                                NOT FOR PUBLICATION WITHOUT THE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-1332-18T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

CLYDE GAYLE,

     Defendant-Appellant.
_______________________________

                   Submitted March 31, 2020 – Decided May 1, 2020

                   Before Judges Yannotti and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 12-08-2273.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Charles P. Savoth, III, Designated Counsel,
                   on the brief).

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Jason Magid, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Clyde Gayle appeals from an order entered by the Law Division

on August 27, 2018, denying his petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

                                        I.

      The facts and procedural history in this matter were previously

summarized in our decision on defendant's direct appeal, State v. Gayle, No. A-

0575-14 (App. Div. Mar. 17, 2017), in which we affirmed defendant's conviction

and sentence. We briefly restate the facts pertinent to this appeal.

      On August 30, 2012, defendant was charged with second-degree unlawful

possession of a weapon, specifically, a .38 caliber handgun, N.J.S.A. 2C:39-5(b)

(count one); fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-

3(f) (count two); and second-degree certain persons not to possess weapons,

N.J.S.A. 2C:39-7(b) (count three).

      We affirmed the trial court's denial of defendant's motion to suppress

evidence regarding ShotSpotter, a system developed by the military to pinpoint

when a firearm is discharged. Gayle, slip op. at 8. Following a two-day jury

trial, a jury convicted defendant of all three counts. Id. at 9. The sentencing

judge found defendant was eligible for an extended term, and sentenced him to

an aggregate term of fourteen years of incarceration, with a seven-year period


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                                        2
of parole ineligibility. Ibid. The record shows defendant turned down a plea

offer of three years imprisonment under the Graves Act, 1 without parole.

       On November 15, 2017, defendant filed a pro se petition for PCR, and the

court appointed counsel to represent defendant.          PCR counsel argued that

defendant had been denied the effective assistance of counsel because his trial

counsel failed to advise him to accept the plea offer. Defendant's PCR counsel

also argued that while defendant was in the hallway in the proximity of several

jurors, a probation officer stated, "Didn't I have you before[?]" and trial counsel

was deficient for failing to bring this to the trial court's attention.

       On August 27, 2018, the PCR court, who was also the trial court, heard

oral argument on the petition and denied relief. In an oral opinion, the PCR

court determined that trial counsel was not ineffective because the decision to

accept or reject the plea offer was left to defendant, who decided to reject it and

proceed to trial.

       The PCR court was also unpersuaded by defendant's argument that his

trial counsel was ineffective for failing to bring the probation officer's comment

to its attention because the trial court made it abundantly clear to the jurors that

they were not to interact with any of the parties, and therefore, it was unlikely


1
    N.J.S.A. 2C:43-6(c).
                                                                            A-1332-18T2
                                          3
they overhead the passing comment. In addition, the PCR court found the

comment was innocuous and could not have improperly influenced the jurors.

      Defendant's counsel raises the following argument in his brief:

            IT WAS AN ABUSE OF DISCRETION FOR THE
            PCR COURT TO DENY DEFENDANT AN
            EVIDENTIARY HEARING REGARDING: (1) THE
            FAILURE OF BOTH PLEA AND TRIAL COUNSEL
            TO ADVISE DEFENDANT CONCERNING THE
            CONSIDERABLE    RISKS  HE    FACED   IN
            PROCEEDING TO TRIAL AND (2) THE FAILURE
            OF TRIAL COUNSEL TO SEEK A CURE FOR
            JURORS'   EXPOSURE    TO     EXTREMELY
            PREJUDICIAL INFORMATION.

      Having thoroughly reviewed the record, we conclude that the arguments

presented on appeal are entirely without merit. We affirm the denial of PCR

substantially for the reasons stated by the PCR court. We add the following.

      Defendant's claim that he was denied the effective assistance of counsel

as required by the Sixth Amendment to the United States Constitution is

considered under the standards enunciated in Strickland v. Washington, 466

U.S. 668, 687 (1984). In order to prevail on such a claim, a defendant first must

show that his attorney's handling of the matter "fell below an objective standard

of reasonableness." Id. at 688. A defendant also must show that there exists a

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

of the proceeding would have been different." Id. at 694. Our Supreme Court

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                                       4
has adopted this standard for evaluating ineffective-assistance-of-counsel

claims under our State constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

      We reject defendant's contention that his plea and trial counsel were

deficient for failing to advise him about the risks in proceeding to trial.

"Defendants have a Sixth Amendment right to counsel, a right that extends to

the plea-bargaining process." Lafler v. Cooper, 566 U.S. 156, 162 (2012). The

Strickland test has also been applied to "challenges of guilty pleas based on

ineffective assistance of counsel." State v. DiFrisco, 137 N.J. 434, 456 (1994).

      However, in those cases where the Strickland test has been applied to

rejected plea deals, specific instances of attorney ineffectiveness existed, such

as assuring a client that the plaintiff had no proof of their case. Lafler, 566 U.S.

at 161.

      In providing such assurances, the Court stated "that this [was] not a case

where petitioner's counsel merely offered a prediction about the outcome of the

trial," rather, "[c]ounsel here advised petitioner that a conviction was not

possible, even though it was. As the district court held, this erroneous advice

was objectively unreasonable, and was indisputably so." Cooper v. Lafler, 376

Fed. Appx. 563, 571 (6th Cir. 2010).




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                                         5
      In the matter under review, defendant asserts that trial counsel was

ineffective for failing to advise him to accept the State's plea offer. The record

shows defendant's counsel offered him a reasonable prediction of the outcome,

but defendant chose to try the case instead. Unlike the situation in Lafler,

defendant here clearly understood his decision to reject the plea offer, and he

was not improperly assured of any outcome by his counsel. As the PCR court

stated:

            Here, the -- the [d]efense contends he asked his attorney
            to attempt to negotiate a three-year prison sentence.
            Despite his attorney's reservations about the leniency of
            the offer, the State allegedly accepted.

            Based on the acceptance, the [defendant] surmised the
            case against -- against him must have been weak,
            however, his attorney apparently never explained the
            strengths or weaknesses of the case. Then before trial,
            the State offered a three-year sentence, one year to be
            served without parole, for the possession charge and
            indicated it was the last chance to accept the offer.

            The -- the attorney explained it was the last offer and
            -- and could accept or -- and stated his . . . the decision
            was up to him. [Defendant’s] sister has submitted a
            certification stating that she was present during the plea
            deal discussions between [defendant] and his attorney,
            and she confirms [defendant]’s factual assertions.

            As the State argues, and the [c]ourt agrees, this case is
            considerably different from the facts in Lafler, and
            particularly, there’s no are -- erroneous advice offered
            in this instance unlike the Lafler case. Here, [t]rial

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                                        6
            [c]ounsel left the decision to accept the deal up to
            [defendant]. He alone made the decision to reject the
            deal and to proceed to trial.

            He does not allege any . . . inaccurate advice from
            [c]ounsel. Counsel merely told him the proceeding was
            doing well, and in no way does that constitute any type
            . . . or guarantee of success at trial.

            Rather, [defendant] argues [c]ounsel was deficient for
            not advising him to accept the deal. This is completely
            distinguishable from advising a [d]efendant to reject a
            deal based upon erroneous impressions of the case.

            Ultimately, [defendant] was the only person who knew
            if he was guilty or not guilty. If he was innocent, it
            would have been wholly improper of [c]ounsel to
            advise him to falsely admit guilt. In sum, the decision
            to reject the plea was made by [defendant] and is not
            attributable to any deficient performance by [t]rial
            [c]ounsel.

            Accordingly, prong one of the Strickland test has not
            been met and this argument does not constitute a basis
            for [PCR].

      We are convinced the PCR court properly rejected defendant's argument

that his counsel was deficient for not advising him to accept the plea offer.

      We similarly reject defendant's argument that the PCR court failed to

conclude that his counsel was ineffective for not bringing the comment made by

the probation officer in front of several jurors to the trial court's attention. The

record shows the probation officer was dressed in civilian attire, not a police


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                                         7
uniform or any clothing that would indicate he was affiliated with law

enforcement. The comment itself was not prejudicial in nature, and there was

no proof that any juror heard the comment. The PCR court aptly recognized he

was also the trial court, and made "it abundantly clear to the [j]urors at all times

they're to have no interaction with any of the parties, including the [d]efendant."

      Additionally, the PCR court noted the alleged comment was "sufficiently

innocuous to prevent any improper outside influence on the [j]urors."

Furthermore, defendant's argument is not founded upon facts supported by an

affidavit or certification warranting consideration. See State v. Jones, 219 N.J.

298, 312 (2014). Thus, we reject defendant's argument.

      We also reject defendant's contention that the PCR court erred by failing

to conduct an evidentiary hearing on his petition. A hearing on a PCR petition

is warranted when the defendant presents a prima facie case in support of PCR,

the court determines that there are material issues of disputed fact that cannot

be resolved by review of the existing record, and the court finds that an

evidentiary hearing is necessary. R. 3:22-10(b); State v. Porter, 216 N.J. 343,

354 (2013).

      As we have explained, defendant failed to present a prima facie case of

ineffective assistance of counsel.    Defendant did not demonstrate prejudice


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                                         8
under the Strickland standard, and as a result, did not establish a prima facie

case of ineffective assistance of counsel warranting a hearing. Moreover, the

existing record was sufficient to resolve defendant's claims. The PCR court

correctly determined that an evidentiary hearing was not required.

      Affirmed.




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