On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-03-0272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2012 --
Before Judges Parrillo and Maven.
Defendant David Wilson appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
Tried by a jury, defendant was convicted of two counts of first-degree attempted murder against Craig Williams, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (counts one and five); two counts of second-degree aggravated assault for attempting to cause or causing serious bodily injury to Craig Williams, N.J.S.A. 2C:12- 1(b)(1) (counts two and six); two counts of fourth-degree aggravated assault of Craig Williams, N.J.S.A. 2C:12-1(b)(4) (counts three and seven); and two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a) (counts four and eight). Co-defendants Jerry Goldware and John Henry Lewis, who were charged with various of these same counts, both pleaded guilty prior to trial and testified for the State.
According to the State's proofs, defendant became upset at Craig Williams, a long-time acquaintance and known drug addict, for using a tavern's public restroom where defendant supposedly dealt drugs. Following this incident, defendant tracked Williams down and unsuccessfully attempted to kill him on two separate occasions within the span of a couple of hours. At defendant's sentencing, the court merged counts two, three, and four into count one and counts six and seven into count five, imposing for the crimes of attempted murder concurrent twenty-year terms subject to serving eighty-five percent of the sentence before parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1 Defendant appealed and we affirmed the judgment of conviction. State v. Wilson, No. A- 5170-99 (App. Div. December 27, 2001). The Supreme Court then denied defendant's petition for certification. State v. Wilson, 171 N.J. 443 (2002).
Defendant filed a timely PCR petition in which he alleged ineffective assistance of both trial and appellate counsel. Specifically, defendant claimed that: (1) trial counsel failed to advise him of the NERA ramifications; (2) trial counsel failed to have defendant's father Donald Matlock, testify as an alibi witness; (3) appellate counsel failed to argue that the court improperly allowed the jury to consider that the argument between defendant and the victim was drug-related; and (4) trial and appellate counsel failed to move for a mistrial due to juror inattention.*fn2 In a comprehensive written opinion of July 20, 2010, the PCR judge addressed and rejected each of these claims and, accordingly, denied defendant's petition. The judge concluded:
[Defendant] fails to establish that he was in fact misinformed by trial counsel. As argued by the State, a written plea offer for ten years, subject to NERA, was conveyed to [first defense counsel] on April 9, 1998. Additionally, a transcript of the December 14, 1998 Status Conference reveals that [first defense counsel] was in possession of the plea offer, and there is no evidence to believe that this offer was not conveyed to [defendant] or that [first defense counsel] did not discuss the offer with him. Moreover, the record indicates that [defendant] was present at the status conference in which the judge repeatedly made mention of the 85% NERA parole disqualifier. As for [second defense counsel's] representation, it is reasonable that he would not have detailed recollections of conversations he had with a client almost five years prior. This, in itself, is not evidence that the conversation did not actually take place.
It is clear that a plea offer was extended to [defendant] however; he chose to decline the offer and take his chances at trial.
Most significant is that the record indicates [defendant] was present at a status hearing in which the 85% parole disqualifier was discussed in relation to a plea offer extended to him. Moreover, there is no right to a plea bargain. [Defendant] had the opportunity to accept a plea offer subject to time-served, but chose not to, most likely because it required him to provide a truthful statement against his co-defendants.
The record [also] indicates that [first defense counsel] made a reasonable effort to locate Mr. Matlock. Additionally, [defendant] was made aware of the problems in locating his father by both trial counsel and the court; however he failed to provide either with his whereabouts. Even if Mr. Matlock had testified, [defendant] has failed to establish that his testimony would have affected the outcome of the case. The affidavit submitted by Mr. Matlock conflicts with the testimony of [Craig] Williams, [and the two co-defendants,] who all stated that they saw [defendant] at 813 Bar at approximately 9:00 P.M. Moreover, in [defendant's] own recitation of the facts, which he provided to an investigator on October 30, 1997, he claimed that he did not go to his father's house until sometime between 9:15 and 9:30 p.m.
After hearing from both sides, and considering the fact that the argument [between defendant and Williams] took place on the same evening as the shootings, the Judge determined the information [as to the nature of the argument] to be ...