                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-4745-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TYREEN H. WALKER, a/k/a
TYRENE WALKER,

     Defendant-Appellant.
____________________________

              Submitted July 3, 2018 – Decided August 14, 2018

              Before Judges O'Connor and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 10-12-0754.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lee March Grayson, Designated
              Counsel, on the brief).

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Kim L.
              Barfield, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant Tyreen H. Walker appeals from the denial of his

petition for post-conviction relief (PCR), arguing:

          POINT I

          THE PCR COURT ERRED IN DENYING THE DEFENDANT'S
          PETITION FOR POST-CONVICTION RELIEF WITHOUT
          AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY
          ADDRESS HIS CONTENTION THAT DEFENSE COUNSEL
          IN THE TRIAL COURT FAILED TO ADEQUATELY
          EXPLAIN   THE   RAMIFICATIONS   OF  THE   PLEA
          AGREEMENT, WHICH SUBJECTED HIM TO PAROLE
          SUPERVISION FOR LIFE.

          POINT II

          THE PCR COURT ERRED IN FINDING THAT THE
          IMPOSITION OF A SPECIAL SENTENCE OF PAROLE
          SUPERVISION FOR LIFE [PSL] ON THE DEFENDANT
          WAS NOT UNCONSTITUTIONAL.

We are unpersuaded by either argument and affirm.

     Absent an evidentiary hearing, our review of the facts found

and the factual inferences drawn by the PCR court from the record

is de novo.   State v. Blake, 444 N.J. Super. 285, 294 (App. Div.).

Likewise, we review de novo the PCR court's legal conclusions.

Ibid.

     To establish a PCR claim of ineffective assistance of counsel,

a defendant must satisfy the test formulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987), by showing "that

counsel made errors so serious that counsel was not functioning

as the 'counsel' guaranteed . . . by the Sixth Amendment,"    Fritz,

                                 2                           A-4745-15T2
105 N.J. at 52 (quoting Strickland, 466 U.S. at 687), and by

proving     he    suffered         prejudice       due     to    counsel's       deficient

performance, Strickland, 466 U.S. at 687, 691-92.                         Defendant must

show by a "reasonable probability" that the deficient performance

affected the outcome.              Fritz, 105 N.J. at 58.               In cases such as

this,    following      the    entry    of    a    guilty       plea,    defendant      must

establish       there   was    a    reasonable          probability      that,    but    for

counsel's errors, he would have rejected the plea offer and gone

to trial.       State v. DiFrisco, 137 N.J. 434, 457 (1994); see also

State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014)

(holding a defendant "must convince the court that a decision to

reject    the    plea   bargain       would       have    been    rational    under      the

circumstances" (quoting Padilla v. Kentucky, 559 U.S. 356, 372

(2010))).

     During       the   plea       colloquy       the    assistant       prosecutor,      in

defendant's presence, recited the plea offer:

            It was in exchange for a [g]uilty [p]lea to
            [c]ount 1 of the [i]ndictment, as charged,
            second-degree   sexual  assault[,  N.J.S.A.
            2C:14-2(c)(4)].

                 The State would recommend, I think, to a
            second-degree, but treating it as a third-
            degree for sentencing purposes. That we would
            recommend a four-year [s]tate [p]rison term,
            with Megan's Law, parole supervision for life,




                                              3                                    A-4745-15T2
            and [an evaluation at the Adult Diagnostic and
            Treatment Center].[1]

Defense counsel confirmed that those were the accepted terms,

adding, "I've spoken with [defendant].     He understands he has a

right to a trial; but, he understands this to be in his best

interest, and we are prepared to proceed at this point." Defendant

later acknowledged under oath that the agreement was in his best

interest.

     Defendant was sworn and, after indicating he understood that

he was waiving a plethora of rights individually recited by Judge

Benjamin C. Telsey, admitted he had an opportunity to review the

plea forms with his counsel; his counsel was available to answer

any questions about the forms; the circled answers were defendant's

truthful responses to the posed questions; and he signed and

initialed the forms.     The plea forms explain in detail, in five

sub-questions, the ramifications of PSL; defendant answered yes

to each question asking if he understood those details.        After

denying that he was under the influence of "any drugs, medication,

alcohol, or anything else that would affect [his] ability to

understand [what was] going on" during the plea, defendant stated

he heard the terms of the recommended sentence that were placed


1
  The plea agreement provided that count two of the indictment
charging second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1),
would be dismissed.

                                  4                          A-4745-15T2
on the record.   He understood he was to receive a four-year "flat"

sentence and repeatedly denied having any questions about the

sentence.

     Judge Telsey continued his thorough review of the plea terms,

engaging defendant in the following PSL-related colloquy:

            THE COURT: Do you . . . understand that you'll
            be subject to parole supervision for life?

            THE DEFENDANT: Yes.

            THE COURT: Which means that you'll be
            supervised by parole for at least 15 years,
            as if you were on parole?

            THE DEFENDANT: Yes.

            THE COURT: And that could be very strict
            conditions as part of that supervision.

            THE DEFENDANT: Yes.

            THE COURT: Do you understand if you violate a
            condition of parole supervision for life, you
            could be -- your parole could be revoked and
            you could be sentenced to prison for 12 to 18
            months for each revocation?

            THE DEFENDANT: Yes.

            THE COURT: And, that if you violate a
            condition of parole supervision for life, and
            you're indicted and convicted, you could
            receive a sentence of up to 18 months?

            THE DEFENDANT: Yes.

     Defendant's    counsel,   at   the   conclusion   of   the   judge's

questioning, asked defendant, "All the things the [j]udge just

discussed with you, you and I went over in detail, did we not?"


                                    5                             A-4745-15T2
Defendant answered, "Yes."         Counsel continued, "You understand

everything?"        Defendant answered affirmatively and denied having

any questions for counsel, confirming his answer to the same

question in the plea form.

     Defendant's ineffective assistance of counsel contentions

that:   he    had   significant   cognitive   deficiencies;   he   did   not

understand that he was pleading to a second-degree sexual assault,

to be treated as a third-degree crime for purposes of sentencing

– not third-degree endangering the welfare of a child; and his

counsel did not explain the ramifications of PSL are belied by the

record.      Notwithstanding his contention that the Adult Diagnostic

and Treatment Center's pre-sentence evaluation may corroborate

that his cognitive difficulties impacted his ability to understand

the plea agreement, he gave no indication he had any difficulty

understanding the plea forms, Judge Telsey's questions, or the

terms of the agreement, including PSL.           Defendant's bald-faced

assertions do not establish a prima facie case of ineffective

assistance of counsel.        See State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999).

     Nor do these assertions establish grounds for an evidentiary

hearing which should be held only if a defendant presents "a prima

facie case in support of post-conviction relief."         R. 3:22-10(b);

State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish

                                      6                            A-4745-15T2
a prima facie case, defendant must demonstrate "the reasonable

likelihood of succeeding under the test set forth in Strickland

v. Washington, 466 U.S. 668, 694 (1984)."            Preciose, 129 N.J. at

463.    Merely raising a claim for post-conviction relief does not

entitle a defendant to an evidentiary hearing.          Cummings, 321 N.J.

Super. at 170.      Contradicting his prior sworn statements without

explanation do not create a genuine issue of fact warranting an

evidentiary hearing.     Blake, 444 N.J. Super. at 299.

       Post-conviction    relief     applications      are   not   fishing

expeditions.      State v. Marshall, 148 N.J. 89, 270 (1997) (noting

"that PCR 'is not a device for investigating possible claims, but

a   means   for   vindicating    actual   claims'"    (quoting   People    v.

Gonzales, 800 P.2d 1159, 1206 (Cal. 1990))).            Defendant may not

utilize an evidentiary hearing to explore his bald-faced PCR

claims.     See id. at 157-58.

       The record supports Judge Telsey's finding at the conclusion

of the plea hearing that defendant answered the questions on the

plea form after reviewing same with his counsel and voluntarily

entered into the plea agreement with full understanding of the

sentence and the PSL requirements.

       We further determine there is no reasonable probability that,

but for counsel's errors, defendant would have rejected the plea

offer and gone to trial.           He freely admitted he had sexual

                                     7                              A-4745-15T2
intercourse with a fifteen year-old when he was nineteen, a second-

degree crime for which defendant faced a maximum ten-year State

prison term.    Inasmuch as defendant's belief that the victim was

eighteen was not a viable defense, N.J.S.A. 2C:14-5(c),2 it is not

reasonably    probable    that   he    would   have    rejected    a    four-year

sentence and gone to trial. As we noted, he admitted the agreement

was in his best interest.

     Judge    Robert     G.   Malestein     correctly    denied     defendant's

petition.

     We     determine     defendant's       argument    that      PSL    "is     an

unconstitutional    violation     of    the    Due   Process   Clause     of   the

Fourteenth Amendment to the United States Constitution, and due

process and fundamental fairness doctrine inherent in the New

Jersey Constitution," equating PSL with a continued "custodial

sentence, despite having been granted the benefit of parole" to

be without sufficient merit to warrant discussion in this written

opinion. R. 2:11-3(e)(2). We add only the following observations.

     Defendant argues:        "By treating all PSL infractions as parole

violations instead of crimes, which must be proven beyond a

reasonable doubt, . . . he is being denied due process . . . and


2
  The statute provides: "It shall be no defense to a prosecution
for a crime under this chapter that the actor believed the victim
to be above the age stated for the offense, even if such a mistaken
belief was reasonable."

                                        8                                 A-4745-15T2
. . . the fundamental fairness doctrine has been violated"; and

"[t]he loss of liberty resulting from a parole revocation has been

construed 'as a serious deprivation that requires due process.'"

We agree with Judge Malestein's well-written opinion that those

issues are not ripe for constitutional review because defendant

has not been charged with a PSL violation. We also note a defendant

charged with a criminal offense for violating a PSL condition,

N.J.S.A. 2C:43-6.4(d), enjoys the full panoply of rights afforded

any person accused of a crime.       Further, a defendant subject to

parole revocation is entitled to the rights mandated by N.J.S.A.

30:4-123.62 and -123.63, which include a hearing.    N.J.S.A. 2C:43-

6.4(b).   And contrary to defendant's averment that the prospect

of release from PSL "has been virtually eliminated," N.J.S.A.

2C:43-6.4(c) – as he recognized in his merits brief – provides a

pathway for eventual release from PSL supervision.

     Affirmed.




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