                                NOT FOR PUBLICATION WITHOUT THE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-1522-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LARRY D. WILSON, JR.,
a/k/a LARRY ROBINSON,
LARRY DARNELL WILSON,

     Defendant-Appellant.
_____________________________

                    Submitted February 11, 2019 – Decided February 22, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 12-09-2527.

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

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Kevin J. Hein, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Larry Wilson appeals from the April 7, 2017 Law Division

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

evidentiary hearing. We affirm.

      On November 8, 2011, the Camden police responded to a report of shots

fired. When the police arrived at the scene, they observed defendant and two

other men involved in a physical altercation. The men shouted that defendant

had a gun and had shot the victim, who was laying on the ground. The victim

was taken to the hospital, where he was pronounced dead as the result of multiple

gunshot wounds.

      Defendant told the police that he and his step-brother got into an

altercation with the victim and the victim's brother. He stated that the victim's

brother "swung" at him, causing defendant's step-brother to run away.

Defendant did not retreat but, instead, swung back. Defendant then drew a

handgun from his sweatshirt and fired two shots at the victim, killing him. After

the shooting, the victim's brother and the other man grabbed defendant. Only

defendant was armed.

      A Camden County grand jury subsequently charged defendant in a five-

count indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2)

(count one); second-degree possession of a weapon for an unlawful purpose,


                                                                         A-1522-17T4
                                       2
N.J.S.A. 2C:39-4 (count two); second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b) (count three); fourth-degree possession of a defaced

firearm, N.J.S.A. 2C:39-3(d) (count four); and second-degree certain persons

not to have weapons, N.J.S.A. 2C:39-7 (count five).

      After several conferences, defendant pled guilty to an amended charge

under count one of first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1). In return for defendant's plea, the State agreed to dismiss the other

counts of the indictment, and recommend that defendant be sentenced to a

maximum twenty-two-year prison term, subject to the 85% parole ineligibility

period required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The

judge later sentenced defendant in accordance with the terms of his negotiated

plea to a twenty-two year term, subject to NERA.

      Defendant appealed his sentence. We heard the appeal on our Excessive

Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed

defendant's sentence. State v. Wilson, No. A-5495-14 (App. Div. Jan. 12, 2016),

certif. denied, 225 N.J. 340 (2016).

      Defendant then filed a timely petition for PCR. In an amended petition,

defendant asserted that his attorney provided him with ineffective assistance

because he (1) "fail[ed] to put forward an intoxication defense"; (2) never


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                                       3
presented a "defense theory of 'self-defense'"; and (3) allowed defendant to be

sentenced for aggravated manslaughter even though he never admitted to

"recklessly caus[ing the victim's] death under circumstances manifesting

extreme indifference to human life" under N.J.S.A. 2C:11-4(a)(1).

      In a thorough written opinion, Judge Steven Polansky considered each of

these contentions and denied defendant's petition. The judge concluded that

defendant failed to satisfy the two-prong test of Strickland v. Washington, 466

U.S. 668, 687 (1984), which requires a showing that trial counsel's performance

was deficient and that, but for the deficient performance, the result would have

been different.

      Judge Polansky determined that defendant's first contention lacked merit

because he did not demonstrate any basis to support an intoxication defense. As

the judge noted, voluntary intoxication is only a defense if it negates an element

of the offense charged. N.J.S.A. 2C:2-8(a). "In order to negate an element of

the offense, the intoxication must be of an extremely high level." State v.

Bauman, 298 N.J. Super. 176, 194 (App. Div. 1997) (internal quotation marks

omitted); see also State v. Cameron, 104 N.J. 42, 54 (1986) (recognizing that

"firmly fixed in our case law is the requirement of 'prostration of faculties' as

the minimum requirement for an intoxication defense").         Thus, a voluntary


                                                                          A-1522-17T4
                                        4
intoxication defense can only succeed "if there exists a 'rational basis for the

conclusion that defendant's "faculties" were so "prostrated" that he or she was

incapable of forming' the requisite intent." Bauman, 298 N.J. Super. at 194

(quoting State v. Mauricio, 117 N.J. 402, 418-19 (1990)). "Among the factors

pertinent to this issue are included the quantity of intoxicant consumed, the

period of time involved, the defendant's ability to recall significant events and

his conduct as perceived by others." State v. Johnson, 309 N.J. Super. 237, 266

(App. Div. 1998).

       Here, Judge Polansky found there was insufficient evidence to support an

intoxication defense. In his amended petition, defendant only stated that he "was

drinking and smoking marijuana the day prior to the incident. This was in

combination with me taking Prozac, which I was prescribed due to having

asthma." (emphasis added). Thus, the judge found that defendant did not even

claim that he used any intoxicating substances on the day of the offense. In

addition, defendant "presented no evidence that the combination of marijuana,

alcohol, or Prozac had any intoxicating effect on him the following day when he

shot the victim." Because there was no basis for an intoxication defense under

these facts, the judge concluded that defendant's attorney was not ineffective by

failing to raise it.


                                                                         A-1522-17T4
                                       5
      Turning to defendant's second argument, Judge Polansky reached a similar

conclusion, finding that defendant did not supply sufficient grounds to support

a self-defense claim. Pursuant to N.J.S.A. 2C:3-4(a), "the use of force upon or

toward another person is justifiable when the actor reasonably believes that such

force is immediately necessary for the purpose of protecting himself against the

use of unlawful force by such other person on the present occasion." However,

the justification of self-defense is not available when a defendant uses "deadly

force,"1 unless the actor (1) "reasonably believes that such force is necessary to

protect himself against death or serious bodily harm"; (2) did not provoke the

use of force in the same encounter; and (3) cannot retreat or use non-deadly

force. N.J.S.A. 2C:3-4(b)(2)(b).

      Here, defendant used deadly force when he shot the victim twice.

According to his own statement to the police, defendant could have easily

retreated from the scene, just as his step-brother did. In addition, none of the

other participants in the altercation were armed. Due to the lack of any basis to

support a self-defense argument, Judge Polansky found that defendant's attorney




1
  N.J.A.C. 2C:3-11(b) defines "deadly force" as "force which the actor uses with
the purpose of causing or which he knows to create a substantial risk of causing
death or serious bodily harm."
                                                                          A-1522-17T4
                                        6
was not ineffective for declining to pursue this contention in lieu of assisting

defendant in negotiating a plea agreement to a lesser charge.

      Finally, Judge Polansky rejected defendant's contention that the factual

basis he gave at the time of the plea hearing was insufficient to support his

conviction for aggravated manslaughter under N.J.S.A. 2C:11-4(a). Under that

statute, a defendant is guilty of aggravated manslaughter when he or she

"recklessly causes death under circumstances manifesting extreme indifference

to human life[.]" See also State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.

2005) (stating that aggravated manslaughter requires a conscious disregard of

the probability of causing death).

      After reviewing the transcript of the plea hearing, the judge found that

defendant provided an ample factual basis supporting his guilt on the aggravated

manslaughter charge. Quoting at length from the transcript, the judge noted that

defendant admitted that he was reckless by firing a gun at the victim and that,

when he fired the shots, "it didn't matter to [defendant] what happened to the

individual who he shot[.]"    Therefore, Judge Polansky rejected defendant's

contention on this point. This appeal followed.

      On appeal, defendant raises the same three contentions he unsuccessfully

pursued in the Law Division. He argues:


                                                                        A-1522-17T4
                                       7
            POINT I

            THE [PCR] COURT ERRED IN DENYING . . .
            DEFENDANT'S PETITION FOR [PCR] WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT HE
            FAILED TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION FROM PLEA COUNSEL.

            A.     LEGAL PRINCIPLES.

            B.     FAILURE OF PLEA COUNSEL TO CONDUCT
                   AN ADEQUATE INVESTIGATION.

            C.     FAILURE TO RAISE THE ISSUE THAT
                   THERE WAS INSUFFICIENT PROOF TO
                   ESTABLISH AN ESSENTIAL ELEMENT OF
                   THE CRIME BEYOND A REASONABLE
                   DOUBT.

            D.     FAILURE OF PCR COURT TO CONDUCT AN
                   EVIDENTIARY HEARING.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

      The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

                                                                           A-1522-17T4
                                        8
that he [or she] was denied the effective assistance of counsel."       State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts

should grant evidentiary hearings and make a determination on the merits only

if the defendant has presented a prima facie claim of ineffective assistance.

Preciose, 129 N.J. at 462.

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, State v. Fritz, 105 N.J. 42, 52 (1987), the defendant must demonstrate

"how specific errors of counsel undermined the reliability" of the proceeding.

U.S. v. Cronic, 466 U.S. 648, 659 n.26 (1984).

      Moreover, such acts or omissions of counsel must amount to more than

mere tactical strategy. Strickland, 466 U.S. at 689. As the Supreme Court

observed in Strickland,

            [a] fair assessment of attorney performance requires
            that every effort be made to eliminate the distorting
            effects of hindsight, to reconstruct the circumstances of
            counsel's challenged conduct, and to evaluate the
            conduct from counsel's perspective at the time.
            Because of the difficulties inherent in making the
            evaluation, 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

                                                                        A-1522-17T4
                                       9
            the circumstances, the challenged action "might be
            considered sound trial strategy."

            [Strickland, 466 U.S. at 689 (quoting Michel v.
            Louisiana, 350 U.S. 91, 101 (1955)).]

      Having considered defendant's contentions in light of the record and the

applicable law, we affirm the denial of defendant's PCR petition substantially

for the reasons detailed at length in Judge Polansky's comprehensive written

opinion. In addition, because defendant failed to establish a prima facie case of

ineffective assistance of counsel, the judge was not required to conduct an

evidentiary hearing on defendant's PCR application. Preciose, 129 N.J. at 462.

      Affirmed.




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                                      10
