STATE OF NEW JERSEY v. JEREL WILKINS, a/k/a JEREL WILKENS, and JERELL WILKINS

On October 26, 2013, defendant entered a liquor store at

approximately midnight. He possessed a loaded .38 caliber

revolver in a holster hidden from view. He did not have a

permit, and he had a prior conviction for aggravated assault.

In the liquor store, undercover police officers noticed the gun

and drew their weapons. Defendant ran. An undercover officer

grabbed defendant and he resisted.

Defendant was charged with: count one, second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); count

two, first-degree unlawful possession of a handgun by a person

with a prior conviction, N.J.S.A. 2C:39-5(j); count three,

fourth-degree possession of hollow-point bullets, N.J.S.A.

2C:39-3(f); count four, third-degree resisting arrest, N.J.S.A.

2C:29-2(a)(3); and count five, second-degree certain person not

to have a firearm, N.J.S.A. 2C:39-7(b).

Pursuant to the plea bargain, defendant pled guilty to

counts four and five. Defendant received the negotiated five

years in prison for count four and a concurrent seven years in

prison for count five, with five years of parole ineligibility.

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The trial court ordered the sentences to run concurrent to

defendant's sentence for a parole violation. He did not appeal

the January 2, 2015 judgment of conviction.

On February 8, 2016, defendant filed a PCR petition. His

certification alleged his plea counsel was ineffective because

his counsel "failed to explore the amnesty issue" under L. 2013,

c. 117 ("2013 amnesty act" or "act"). Defendant certified when

he was arrested by police he "was committing no crime and was on

[his] way to the police station to lawfully dispose of the

weapon when [he] stopped for a meal." His certification also

alleged his plea counsel "said the amnesty period was 'not

official' and failed to explore the issue further."

On August 30, 2016, the PCR court heard oral argument and

denied relief. In an oral decision, the court concluded plea

counsel was not ineffective because defendant presented no

evidence of a written notice of surrender pursuant to N.J.S.A

2C:39-12, and thus was not shielded from criminal liability by

the 2013 amnesty act.

Defendant appeals, arguing:

POINT I - FAILURE OF THE PCR COURT TO GRANT [AN] EVIDENTIARY HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF PLEA COUNSEL WAS ERROR.



POINT II - THE PCR COURT ERRED IN NOT ALLOWING DEFENDANT TO WITHDRAW HIS GUILTY PLEA.

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II.

Defendant argues the trial court erred in denying him an

evidentiary hearing on his ineffective assistance of counsel

claim. "A defendant shall be entitled to an evidentiary hearing

only upon the establishment of a prima facie [case] in support

of post-conviction relief." R. 3:22-10(b). "To establish a

prima facie case, defendant must demonstrate a reasonable

likelihood that his or her claim, viewing the facts in the light

most favorable to defendant, will ultimately succeed on the

merits." Ibid. As the PCR court did not hold an evidentiary

hearing, we "conduct a de novo review." State v. Harris, 181

N.J. 391, 419 (2004). We must hew to that standard of review.

To show ineffective assistance of counsel, defendant must

satisfy the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42

(1987). "First, defendant must show that counsel's performance

was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009)

(quoting Fritz, 105 N.J. at 52). "Second, defendant must show

that the deficient performance prejudiced the defense." Ibid.

For a defendant who has pled guilty to show prejudice, he must

show "that there is a reasonable probability that, but for

counsel's errors, [defendant] would not have pled guilty and

would have insisted on going to trial." State v. DiFrisco, 137

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N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59

(1985)).

III.

Defendant claims plea counsel failed to explore the

applicability of the 2013 amnesty act. The act became effective

on August 8, 2013. L. 2013, c. 117, §3. The act created a 180

day window allowing persons to transfer or surrender firearms

they possessed unlawfully without any legal consequences. State

v. Harper, 229 N.J. 228, 236 (2017). The 2013 amnesty act

provided:

Any person who has in his possession a handgun in violation of [N.J.S.A. 2C:395(b)] or a rifle or shotgun in violation of [N.J.S.A. 2C:39-5(c)] on the effective date of this act may retain possession of that handgun, rifle, or shotgun for a period of not more than 180 days after the effective date of this act. During that time period, the possessor of that handgun, rifle, or shotgun shall:



(1) transfer that firearm to any person lawfully entitled to own or possess it; or



(2) voluntarily surrender that firearm pursuant to the provisions of N.J.S.A. 2C:39-12.



[Ibid. (alterations in original) (quoting L. 2013, c. 117, § 1).]



Under N.J.S.A 2C:39-12, a person seeking to voluntarily

surrender a weapon must "gi[ve] written notice of his intention

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to do so," and voluntarily surrender the weapon, "to the

superintendent or to the chief of police" before authorities

file any charges and "before any investigation has been

commenced concerning the unlawful possession" of the weapon.

Ibid. A person invoking the 2013 amnesty act must "comply with

the provisions of N.J.S.A. 2C:39-12[.]" Harper, 229 N.J. at

240; State in Interest of C.L.H.'s Weapons, 443 N.J. Super. 48,

56 (App. Div. 2015). Otherwise, the 2013 amnesty act's

provisions "would be transformed from devices to encourage the

surrender of firearms to a 'free pass' for those the police have

already found or suspect to be in illegal possession[.]" Ibid.

(quoting C.L.H.'s Weapons, 443 N.J. Super. at 57).

Thus, a defendant charged with violating N.J.S.A 2C:39-5(b)

during the 180-day amnesty period may raise the amnesty act as a

defense only if he can prove that he possessed a handgun on

August 8, 2013, and "that he took steps to . . . voluntarily

surrender it during the 180-day period beginning on August 8,

2013, consistent with N.J.S.A. 2C:39-12 — that is, before

authorities brought any charges or began to investigate his

unlawful possession." Harper, 229 N.J. at 241.

Other than unlawfully possessing the gun, defendant did not

meet any of the requirements of the 2013 amnesty act. First,

defendant did not even allege that on August 8, 2013, he

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possessed the handgun he was arrested with on October 26, 2013.

That was enough to defeat his claim. See C.L.H.'s Weapons, 443

N.J. Super. at 56. Second, defendant did not provide written

notice of intent to surrender the gun prior to his arrest

pursuant to N.J.S.A 2C:39-12. That too was a sufficient basis

to reject the claim.

Third, "nothing in the record [of his prosecution]

demonstrates that defendant took steps to transfer or surrender

the handgun prior to his arrest." Harper, 229 N.J. at 243.

Indeed, when defendant had the gun in the presence of police

officers, he ran away.

Defendant's PCR certification claimed he was "on [his] way

to lawfully dispose of the weapon when [he] stopped for a meal,"

in a liquor store at midnight on a Saturday. However, he did

not claim he told that to plea counsel.

"The reasonableness of counsel's actions" depends on the

"information supplied by the defendant. In particular, what

investigation decisions are reasonable depends critically on

such information." DiFrisco, 174 N.J. at 228 (quoting

Strickland, 466 U.S. at 691). "Counsel cannot be faulted for

failing to expend time or resources analyzing events about which

they were never alerted." Ibid.

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Defendant did certify his "plea attorney said the amnesty

period was 'not official' and failed to explore the issue

further." However, "[a] court shall not grant an evidentiary

hearing . . . (2) if the defendant's allegations are too vague,

conclusory or speculative." R. 3:22-10(e). "Rather, defendant

must allege specific facts and evidence supporting his

allegations." State v. Porter, 216 N.J. 343, 355 (2013). In

order to show a prima facie claim, a petitioner for post

conviction relief "must do more than make bald assertions that

he was denied the effective assistance of counsel." Ibid.

In any event, given defendant's inability even to allege he

met the requirements of the 2013 amnesty act, defendant has not

shown further investigation could have changed the outcome. He

did not even allege, let alone show, that he would not have pled

guilty and would have gone to trial if plea counsel had

explained to him the requirements of the act. Therefore,

defendant cannot show prejudice. Thus, the PCR court properly

denied defendant's PCR petition without an evidentiary hearing.

IV.

In his pro se PCR petition, defendant argued he should be

permitted to withdraw his guilty plea under Rule 3:21-1 based on

the 2013 amnesty act. However, defendant's counseled brief did

not raise such a claim. In its ruling, the PCR court said

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defendant had not asked to withdraw his plea, but it would

"consider such a motion so the record is complete." Defendant

argues the trial court erred in denying withdrawal of his guilty

plea. We disagree.

"[A] plea may only be set aside in the exercise of the

court's discretion." State v. Slater, 198 N.J 145, 156 (2009)

(citing State v. Simon, 161 N.J. 416, 444 (1999)). Thus, an

appellate court will reverse a "trial court's denial of [a]

defendant's request to withdraw his guilty plea . . . only if

there was an abuse of discretion which renders" the trial

court's decision "clearly erroneous." Simon, 161 N.J. at 444.

A motion to withdraw a guilty plea after sentencing can be

granted only "to correct a manifest injustice." R. 3:21-1. The

court must consider "(1) whether the defendant has asserted a

colorable claim of innocence; (2) the nature and strength of the

defendant's reasons for withdrawal; (3) the existence of a plea

bargain; and (4) whether withdrawal could result in unfair

prejudice to the State or unfair advantage to the accused."

Slater, 198 N.J. at 157-58. If one factor is missing, it does

not "automatically disqualify or dictate relief." Id. at 162.

Defendant asserts he has a colorable claim of innocence

under the 2013 amnesty act. However, Slater makes clear that a

"bare assertion of innocence is insufficient to justify

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withdrawal of a plea. Defendants must present specific,

credible facts and, where possible, point to facts in the record

that buttress their claim." Id. at 158. As set forth above,

defendant failed to allege such facts to show he met the

requirements of the 2013 amnesty act.

Defendant claims plea counsel's alleged advice that the

2013 amnesty act was "not official" was an adequate reason for

withdrawal. However, as set forth above, that is not a strong

reason for withdrawal. As the PCR court found, defendant's

claim that he was on his way to the police station when he was

arrested appears to be a meritless "after thought."

Defendant received a favorable plea bargain. He was

initially charged with five different crimes including one

first-degree and two second-degree offenses. However, the plea

bargain allowed defendant to plead guilty to only a second

degree offense and a third-degree offense, with concurrent

sentences totaling only seven years. "[D]efendants have a

heavier burden in seeking to withdraw pleas entered as part of a

plea bargain."

The PCR court found no undue prejudice to the State.

Nonetheless, balancing all of the factors, the PCR court did not

abuse its discretion in finding defendant was not entitled to

withdraw his plea.

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Affirmed.