Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1037-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUINCY OLIVER, a/k/a Q.H. OLIVER and QUNICY OLIVER, Defendant-Appellant. ___________________________ Submitted October 7, 2026 – Decided November 6, 2026 Before Judges Vinci and Zazzali-Hogan. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-02-0111. Jennifer N. Sellitti, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the briefs). James O. Tansey, First Assistant Prosecutor of Union County, Designated Prosecutor for purpose of this appeal, attorney for respondent (Michele C. Buckley, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Quincy Oliver appeals from a September 26, 2024 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm substantially for the reasons set forth in Judge Regina Caulfield's comprehensive and well-reasoned written decision. I. On June 8, 2015, at approximately 10:00 p.m., Nigel Morton was shot and killed in his home in Rahway. The State alleged defendant and three other individuals, including his co-defendants, Tyrell Dekle and James Sears, were responsible for Morton's murder. On October 19, 2016, a Union County grand jury returned an indictment charging defendant, Dekle, and Sears with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Beginning in April 2017, defendant was represented by retained counsel, Brooke Barnett, Esq. After several adjournments, trial was scheduled to begin on May 29, 2018. A-1037-24 2 On May 8, 2018, Barnett moved to be relieved as counsel. She asserted she had been on trial in another matter from late February until April 18, 2018, and had been unable to adequately prepare for defendant's trial and had "not had the time to even review his file nor prepare any pretrial motions [or] responses." Barnett also asserted defendant "expressed to [her] that he [did] not wish for [her] to represent him." On May 14, the trial judge heard oral argument on Barnett's motion. Barnett represented that there was a "breakdown in communication" between her and defendant and she would not be effective counsel if she was not relieved. She also advised the judge she was "going to seek outside medical help to assist [her] because . . . [she] just mentally and physically [could not] handle it." Defendant advised the judge he was not confident in Barnett's abilities and wanted to "leave" Barnett "because [they were] not communicating and [were] not seeing eye to eye." He told the judge he was "planning on having a pool attorney." Defendant's co-defendants moved to sever their charges from defendant's charges so they could proceed to trial. They asserted their right to a speedy trial would otherwise be violated because they had been in custody since October 2015. A-1037-24 3 On May 15, 2018, the judge entered orders granting Barnett's motion and co-defendants' motion for severance. He concluded Barnett's motion had to be granted to assure defendant was provided with effective assistance of counsel. He granted co-defendants' motion for severance finding the "preference for joint trials, and the court's interest in judicial economy, cannot override a defendant 's right to a fair and speedy trial." The trial of Dekle and Sears began on May 29, 2018, and concluded on July 18, 2018. It is undisputed that counsel for Dekle and Sears attempted to blame defendant for the murder in that trial. Both co-defendants were found not guilty of murder. Dekle was found not guilty on the weapons offenses. The jury was not able to reach a verdict as to either of them on the charge of conspiracy to commit murder or as to the weapons charges against Sears. After Barnett was relieved as counsel, Michael Rubas, Esq. was appointed to represent defendant. On October 9, 2018, the State moved to rejoin the charges against all defendants for trial. Counsel for Dekle and Sears did not oppose the State's motion. On November 12, Rubas filed a letter stating defendant also did not object to rejoinder. The State's motion was granted, and trial was scheduled to begin on May 29, 2019. A-1037-24 4 Shortly before trial was scheduled to begin, the State obtained a series of letters defendant sent from the Union County Jail to his girlfriend, Iyona Henderson. Henderson testified at the first trial that defendant sent her a Twitter message on June 8, 2015, stating he was "[a]bout to go handle" Morton and "[p]op his hoe ass." Henderson also previously gave recorded statements to law enforcement implicating defendant in Morton's murder. In defendant's letters, which were sent in or around April 2019, he encouraged Henderson to refuse to testify at the upcoming trial or "take a vacation."1 If she did appear for trial, defendant asked her to say she lied in her prior statements "because [she] was under 'stress' and [she] was under the influence of molly or some sh** like that." Defendant provided scripted "examples" of answers she could give, including that the detectives "threatened [her] and told [her] if [she] did[ not] impl[i]cate [defendant] they would lock [her] up," and she "was scared." Jury selection began on May 28, 2019. On June 6, 2019, defendant pleaded guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), in exchange for the State's agreement to recommend a sentence of twenty-one 1 The letters are not included in the appellate record. Our understanding of the content of the letters is based on Judge Caulfield's written decision. A-1037-24 5 years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to dismiss all other charges, including a violation of probation, and not charge defendant with witness tampering or obstruction based on his letters to Henderson. Dekle and Sears also pleaded guilty to lesser offenses. Defendant provided a factual basis for his plea in which he admitted that, on June 8, 2015, he was driving his car in Rahway with three other occupants. Defendant acknowledged having an incident with Morton earlier in the day and that he previously had issues with Morton because he was dating the mother of defendant's child. Defendant admitted he knew someone in the car was armed with a handgun, and that person left the car with the handgun and had an interaction with Morton resulting in him being shot. Defendant acknowledged he sent a Twitter message earlier that day about "popping" Morton. Defendant agreed he permitted his car to be used to drive the person who shot Morton to Morton's house and aided that person in the commission of the crime. Defendant also admitted he took possession of the handgun after Morton was shot and hid the gun in a sewer drain in Union County. Defendant acknowledged he wrote letters to one of the witnesses about A-1037-24 6 her testimony in his upcoming trial telling her not to cooperate and scripting out some of her testimony, which constituted witness tampering. On September 5, 2019, defendant was sentenced to twenty-one years in prison subject to NERA in accordance with the plea agreement. We affirmed defendant's sentence on our sentencing oral argument calendar. State v. Oliver, No. A-002011-19 (App. Div. Oct. 28, 2020). Our Supreme Court denied defendant's petition for certification. State v. Oliver, 246 N.J. 236 (2021). Defendant filed a timely petition for PCR. He argued Barnett "was ineffective for moving to withdraw from the case on the eve of trial" leaving him with "no attorney to object to the trial [judge's] concurrent decision to grant severance." Defendant contended he was prejudiced because he "had a viable argument against severance that was never advanced" and "his co-defendants both were acquitted of the murder charges." He argued Rubas "was ineffective for not objecting to re-joinder so that defendant could have presented a third- party guilt defense." 2 On October 7, 2022, Judge Caulfield heard oral argument and granted defendant's request for an evidentiary hearing. On February 15, 2024, the judge 2 Defendant also argued appellate counsel was ineffective. That argument was expressly waived on appeal. A-1037-24 7 conducted an evidentiary hearing at which Rubas testified. According to Rubas, he did not object to the State's motion for rejoinder because "he did not think there was a legal basis to do so." In addition, he and counsel for the co- defendants had spent a significant amount of time planning a third-party guilt defense involving an individual from Newark, which he believed was a viable defense at trial. He believed it would be stronger to have three attorneys arguing the same thing than if defendant went to trial by himself. Rubas testified that although the co-defendants were found not guilty of murder, they were still facing conspiracy charges, and a joint third-party guilt defense made sense. Rubas explained the letters defendant sent Henderson "were devastating" and "changed everything." Rubas was "extremely" concerned about them and they "changed the entire tenor of the proceedings." He believed it would be "hard to argue a third-party guilt defense" with the defendant "basically telling the main witness . . . to not show up or change her testimony." The letters showed "consciousness of guilt" and "juries understand things like that." The letters also "blew . . . up" the joint defense and the "unified trial strategy . . . did[ not] look like it was going to take shape because [the co-defendants] were going to distance themselves from that." In addition, he was "concerned about witness tampering, hindering, or obstruction-type A-1037-24 8 charges" that would run consecutively to any other convictions. Rubas believed defendant was in "very great liability, in jeopardy, if he went to trial." On September 26, 2024, Judge Caulfield entered an order denying defendant's petition for PCR, supported by a one-hundred-page written decision. She found defendant failed to show he was prejudiced by Barnett's withdrawal from the case before trial. In fact, it was Rubas "not Barnett, who secured a much better deal for defendant than the one previously offered[,] even after the evidence against [him] became stronger through the numerous letters [he] sent . . . Henderson." The judge found Rubas was "a credible witness." She found defendant's ineffective assistance claim against Rubas failed both prongs of the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). As to prong one, the judge found Rubas testified credibly that he "did not oppose the State's motion [for rejoinder] . . . as he had no basis for doing so" and developed a strategy with counsel for the co-defendants to advance a unified third-party guilt defense. The judge also recognized that the failure to file a frivolous motion cannot form the basis of an ineffective assistance claim, and Rubas had no meritorious basis to oppose joinder. A-1037-24 9 As to prong two, the judge found defendant failed to show he was prejudiced by the alleged failure to oppose joinder or the plea agreement. Based on her "reading of the transcripts and assessment of the evidence, defendant had a slim chance [of] acquittal with all three defendants presenting a common third- party defense" but "had little chance of success if tried alone where the jury . . . focused on only him." The judge concluded "[i]f defendant had gone to trial, with or without his co-defendants, the strength of the evidence would most certainly have led to his conviction for . . . murder . . . as an accomplice." The judge outlined the substantial evidence the State amassed against defendant and determined his "letters to Henderson turned a strong case against [him] for arranging the shooting of Morton into an overwhelming one." She found "it would not have been reasonable for defendant to have turned down the State's offer given the fact that he would have likely . . . been convicted" based on accomplice or conspiracy liability theories, and "would have received a consecutive sentence for witness tampering." A-1037-24 10 II. On appeal, defendant raises the following arguments for our consideration: POINT I DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT [BARNETT] AND [RUBAS] PROVIDED HIM INEFFECTIVE ASSISTANCE. [A]. [Barnett] provided defendant with ineffective assistance, as her failure to prepare for the 2018 trial made necessary the severance and the eventual rejoinder which unduly prejudiced defendant. [B]. [Rubas] provided defendant with ineffective assistance of counsel. Specifically, he argues Barnett "neglected even to review the discovery materials . . . for more than a year, interviewed no witnesses, neglected even to review witness statements, and ignored a confirmed trial date." He contends "[h]ad . . . Barnett been prepared to try [the] case, the uncertainty of the evidence that led to the murder acquittals of Sears and Dekle might well have extended to [him], thus eliminating the possibility of an eventual sentence for homicide" and may have resulted in a lesser sentence. Defendant contends Rubas "provided ineffective assistance of counsel by failing to oppose [his] rejoinder for a joint trial" and his "decision to pursue a A-1037-24 11 joint third[-]party guilt defense along with Sears and Dekle, who previously had cast blame on [him] . . . was unreasonable, and the eventual guilty plea was coerced." III. 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). Where an evidentiary hearing has been 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) (quoting Nash, 212 N.J. at 540). We review any legal conclusions of the trial court de novo. Id. at 576-77; State v. Harris, 181 N.J. 391, 419 (2004). To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong Strickland test showing: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-prong test). Failure to meet either prong A-1037-24 12 of the Strickland/Fritz test results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280 (2012). Under the first prong, counsel's representation must be objectively unreasonable. Pierre, 223 N.J. at 578. "The test is not whether defense counsel could have done better, but whether [they] met the constitutional threshold for effectiveness." Nash, 212 N.J. at 543. In demonstrating that counsel's performance was deficient, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 689). Informed strategic choices "are virtually unchallengeable." Strickland, 466 U.S. at 690. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). Trial strategy is clearly within the discretion of competent trial counsel. State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div. 1983), certif. denied, 94 N.J. 531 (1983). A reviewing court must grant substantial deference to the discretion of counsel in determining which witnesses to call at trial. State v. Arthur, 184 N.J. 307, 321 (2005). Under the "'second, and far more difficult, prong of the' Strickland standard," State v. Gideon, 244 N.J. 538, 550 (2021) (quoting State v. Preciose, A-1037-24 13 129 N.J. 451, 463 (1992)), a defendant "'must show that the deficient performance prejudiced the defense.'" State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland, 466 U.S. at 687). To demonstrate "prejudice after having entered a guilty plea, a defendant must prove 'that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial.'" State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)). A defendant must show that, "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011). Having considered defendant's arguments in light of the record and these established principles, we discern no basis to disturb Judge Caulfield's well- reasoned determination that defendant failed to satisfy the Strickland test with regard to any of his contentions. The judge fully explained the basis for her ruling in her written decision, which included her determination that Rubas was credible and detailed findings of fact and conclusions of law. The judge correctly determined defendant failed to satisfy the prejudice prong of the Strickland test with respect to his allegations regarding Barnett. A-1037-24 14 Defendant's claim that he may have been acquitted of murder in the first trial if Barnett had not withdrawn was nothing more than speculation and ignored the substantial evidence the State had that he conspired to murder Morton and was an accomplice to his murder. The judge also properly concluded defendant's allegations regarding Rubas failed to satisfy either prong of the Strickland test. His strategic decision not to oppose rejoinder and to present a unified third-party guilt defense was reasonable and is entitled to deference. Additionally, defendant failed to show it would have been reasonable for him to reject the State's plea offer and go to trial in light of the State's overwhelming evidence of his guilt, including his letters to Henderson that were powerful evidence of consciousness of guilt. To the extent we have not addressed any remaining arguments, including defendant's argument that he should be permitted to withdraw his guilty plea based on ineffective assistance of counsel, it is because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. A-1037-24 15