                                NOT FOR PUBLICATION WITHOUT THE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-2917-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAHEEN D. WILSON,
a/k/a RAHEEM WILSON,
and MARZETT WILSON,

          Defendant-Appellant.


                    Submitted February 4, 2020 - Decided March 11, 2020

                    Before Judges Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 13-04-0480.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Suzannah Brown, Designated Counsel, on
                    the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jennifer E. Kmieciak, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant Raheen Wilson appeals from the December 31, 2018 denial of

his petition for post-conviction relief (PCR), contending trial counsel was

ineffective regarding a motion to suppress evidence, and the PCR court

improperly denied his petition without an evidentiary hearing. We affirm.

      We derive the facts from the motion to suppress hearing and our prior

decision in the direct appeal. State v. Wilson, No. A-2318-14 (App. Div. Feb.

25, 2016).

      After a narcotics investigation and several days of surveillance, the

Trenton Police Department (TPD) obtained a search warrant for a residence in

Trenton and the arrest of defendant and Ernest Scott, Sr. The warrant authorized

the seizure of "controlled dangerous substances and/or associated paraphernalia"

and permitted its execution "by using force, if necessary, after knocking and

announcing your authority."

      A team of TPD and New Jersey State Police (NJSP) officers approached

the property to execute the warrant. NJSP Sergeant Kevin Walsh testified that

he opened the screen door, knocked on the main wood door, and announced he

was from the State Police and had a search warrant. There was no answer and

Walsh waited between ten and sixty seconds before telling another officer to

breach the door.


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                                       2
      The second officer used a battering ram to force the door open. Defendant

and Scott were apprehended on the first floor. As the NJSP moved from the

second to the third floor of the home, they deployed a flash-bang device.1 Walsh

explained that a flash-bang is used if the officers determine it is "tactically

needed to create a diversion . . . ." A third person was found and arrested on the

third floor. After the scene was secured, the TPD searched the home and

recovered marijuana, a handgun, hollow point bullets, and shotgun shells.

      On April 16, 2013, defendant and Scott were charged in an indictment

with fourth-degree controlled dangerous substance (CDS) possession, in

violation of N.J.S.A. 2C:35-10(a) (count one); third-degree CDS possession

with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(11),

2C:2-6 (count two); third-degree CDS possession with intent to distribute in a

school zone, in violation of N.J.S.A. 2C:35-7, 2C:35-5(a)(1), 2C:2-6 (count

three); third-degree use of a fortified premises, in violation of N.J.S.A. 2C:35-

4.1(c), 2C:2-6 (count four); fourth-degree maintaining a narcotic nuisance, in

violation of N.J.S.A. 24:21-21(a)(6), 2C:2-6 (count five); second-degree



1
   "A flash-bang has been described as a 'device that emits an intensely bright
flash and a percussive, loud blast of sound.'" Wilson, slip op. at 3 n.2 (quoting
State v. Rockford, 213 N.J. 424, 454 (2013) (LaVecchia, J., dissenting)). The
TPD's report stated the flash-bang device was deployed in the third-floor attic.
                                                                          A-2917-18T4
                                        3
possession of a firearm during the commission of a CDS offense, in violation of

N.J.S.A. 2C:39-4.1(a) (count six); and second-degree certain persons not to

possess weapons, in violation of N.J.S.A. 2C:39-7(b) (count seven).

      Scott moved to suppress the evidence seized during the search,

challenging the manner of execution of the warrant. Defendant joined in the

motion. Defense counsel argued that Walsh had not waited a sufficient amount

of time after knocking and announcing his presence and forcing entry into the

residence.

      The motion judge denied the motion to suppress, finding Walsh's

testimony credible and that he knocked and announced the officers' presence.

Thereafter, defendant pleaded guilty to count two and was sentenced to time

served.

      On direct appeal, defendant argued (1) the trial court did not address

whether the length of time the officers waited before forced entry was

reasonable, and (2) the trial court did not address the use of the flash-bang

device. Wilson, slip op. at 4.

      We affirmed the denial of defendant’s motion to suppress. Id. at 1. We

found "[d]efendant's claim that the officers did not wait a reasonable period

before the forced entry is untethered to any record evidence, and he has failed


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                                      4
to show that the execution of the search warrant was in any way unreasonable. "

Id. at 4. As to the second argument, this court declined to consider it because

defense counsel had not raised any issue regarding the flash-bang device during

the suppression hearing. Therefore, it was inappropriate to consider it for the

first time on appeal. Id. at 4-6.

      Defendant filed a pro se PCR petition and supplemental brief. In his pro

se brief, defendant asserted trial counsel was ineffective for (1) failing to elicit

testimony regarding the length of time before law enforcement forced entry into

the residence and (2) failing to challenge the use of the flash-bang device.2

      PCR counsel was assigned and filed a brief in support of defendant’s

petition. In the brief, PCR counsel argued trial counsel failed to elicit testimony

regarding the length of time before law enforcement forced entry into the

residence, and that the length of time officers waited before entering the

residence was unreasonable.

      PCR counsel further asserted trial counsel failed to challenge the use of

the flash-bang device. Counsel argued the use of a flash-bang device was not

justified by the circumstances in the case, given the lack of evidence that the


2
   Defendant asserted a number of additional grounds for PCR, which were
considered and rejected by the PCR judge. The denial of those additional claims
has not been challenged on appeal.
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                                         5
targets were armed or had access to weapons, or that loss of evidence, person al

injury or property damage was a concern. PCR counsel asserted the motion to

suppress would have been granted if trial counsel brought these facts to light

during the motion and challenged the use of the device.

      After oral argument, the PCR court denied the petition in a comprehensive

nineteen-page written decision.

      In addressing defendant’s challenge to the officers' entry into the

residence and the trial court's findings, the PCR court found the argument was

procedurally barred because this court "expressly considered" and rejected

defendant's argument that the officers failed to knock and announce their

presence before they entered the home.

      The PCR court further found "[t]he record of the suppression hearing also

belies [d]efendant’s claim of ineffective assistance," noting trial counsel

"vigorously cross[-]examined the officers and challenged the reasonableness of

their entry."

      In addition, the PCR court observed the record also established that

defense counsel "argued vigorously" to the motion judge that the police had not

waited a reasonable amount of time after knocking and announcing before the

forced entry. Furthermore, the PCR court found there was ample evidence in


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                                       6
the record to establish that ten to sixty seconds was a reasonable amount of time

to wait before entry. Therefore, any deficiency on the part of trial counsel would

not have changed the outcome of the suppression motion.

      The PCR court also rejected the claim that trial counsel was ineffective

for failing to challenge the use of the flash-bang device. In quoting Rockford,

213 N.J. at 432, the PCR court stated there was no "bright-line rule that would

preclude the use of a flash-bang device in the execution of a knock-and-

announce warrant absent unanticipated exigent circumstances." After analyzing

the Rockford factors, the PCR court found the deployment of the flash-bang

device was reasonable.

      The PCR court remarked that

            Defense [c]ounsel's performance was constitutionally
            sound. The record indicates that [d]efense [c]ounsel's
            strategy in both his brief and oral argument was to
            challenge the reasonableness of the "knock and
            announce." . . . Defense [c]ounsel cross-examined the
            State's witnesses and argued vigorously that the officers
            failed to announce their presence in a manner that was
            consistent with the dictates of the Fourth Amendment.
            . . . Defense [c]ounsel questioned Sergeant Walsh about
            the flashbang deployment, but he chose to focus his
            defense strategy on a much more viable area – the
            reasonableness of the "knock and announce."

      Furthermore, the PCR court held that, even if trial counsel had contested

the use of the flash-bang device, the evidence found incident to the authorized

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                                        7
warrant would have been found anyway under the inevitable discovery doctrine.

Because the evidence was recovered independently by the TPD after the NJSP

deployed the flash-bang device, it would have been discovered regardless of the

deployment of the device. The flash-bang device did not play any role in the

entry of the residence because the NJSP used the device between the second and

third floors to secure the scene and apprehend the individual on the third floor.

      The PCR court also considered and rejected defendant's additional

ineffective assistance claims in his pro se petition and brief because they were

"bald assertions that are devoid of competent evidentiary support." (citing State

v. Fritz, 105 N.J. 42, 64-65 (1987)).       The court noted defendant failed to

"articulate the specific actions that [trial counsel] should have taken or the

probable impact of those actions on his decision to plead guilty."

      On appeal, defendant presents the following issue:

            THE PCR COURT ERRED IN FAILING TO HOLD
            AN EVIDENTIARY HEARING ON MR. WILSON'S
            CLAIM THAT TRIAL COUNSEL PROVIDED HIM
            WITH INEFFECTIVE ASSISTANCE OF COUNSEL
            IN CONNECTION WITH THE MOTION TO
            SUPPRESS EVIDENCE

      Specifically, defendant argues the PCR court erred in finding (1) the issue

of whether the officers waited a reasonable time before entering the residence

was determined on direct appeal; and (2) that even if counsel had contested the

                                                                          A-2917-18T4
                                        8
necessity of the flash-bang device, its use was objectively reasonable.

Defendant also challenges the PCR court's finding that the evidence seized

pursuant to the search would have been discovered under the inevitable

discovery doctrine.

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984) and adopted by the New Jersey

Supreme Court in Fritz, 105 N.J. at 58. In order to prevail on a claim of

ineffective assistance of counsel, defendant must meet the two-pronged test

establishing both that: 1) counsel's performance was deficient and he or she

made errors that were so egregious that counsel was not functioning effectively

as guaranteed by the Sixth Amendment to the United States Constitution; and 2)

the defect in performance prejudiced defendant's rights to a fair trial such that

there exists a "reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Strickland, 466

U.S. at 687, 694.

      There is no merit to defendant's argument that trial counsel failed to elicit

testimony regarding the reasonable time officers waited before entering the

residence. The "reasonableness" issue was considered and determined on direct


                                                                           A-2917-18T4
                                        9
appeal. There, we stated there was no evidence to support defendant's argument

that the officers did not wait a reasonable time before the forced entry.

Furthermore, we concluded defendant had not demonstrated the "execution of

the search warrant was in any way unreasonable."          Wilson, slip op. at 4.

Therefore, this issue cannot be raised in a PCR petition. See R. 3:22-5.

      We are also unpersuaded by defendant's assertion that trial counsel was

ineffective for failing to contest the use of the flash-bang device. The PCR court

considered the pertinent case law regarding the use of the device and found its

use was reasonable under all of the circumstances.

      Moreover, the use of the device did not uncover any evidence. It was used

to secure the scene for the TPD and apprehend the person on the third floor. The

TPD then conducted an independent search of the premises pursuant to the

search warrant during which evidence was seized. Therefore, the evidence

would have been discovered and seized whether the flash-bang device was used

or not.

      We are satisfied the PCR court's denial of the petition was supported by

the credible evidence in the record. Defendant did not demonstrate trial counsel

was ineffective under the Strickland-Fritz test, and therefore, he was not entitled

to an evidentiary hearing.


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                                       10
Affirmed.




                 A-2917-18T4
            11
