                                NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3538-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMAR HOLMES, a/k/a
JAMAR F. WILSON, and
KEVIN WILSON,

     Defendant-Appellant.
_________________________

                    Submitted August 28, 2019 – Decided September 25, 2019

                    Before Judges Alvarez and Gooden Brown.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 11-08-1515.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Karen A. Lodeserto, Designated Counsel, on
                    the brief).

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

      Defendant Jamar Holmes appeals from the January 10, 2018 Law Division

order denying his petition for post-conviction relief (PCR) following an

evidentiary hearing. Having considered the arguments and applicable law, we

affirm.

      Following a jury trial, defendant was convicted of murder and weapons

offenses, stemming from defendant's fatal stabbing of the victim in a liquor

store, equipped with video surveillance.1 Prior to the stabbing, defendant and

the victim had been drinking and smoking marijuana most of the day at the home

of a mutual friend, S.H. After appropriate mergers, defendant was sentenced to

fifty-five years' imprisonment, subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. In his direct appeal, we affirmed the convictions, but

remanded for resentencing. State v. Holmes, No. A-0680-13 (App. Div. Mar. 2,

2015), certif. denied, 222 N.J. 16 (2015).       At the re-sentencing hearing,

defendant was sentenced to forty years' imprisonment, subject to NERA.

      Defendant filed a timely petition for PCR, asserting ineffective assistance

of trial counsel, among other things. In his supporting certification, focusing on



1
  The surveillance footage depicting the stabbing was played repeatedly for the
jury at trial.
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                                        2
his third attorney, Ritchie Roberts, retained approximately one month prior to

trial, defendant averred that Roberts misinformed him about his sentencing

exposure and the admissibility of an exculpatory statement he made to S.H. the

day after the fatal stabbing, resulting in his inability to fairly assess the plea

offer. Specifically, according to defendant, Roberts advised him that if he "was

convicted at trial, [he] should expect a sentence of [thirty] years with [eighty-

five percent] parole ineligibility[,]" and that his statement to S.H.,

"demonstrat[ing] that [he] did not act purposely or knowingly when [he] stabbed

[the victim,]" would be admitted at trial to support "[his] intoxication defense." 2

Defendant continued that had he "known that [he] was exposed to a custodial




2
   After the stabbing, defendant purportedly received a phone call from S.H.,
advising him that the victim had died, to which defendant replied that he thought
he had just "hit him" or had "[j]ust poked him[.]" Prior to trial, the trial court
excluded the statement, ruling that it did not qualify as a statement against
interest under N.J.R.E. 803(c)(25). In his direct appeal, while we disagreed with
the court's reasoning, we determined that "the statement was 'wholly
exculpatory' and properly excluded, since 'a self-serving statement made after
the commission of a crime provides too much opportunity for contrivance to
warrant admission.'" Holmes, slip op at 9-10 (quoting State v. Gomez, 246 N.J.
Super. 209, 215-16 (App. Div. 1991)). Nonetheless, we concluded that although
the jury did not hear the statement, "which theoretically would have supported
a finding of guilt on a lesser offense," because the jury "rejected the intoxication
defense[,]" "the exclusion of the statement from the jury's consideration was not
error[,]" but rather "inconsequential." Id. slip op. 11-12.
                                                                            A-3538-17T2
                                         3
sentence of [fifty-five] years or even [forty] years," he would have accepted "the

[twenty-five] year plea bargain offered by the State" and "pled guilty."

      The PCR court conducted "a limited evidentiary hearing to determine

whether defendant's rejection of the plea offer was made knowingly and

voluntarily." Although Roberts "was [un]available to testify at the evidentiary

hearing," the court heard testimony from defendant and his two prior attorneys,

Sterling Kinsale and William Strauss, both of whom were presented by the State.

Following the hearing, the court found all three witnesses "credible" "based on

the [c]ourt's opportunity to hear and see the witnesses."

      As to Kinsale's testimony, the court made the following factual findings:

            Mr. Kinsale is employed by the Office of the Public
            Defender, Trial Division, where he has been employed
            for [twenty-eight] years. Mr. Kinsale has worked
            exclusively in the homicide unit for the past [eleven]
            years. Mr. Kinsale testified that he was assigned to
            defend [defendant] . . . . He further testified that during
            the course of his representation, he was able to discuss
            the possibility of a plea agreement with both the State
            and defendant. Mr. Kinsale testified that he discussed
            defendant's exposure, including the plea offer and the
            minimum and maximum exposure after conviction that
            defendant was facing. Mr. Kinsale testified that he
            approached the State with a lower offer, which was not
            accepted. After discussing the offer for [twenty-five]
            years of imprisonment, defendant informed Mr. Kinsale
            that he would like to speak with another attorney. Mr.
            Kinsale testified that he believed defendant understood
            the conversations that he had regarding his exposure.

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                                        4
            At that time, the case was reassigned to Bill Strauss
            within the Office of the Public Defender.

      After hearing Strauss' testimony, the court made the following factual
findings:

            Mr. Strauss is employed by the Office of the Public
            Defender, where he has worked for [twenty-eight]
            years. Mr. Strauss testified that between October and
            November of 2012 he was assigned to defend
            [defendant]. Mr. Strauss met with defendant to explain
            the plea offer at some point within that time period. Mr.
            Strauss testified that defendant appeared to understand
            the plea offer, and they additionally discussed the
            evidence against defendant. Defendant received a copy
            of the discovery at that time from Mr. Strauss. Mr.
            Strauss also testified that in every case he is assigned
            to, he fills out a form with defendant regarding
            defendant's exposure, and although he was not able to
            locate that form before this hearing, Mr. Strauss
            believed that he and defendant went through the same
            steps he would have with any other trial. Finally, Mr.
            Strauss testified that during the course of his
            representation of defendant, the plea offer was [twenty-
            five] years incarceration, but he had attempted to obtain
            a better offer for his client.

      Finally, the court made the following factual findings regarding

defendant's testimony:

            Defendant testified that both Mr. Kinsale and Mr.
            Strauss discussed the plea offer with him, but he
            ultimately decided to go to trial with Richard Roberts.
            Defendant further testified that Mr. Roberts
            communicated to him that his exposure was limited to
            [thirty] years incarceration, and that if they were to go
            to trial, [S.H.] would be permitted to testify regarding a

                                                                         A-3538-17T2
                                        5
            conversation he had with defendant the day following
            the murder.[3] Defendant believed that this statement
            supported his testimony at trial that he had no
            recollection of the murder and was surprised to learn
            that the victim had died. Defendant testified that Mr.
            Roberts went on vacation for two weeks before trial
            commenced and defendant did not have an opportunity
            to give him the complete discovery. Defendant testified
            that had he known that he would only have one meeting
            with Mr. Roberts before trial commenced, he would
            have accepted the plea offer. On [c]ross[-]examination,
            defendant testified that he had discussed with both Mr.
            Kinsale and Mr. Strauss the plea agreement and his
            maximum exposure. [4]          Additionally, defendant
            testified that at trial, he took the stand in his own
            defense and testified that he was intoxicated at the time
            of the murder, had no recollection of the murder and
            was surprised that the victim died.           Defendant
            understood that the phone call conversation from the
            day after was ruled inadmissible at trial.

      In a January 10, 2018 written decision, the court rejected defendant's

numerous contentions and denied relief. 5 After applying the applicable legal


3
   Indeed, on cross-examination, defendant acknowledged that both Strauss and
Kinsale had also assured him that his statement to S.H. would be admitted at
trial.
4
  Defendant admitted knowing that his maximum sentencing exposure was life
imprisonment.
5
  Specifically, in addition to rejecting defendant's claims that his trial counsel
failed to provide accurate information regarding his penal exposure and the
admission of his statement to S.H., the court rejected defendant's claims that he
was denied effective assistance of counsel because trial counsel "was


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                                        6
principles, the court concluded defendant "failed to make out a prima facie case"

of ineffective assistance of trial counsel to meet the two-pronged test set forth

in Strickland v. Washington, 466 U.S. 668 (1984), which was later adopted by

the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). The

court expressly rejected defendant's claim that "he would have accepted the plea

offer" had he "known the true extent of his [penal] exposure" or that his

statement to S.H. would have been excluded. As to the former, defendant

admitted knowing that his maximum sentencing exposure was life imprisonment

based on the advice of his previous attorneys. As to the latter, relying on our

decision in the direct appeal, the court explained that because the jury "rejected"

defendant's intoxication defense, rendering the exclusion of the statement

"inconsequential," defendant could neither establish that Roberts' "performance

fell below the practice and expectations of the legal community[,]" nor satisfy

the prejudice prong of the Strickland/Fritz test.          The court entered a

memorializing order and this appeal followed.




unprepared for trial;" "failed to engage or consult a forensic expert to help
present an intoxication defense;" and "failed to engage a forensic pathologist to
review the medical examiner's findings on the cause of death[.]" Defendant
abandoned these latter contentions on appeal.
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                                        7
      On appeal, defendant raises the following single point for our

consideration:

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S     PETITION    FOR    POST-
            CONVICTION RELIEF BECAUSE DEFENDANT
            ESTABLISHED TRIAL COUNSEL MISADVISED
            HIM REGARDING HIS SENTENCE EXPOSURE
            AND   MISLED    HIM    REGARDING   S.H.'S
            STATEMENT        BEING     ADMISS[I]BLE;
            THEREFORE, THE MATTER SHOULD BE
            REMANDED       BECAUSE       ADDITIONAL
            TESTIMONY IS NEEDED FROM [ROBERTS].

      "In reviewing a PCR court's factual findings based on live testimony, an

appellate court applies a deferential standard[.]" State v. Pierre, 223 N.J. 560,

576 (2015). Thus, we "will uphold the PCR court's findings that are supported

by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540

(2013) (citing State v. Harris, 181 N.J. 391, 415 (2004)). A "PCR court's

interpretation of the law," however, is afforded no deference, and is "reviewed

de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415-16). "[F]or mixed

questions of law and fact," we "give deference . . . to the supported factual

findings of the trial court, but review de novo the lower court's application of

any legal rules to such factual findings." Harris, 181 N.J. at 416 (citing State v.

Marshall, 148 N.J. 89, 185 (1997)).



                                                                           A-3538-17T2
                                        8
      To support a claim of ineffective assistance of counsel, a defendant "must

prove, by a preponderance of the evidence, that (1) counsel performed

deficiently, and made errors so serious that he or she was not functioning as

counsel guaranteed by the Sixth Amendment; and (2) defendant suffered

prejudice as a result." State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013)

(citing Strickland, 466 U.S. at 687; State v. Preciose, 129 N.J. 451, 459 (1992)

(reciting preponderance of the evidence standard of proof)). See also Fritz, 105

N.J. at 58.       These principles extend to a criminal defense attorney's

representation of an accused in connection with "the plea-bargaining process."

Lafler v. Cooper, 566 U.S. 156, 162-63 (2012).

      To satisfy the first 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). "No particular set of

detailed rules for counsel's conduct can satisfactorily take account of the variety

of circumstances faced by defense counsel or the range of legitimate decisions

regarding how best to represent a criminal defendant." Strickland, 466 U.S. at

688-89. "[I]f counsel makes a thorough investigation of the law and facts and

considers   all    likely   options,   counsel's   trial   strategy   is   'virtually


                                                                             A-3538-17T2
                                         9
unchallengeable.'" State v. Chew, 179 N.J. 186, 217 (2004) (quoting Strickland,

466 U.S. at 690-91).

      For that reason,

            an otherwise valid conviction will not be overturned
            merely because the defendant is dissatisfied with his or
            her counsel's exercise of judgment during the trial. The
            quality of counsel's performance cannot be fairly
            assessed by focusing on a handful of issues while
            ignoring the totality of counsel's performance in the
            context of the State's evidence of defendant's guilt. As
            a general rule, strategic miscalculations or trial
            mistakes are insufficient to warrant reversal except in
            those rare instances where they are of such magnitude
            as to thwart the fundamental guarantee of a fair trial.

            [State v. Castagna, 187 N.J. 293, 314-15 (2006)
            (citations, internal quotation marks, and alterations
            omitted).]

Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential."

Strickland, 466 U.S. at 689.

      As to the second prong, "[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment." Id. at 691. Thus,

Strickland's second prong "is satisfied by a defendant's showing that 'there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different.'" Castagna, 187 N.J. at 315 (quoting


                                                                           A-3538-17T2
                                       10
Strickland, 466 U.S. at 694). This prong "is an exacting standard" and "'[t]he

error committed must be so serious as to undermine the court's confidence in the

jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008)

(quoting Castagna, 187 N.J. at 315) (alteration in original).

      Applying these principles, we are satisfied defendant failed to present

competent evidence satisfying either Strickland prong. The advice regarding

the admission of defendant's statement to S.H. can hardly be characterized as

professionally unreasonable, given the fact that defendant's prior attorneys, both

experienced criminal defense attorneys, gave the same advice. "[S]trategic

miscalculations or trial mistakes are insufficient to warrant reversal except in

those rare instances where they are of such magnitude as to thwart the

fundamental guarantee of a fair trial[,]" which is not the case here. Castagna,

187 N.J. at 315 (citations, internal quotation marks, and alterations omitted).

      Like the PCR court, we also reject defendant's contention that he was

denied effective assistance of counsel based on Roberts "misleading him

regarding his sentence exposure." Because he claims he would have accepted

the plea offer absent Roberts' advice, defendant posits "this matter must be

remanded for an evidentiary hearing with testimony taken from [Roberts] as he

was the attorney who misled [him.]" However, defendant's concession that he


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                                       11
was advised by his prior attorneys that his exposure extended to life

imprisonment, as well as his acknowledgement that he rejected a twenty-five

year plea offer from the State, undermine his claim.

      Even if Roberts misinformed defendant that his exposure was thirty years'

imprisonment, defendant nonetheless failed to satisfy the second prong of the

Strickland test because he rejected a twenty-five year plea offer and took the

risk of going to trial with actual knowledge that his maximum sentencing

exposure was life imprisonment. Cf. State v. Taccetta, 200 N.J. 183, 193-94,

198 (2009) (rejecting the defendant's ineffective assistance of counsel claim that

he "could have entered a guilty plea to the purported plea offer if correctly

advised [by his attorney] concerning the sentencing consequences" because to

do so defendant would have "commit[ted] perjury in giving a factual basis for a

crime he insist[ed] he did not commit[,]" a practice "antithetical to our court

rules, case law, and the administration of justice").

      Affirmed.




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                                       12
