                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Alt hough 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-0503-17T2

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

STANLEY L. WILLIAMS,

     Defendant-Appellant.
___________________________

                    Submitted July 24, 2018 – Decided January 15, 2019

                    Before Judges Ostrer and Vernoia.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 12-12-
                    1090.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Robert C. Pierce, Designated Counsel;
                    William P. Welaj, on the brief)

                    Jennifer Webb-McRae, Cumberland County Prosecutor,
                    attorney for respondent (Andre R. Araujo, Assistant
                    Prosecutor, of counsel and on the brief).

           The opinion of the court was delivered by
OSTRER, J.A.D.

      Defendant Stanley L. Williams appeals from the denial of his petition for

post-conviction relief (PCR), without an evidentiary hearing. Pursuant to a plea

agreement, defendant pleaded guilty to: first-degree robbery, N.J.S.A. 2C:15-

1(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-

2(a) and N.J.S.A. 2C:15-1. He was sentenced to a thirteen-year custodial term

on the robbery charge, subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2, concurrent to five-year terms on the remaining counts.

      On appeal, defendant raises the following points for our consideration.

            POINT I

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION RELIEF SINCE HE FAILED
            TO     RECEIVE     ADEQUATE       LEGAL
            REPRESENTATION FROM TRIAL COUNSEL.

            POINT II

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION, IN
            PART, ON PROCEDURAL GROUNDS PURSUANT
            TO RULE 3:22-4.

      We review de novo a PCR court's factual findings and legal conclusions

made without an evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004).

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                                       2
In reviewing defendant's ineffective-assistance-of-counsel claims, we apply the

two-prong Strickland test, adopted in State v. Fritz, 105 N.J. 42 (1987).

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). We consider (1)

whether counsel's performance was constitutionally deficient, and (2) whether

defendant suffered resulting prejudice, that is, whether there is "reasonable

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

proceeding would have been different. Ibid. Applying that standard, we affirm.

                                       I.

      We discern the following facts from the State's official version of the

offense, defendant's allocution, and that of one of his co-defendants. On the

morning of July 22, 2011, defendant and three other men – David Green, Brian

Kent, and Edwin Sanchez – planned the robbery of a residence they believed

contained drugs and money.      That night, defendant and Green entered the

residence while Kent remained in the getaway car. Sanchez was not present,

although he was the plan's "mastermind," according to Kent and Green.

      Inside the home, a female resident woke to a loud noise. She investigated

and found two intruders trying to get into her son's room. Her son opened his

door. One of the intruders engaged in a scuffle with the woman, while the other,

brandishing a gun and speaking with a Jamaican accent, demanded money from


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                                       3
her son. The woman was struck in the head and received a large contusion. Her

son attempted to wrestle his intruder until a gunshot was fired causing the son

to retreat. The two intruders left with cash and marijuana.

      Defendant and the other three men were later apprehended. Kent entered

into a cooperation agreement with law enforcement for this incident and an

unrelated crime; he pleaded guilty to robbery and conspiracy to commit burglary

and robbery; and ultimately received a five-year NERA sentence. Green entered

into a plea agreement as well, and received a five-year NERA sentence. Sanchez

received a seventeen-year custodial term, though the record is not clear if this

followed a guilty plea or a trial.

      Kent and Green both provided statements to investigators. Green said that

he used a Jamaican accent during the robbery to disguise his identity. He also

said defendant fired the gun in the house. Kent said defendant provided the gun

for the robbery.

      During his plea hearing, defendant said he possessed the gun and

brandished it inside the residence in order to intimidate the occupants. He also

stated he reviewed his discovery with his attorney. At defendant's subsequent

sentencing proceeding, his attorney did not argue for a lesser sentence than the

one specified in the plea agreement.


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                                       4
      On direct appeal, we affirmed defendant's sentence as neither excessive

nor unduly punitive. State v. Williams, No. A-0282-15 (App. Div. March 9,

2016).

                                        II.

      Defendant contends his plea attorney provided ineffective assistance of

counsel by: (1) failing to review discovery that allegedly indicated that Green,

not he, discharged the weapon in the house they invaded; and (2) failing to

advocate for a sentence more lenient than defendant's plea agreement

contemplated, particularly in light of the sentences Kent and Green received.

Defendant also contends that his appellate attorney was ineffective by failing to

raise the issue of disparate sentencing before the ESOA panel.             We are

unpersuaded.

      Regarding the first point, defendant focuses on the female victim's

statement, provided in discovery, that the intruder with the Jamaican accent

discharged the weapon. Based on Green's statement that he used the accent,

defendant contends the victim's statement proved he did not discharge the

weapon. He argues his counsel should have used this information to obtain

dismissal of the charges, argue for a lesser sentence, or to negotiate a better plea

agreement.


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                                         5
      As to those contentions we need not reach the first prong of the Strickland

test, because defendant has failed to establish prejudice under the second prong.

See State v. Gaitan, 209 N.J. 339, 350 (2012) ("Although a demonstration of

prejudice constitutes the second part of the Strickland analysis, courts are

permitted leeway to choose to examine first whether a defendant has been

prejudiced, and if not, to dismiss the claim without determining whether

counsel's performance was constitutionally deficient."). A motion to dismiss the

charges would not have succeeded. Notwithstanding the victim's statement,

Green's assertion that defendant discharged the weapon, and Kent's statement

that defendant supplied the weapon used in the robbery, provided probable cause

for the weapons charges against defendant. It is not ineffective to withhold a

meritless motion. State v. O'Neal, 190 N.J. 601, 619 (2007). Nor is it reasonably

probable that reliance on the victim's statement would have secured a more

favorable plea agreement or sentence. The prosecutor was already aware of the

victim's statement.

      Moreover, in the context of a PCR petition challenging a guilty plea based

on the ineffective assistance of counsel, the second prong is established when

the defendant demonstrates a "reasonable probability that, but for counsel's

errors, [the defendant] would not have pled guilty and would have insisted on


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                                       6
going to trial," State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in

original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)), and that "a

decision to reject the plea bargain would have been rational under the

circumstances," Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Defendant fails

to make that showing here.

      Defendant's contentions regarding his sentence fare no better. He failed

to show a reasonable probability that his sentence would have been more

favorable had his counsel made the disparity argument at sentencing or on

appeal. Uniformity in sentencing is a major objective of the criminal justice

system. See State v. Roach, 146 N.J. 208, 231-32 (1996). Uniformity promotes

fairness and public confidence. Ibid. But not all divergent sentences are unfair

or unjust. Ibid. "The question therefore is whether the disparity is justifiable

or unjustifiable." Id. at 232-33. We consider whether the individuals receiving

the disparate sentences were similarly situated or not. See State v. Case, 220

N.J. 49, 63 (2014).

      In this case, defendant received a thirteen-year term of imprisonment

while Kent and Green both received five-year terms. However, defendant was

an older man, and had a more extensive criminal record than his co-defendants.

Williams was thirty-nine years old at the time of the offense. As an adult, he


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                                       7
had been arrested over twenty times, including six indictable offenses. He was

extended-term eligible.     See N.J.S.A. 2C:44-3.      By contrast, Kent had

cooperated with law enforcement. Green was twenty years old at the time of

conviction and had significantly less contact with the criminal justice system.

In light of these facts, Kent and Green were not similarly situated to defendant.

Notably, defendant received a shorter sentence than Sanchez.

      As we conclude defendant's argument lacks substantive merit, we need

not reach the question whether it was procedurally barred by Rule 3:22-4.

      Affirmed.




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