STATE OF NEW JERSEY VS. RAKEEM WILLIAMS (13-02-0284, ESSEX COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5449-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAKEEM WILLIAMS, a/k/a
RAKEEM SMITH, RASHEEM
SMITH, RAHEEM WILLIAMS,
RAKEEM K. WILLIAMS,
RAKEEM R. WILLIAMS,
RASHAMOND WILLIAMS,
RASHAMAND WILLIAMS,
RASHON WILLIAMS, and
RASKEEN WILLIAMS,

     Defendant-Appellant.
______________________________

                   Submitted September 30, 2020 – Decided October 9, 2020

                   Before Judges Haas and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 13-02-0284.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Abby P. Schwartz, Designated Counsel, on
                   the brief).
            Theodore N. Stephens II, Acting Essex County
            Prosecutor, attorney for respondent (Frank J. Ducoat,
            Special Deputy Attorney General/Acting Assistant
            Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Rakeem Williams appeals from a May 10, 2019 Law Division

order denying his petition for post-conviction relief ("PCR") following an

evidentiary hearing. Defendant claims his former plea counsel was ineffective

because he conducted an inadequate investigation and improperly recommended

defendant enter a guilty plea to aggravated manslaughter.           Defendant

specifically maintains that his plea counsel failed to interview witnesses and

retain a ballistics expert that would have supported his claim that he acted in

self-defense. We affirm.

      After the police investigated a shooting in Newark that resulted in the

death of the victim, defendant was arrested, indicted and charged with first-

degree murder, N.J.S.A. 2C:11-3(a)(1)(2); second-degree possession of a

firearm without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of

a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a). Defendant pled guilty to

an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4(a), and was sentenced in accordance with his negotiated plea agreement to a


                                                                       A-5449-18T4
                                      2
fifteen-year custodial sentence with an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The

court also assessed applicable fines and penalties and dismissed the weapons

offenses. We denied defendant's appeal, which was limited to the sentence

imposed. State v. Williams, A-0032-14 (App. Div. Dec. 4, 2014).

      Defendant filed a timely pro se PCR petition which appointed PCR

counsel supplemented with a brief and certifications of defendant and his cousin

Victoria Sykes who attested to defendant's self-defense claim. Defendant also

submitted the affidavit of Christopher Castelluzzo who stated that he was

questioned by a detective regarding the murder and advised the police that he

"did not see any murder nor did [he] know [defendant]." He stated that despite

his lack of knowledge, the police asked him to inculpate defendant because an

"overzealous detective had a murder on his desk and was doing anything in his

power to get anyone [to] point out [defendant]."

      Judge Michael A. Petrolle granted defendant's request for an evidentiary

hearing which he conducted on May 10, 2019. Defendant's plea counsel testified

as did Victoria Sykes. The judge also reviewed the certifications submitted, as

well as the transcripts from the grand jury, plea and sentencing proceedings. In

his oral and written opinion issued the same day, Judge Petrolle concluded that


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                                       3
defendant failed to satisfy either prong of the two-part test for ineffective

assistance of counsel detailed in Strickland v. Washington, 

466 U.S. 688

(1984),

and adopted by the New Jersey Supreme Court in State v. Fritz, 

105 N.J. 42

(1987).1

      With respect to prong one, Judge Petrolle rejected defendant's assertion

that his plea counsel was ineffective for advising him to plead guilty to

aggravated manslaughter. The court concluded that based on the statements of

the various witnesses and other proofs against defendant, plea counsel did

"better than a reasonable job in representing the defendant."

      Judge Petrolle specifically credited defendant's plea counsel's testimony

that he discussed the case with defendant, including the viability of a self -

defense claim.   Judge Petrolle also found that plea counsel reviewed with

defendant all witness statements provided in discovery and discussed the risk of

a lengthy custodial sentence for the murder and weapons offenses.




1
 Under the Sixth Amendment of the United States Constitution, persons accused
of crimes are guaranteed the effective assistance of legal counsel in their
defense. 

Strickland, 466 U.S. at 686

. To establish a deprivation of that right, a
defendant must demonstrate that: 1) counsel's performance was deficient; and
2) the deficient performance actually prejudiced the accused's defense.

Id. at 687;

see also State v. 

Fritz, 105 N.J. at 58

(1987).
                                                                         A-5449-18T4
                                       4
      Judge Petrolle rejected the testimony of Victoria Sykes who stated that the

victim possessed a gun and shot at defendant first. The judge characterized her

testimony as "doubtful" considering her continued relationship with defendant

and the fact that her testimony at the PCR hearing contradicted an earlier

statement she provided to the police immediately after the shooting, as well as

the statements of other witnesses. Judge Petrolle also relied on defendant's

statements at the plea and sentencing hearings where he admitted he shot the

victim and apologized to the victim's family.

      The court found defendant's claim that his plea counsel "failed to

investigate eyewitnesses to see if they were influenced to change their

statements" unsupported by the record. Judge Petrolle noted that defendant

"provide[d] no identification of any witness whom he contends his trial counsel

should have, and failed to, investigate [and] whether he or she was influenced

to change his or her statement." Judge Petrolle further reasoned that defendant

failed to "offer any affidavit or certification or other competent evidence of the

substance or reasonable basis for a claim of such influence that . . . his trial

counsel failed to investigate." Finally, the judge concluded the affidavit of

Christopher Castelluzzo failed to offer "any evidence . . . material to [the

application's] outcome."


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                                        5
      The judge also rejected defendant's claim that plea counsel was ineffective

for failing to retain a ballistics expert. According to defendant, such an expert

would have established that "[s]oot around the entry wound show[ed] that [he]

was at a distance so [any of his] residue could not have got on the victim." Judge

Petrolle correctly reasoned that defendant was not competent to offer such an

opinion and he failed to support his PCR petition with an opinion of an expert

or provide other competent evidence to support the claim.2

      As to prong two, Judge Petrolle explained in his oral decision that there

was nothing in plea counsel's conduct "or its result that [was] in any way unduly

prejudicial to the defendant." The judge also noted that defendant voluntarily

entered an informed plea after consulting with counsel.



2
  Defendant's supplemental certification before the PCR court contained a
number of other ineffectiveness claims that Judge Petrolle rejected.
Specifically, Judge Petrolle denied defendant's assertions that his plea counsel
was ineffective because he failed to: 1) challenge the identification procedure
employed by the police as contrary to Attorney General guidelines; and 2) file a
motion to dismiss the indictment because the evidence presented was unreliable
and the prosecutor failed to present exculpatory evidence. As defendant did not
raise these issues appropriately in his merits brief, we ordinarily would consider
them waived. See Nieder v. Royal Idem. Ins. Co., 

62 N.J. 229

, 234 (1973). For
purposes of completeness, however, we have nevertheless considered these
claims on the merits and agree with Judge Petrolle that they too fail to satisfy
the two-part Strickland test.



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                                        6
      On appeal, defendant argues:

            COUNSEL FOR DEFENDANT WAS INEFFECTIVE
            AS HE FAILED TO INVESTIGATE ANY ASPECT
            OF THE CASE CAUSING DEFENDANT TO ENTER
            A PLEA OF GUILTY TO [FIFTEEN] YEARS IN
            PRISON SUBJECT TO THE NO EARLY RELEASE
            ACT WHICH DENIED DEFENDANT DUE
            PROCESS AND A FAIR TRIAL.

            A. INTRODUCTION

            B. INEFFECTIVE ASSISTANCE OF COUNSEL

            C. COUNSEL NEVER FULLY CONSIDERED A
               DEFENSE OF SELF-DEFENSE

            D. TRIAL    COUNSEL'S     FAIL[ED]                  TO
               INVESTIGATE THE FACTS OF THE CASE

            E. COUNSEL FAILED TO CONSULT WITH A
               BALLISTICS EXPERT

            F. THE CUMULATIVE ERROR REQUIRES A
               REMAND AND NEW PROCEEDINGS

      Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its

review of live witness testimony." State v. Nash, 

212 N.J. 518

, 540 (2013); see

also State v. O'Donnell, 

435 N.J. Super. 351

, 373 (App. Div. 2014) ("If a court

has conducted an evidentiary hearing on a petition for PCR, we necessarily defer

to the trial court's factual findings."). Where an evidentiary hearing has been


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                                       7
held, we should not disturb "the PCR court's findings that are supported by

sufficient credible evidence in the record." State v. Pierre, 

223 N.J. 560

, 576

(2015) (citations omitted). We review any legal conclusions of the trial court

de novo. 

Nash, 212 N.J. at 540

–41; State v. Harris, 

181 N.J. 391

, 419 (2004).

      Against this standard of review, we find no merit to the contentions raised

by defendant and affirm substantially for the reasons expressed by Judge

Petrolle in his thorough oral and written opinions. We offer only the following

brief comments.

      Where, as in this case, a defendant claims that his or her trial attorney

"inadequately investigated his or her case, [he] must assert the facts that an

investigation would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification." State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999).

"[B]ald assertions" of deficient performance are insufficient to support a PCR

application.   Ibid., see also State v. Porter, 

216 N.J. 343

, 356-57 (2013)

(reaffirming these principles in evaluating which of a defendant's various PCR

claims warranted an evidentiary hearing). In other words, a defendant must

identify what the investigation would have revealed and demonstrate the way

the evidence probably would have changed the result. 

Fritz, 105 N.J. at 64-65

.


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        The credible proofs from the evidentiary hearing supported the court's

factual findings and legal conclusions that plea counsel appropriately

investigated the charges and provided accurate advice. Plea counsel reviewed

all the relevant discovery, including witness statements and the grand jury

proceedings, and discussed the charges and applicable defenses with defendant.

In addition, plea counsel filed a successful Miranda3 motion which resulted in

the State reducing its plea offer from twenty-five years for the first-degree

murder offense to fifteen-years for the amended aggravated manslaughter

charge.

        Plea counsel also considered the merits of a self-defense claim and

determined it would have been a "gamble to go to trial." Plea counsel based this

evaluation on the inculpatory evidence that established:        1) none of the

contemporaneous witness statements stated that the victim shot at defendant, 2)

a gun allegedly possessed by the victim was never found at the scene, and 3) one

of the bullets that struck the victim had a rear entry point.

        As Judge Petrolle correctly noted, defendant failed to identify any

additional witness that plea counsel should have interviewed. Finally, the court

found the recanted testimony of Victoria Sykes lacked credibility and the issues


3
    Miranda v. Arizona, 

384 U.S. 436

(1966).
                                                                        A-5449-18T4
                                         9
raised in the Christopher Castelluzzo          affidavit were irrelevant and

inconsequential to defendant's petition.     The record amply supports those

findings.   We also agree with Judge Petrolle that the record failed to support

defendant's claim that plea counsel was ineffective for failing to retain a

ballistics expert.

      Moreover, "[i]n the PCR context, to obtain relief from a conviction

following a plea, 'a petitioner must convince the court that a decision to reject

the plea bargain would have been rational under the circumstances.'" State v.

O'Donnell, 

435 N.J. Super. 351

, 371, 

89 A.3d 193

(App. Div. 2014) (quoting

Padilla v. Kentucky, 

559 U.S. 356

, 372 (2010)). Under the circumstances and

based on the information available to plea counsel regarding the strength of the

self-defense claim, it would not have been rational for defendant to reject the

plea bargain under the circumstances. Independent of any exposure on the

weapons offenses, defendant faced a thirty-year sentence if found guilty of

murder. As plea counsel testified, there was no corroborating evidence that the

victim had a gun or that otherwise reasonably supported a self-defense claim.

      In sum, we agree with Judge Petrolle that defendant failed to satisfy either

the performance or prejudice prong of the Strickland test. To the extent we have

not addressed any of defendant's arguments it is because we conclude they are


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                                      10
without sufficient merit to warrant discussion in written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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