

      Under the second Strickland prong, defendant must prove prejudice.

Fritz, 105 N.J. at 52. In order to establish the Strickland prejudice prong to set

aside a guilty plea based on IAC, a defendant must show "there is a reasonable

probability that, but for counsel's errors, [the defendant] would not have pled


                                                                            A-0847-18T1
                                        14
guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J.

434, 457 (1994) (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52,

59 (1985)). Moreover, "'a [defendant] must convince the court that a decision

to reject the plea bargain'" and "insist on going to trial" would have been

"'rational under the circumstances.'" State v. Maldon, 422 N.J. Super. 475, 486

(App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). That

determination should be "based on evidence, not speculation." Ibid.

      Applying these standards, we are satisfied defendant failed to make a

prima facie showing of IAC under the Strickland/Fritz test, and we discern no

abuse of discretion in the judge's denial of defendant's PCR petition without an

evidentiary hearing. As Judge Covert astutely pointed out, his attorney's letter

demonstrated her thoughtful consideration of the evidence, which was

overwhelming, as well as her evaluation of defendant's version of events, which

was illogical.    Further, neither a Henderson motion to challenge the

identification nor a Miranda motion to challenge the statements would have been

meritorious. "It is not ineffective assistance of counsel for defense counsel not

to file a meritless motion." State v. O'Neal, 190 N.J. 601, 619 (2007). Thus, a

decision to reject the plea bargain would not have been rational under the

circumstances.


                                                                         A-0847-18T1
                                      15
      Moreover, defendant failed to establish that he was entitled to withdraw

his plea under State v. Slater, 198 N.J. 145 (2009). 3 He lacks a credible claim

of innocence, and the State would undoubtedly suffer unfair prejudice given the

passage of time. See State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div.

2014) ("[A] defendant may fail on a motion to withdraw a plea under Slater,

because he or she lacks a colorable claim of innocence (factor one), and the State

would suffer prejudice (factor four) as a result of delay and witness

unavailability.").

      Affirmed.




3
   See Slater, 198 N.J. at 157-58 (establishing four factors trial courts must
"consider and balance . . . in evaluating motions to withdraw a guilty plea,"
namely, "(1) whether the defendant has asserted a colorable claim of innocence;
(2) the nature and strength of defendant's reasons for withdrawal; (3) the
existence of a plea bargain; and (4) whether withdrawal would result in unfair
prejudice to the State or unfair advantage to the accused.").
                                                                          A-0847-18T1
                                       16
