Opinion
DOCKET NO. A-3084-13T3
12-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER COCCA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-03-0401 and Accusation No. 12-01-0044. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Christopher Cocca appeals from a December 9, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On February 16, 2011, defendant was indicted and charged in Hudson County with aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts one through three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five); resisting arrest, N.J.S.A. 2C:29-2(a) (count six); endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts seven and eight); child abuse, N.J.S.A. 9:6-1 and -3 (counts nine and ten); and burglary, N.J.S.A. 2C:18-2 (count eleven). Defendant was also charged on January 19, 2012, in a Hudson County accusation with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
The indictment and accusation arise from two separate incidents of domestic violence between defendant and his wife. In the first incident related to the indictment, police were dispatched to defendant's home following a call from defendant's wife, where they observed defendant emerging from the home running behind two children with a knife in his hand. Defendant's wife refused to provide a statement during the ensuing investigation, but her two children (defendant's step-children) gave statements that defendant attacked their mother and then chased them with the knife. In the second incident, which gave rise to the accusation, defendant attacked his wife with a screwdriver during an argument, and was cut with a knife by his wife in self-defense. In a statement following the second incident, defendant's wife told the assistant prosecutor about both incidents.
On January 19, 2012, defendant pled guilty to the second-degree aggravated assault charge lodged in the accusation, as well as second-degree endangering the welfare of a child in connection with counts seven and eight of the indictment. The plea agreement called for a sentence of five years on the second-degree aggravated assault conviction, with mandatory service of eighty-five percent of the sentence under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The agreement also called for concurrent sentences of five-years flat on counts seven and eight of the indictment, with the remaining counts of the indictment being dismissed. All of the terms of incarceration were to run concurrent. Because defendant pled guilty to second-degree aggravated assault, he executed a written supplemental plea form for convictions subject to NERA. The form clearly states that defendant would be required to serve eighty-five percent of the sentence imposed before being eligible for parole, and that he would be subjected to a term of parole supervision for three years as soon as he completed his term of incarceration.
During the plea colloquy, defendant stated that he reviewed the plea form with his attorney and that he understood it. Additionally, the following exchange took place between the judge and defendant:
Q: And on the last page five of five and [s]upplemental [p]lea [f]orm next to the word [d]efendant is a signature, is that your signature?
A: Yes.
Q: I [did not] hear you, sir[.]
A. Yes.
Q: And do you understand on the [s]upplemental [p]lea [f]orm it reads that you will be on [p]arole [s]upervision for a period of three years and that if you violate those conditions of [p]arole [s]upervision, once you are [p]aroled, that that may be revoked and you may be subject to return to prison to serve all or any portion of the remaining supervision.
Do you understand that, sir?
A: Yes.
On July 20, 2012, the judge denied defendant's motion to withdraw his guilty plea, and sentenced defendant on the aggravated assault charge to a term of five years in state prison. The judge imposed concurrent terms of five years on counts seven and eight of the indictment. The judgment of conviction was amended to include the NERA periods of parole ineligibility and parole supervision on September 14, 2012. Defendant appealed his convictions, but later withdrew the appeal.
On January 25, 2013, defendant filed a PCR petition, which was later supplemented by counsel. The PCR judge, who was also the plea and sentencing judge, issued an oral decision on December 9, 2013, denying the petition without an evidentiary hearing. This appeal follows.
Defendant raises the following points on appeal:
POINT I
THE PCR COURT'S FINDINGS SUMMARILY DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER [RULE] 3:22 CRITERIA.
POINT II
THE COURT'S RULING DENYING [PCR] VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The United States Supreme Court has applied these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.
Defendant contends he was denied effective assistance of counsel because he was "misled" as to the consequences of the plea deal. Specifically, defendant alleges he was never advised that he would have to serve a three-year period of parole supervision following completion of the term of imprisonment. In support of his PCR petition, defendant submitted a certification from his wife stating that the allegations against defendant were false and claiming that she and her children were never in danger.
In denying defendant's PCR petition, the judge gave the following reason for denying the petition:
[Defendant] did not receive gross misadvice. He was told of, and acknowledged, the consequences of his plea on the record. In fact, [defendant] had signed the supplemental plea form which detailed the consequences of his plea as the State correctly points out, but [defendant] also failed to show that he was prejudiced by alleged deficiencies of counsel. . . .
It is contrary to reason that [defendant] would have rejected the very generous plea and sentence he received in this matter. The State's evidence was very strong due to the statements made by [defendant's] step[-]children and the firsthand observation of the police officer who responded to the call, and the State would likely have succeeded at trial.
Also, [as to] the consequences of his plea . . . he acknowledged . . . the supplemental plea form . . . which he had signed [and] which also discusses parole supervision, the [c]ourt also went on the record with that with the defendant.
Thus, in addition to noting that defendant executed the supplemental plea form and acknowledged the consequences of his plea on the record, the judge also pointed out that defense counsel was able to procure a significantly favorable plea deal. Defendant was advised during the plea process of the consequences of his plea, which he acknowledged on the record and in the executed plea form. Moreover, it is undisputed that defendant's conviction after trial would have exposed defendant to a much more severe aggregate sentence of incarceration. The State's proofs at trial (i.e., the testimony of eyewitnesses, the arresting officers, and the physical evidence) would have been overwhelming. Employing an objective analysis it may reasonably be concluded that, given the strength of the State's case, there would be a strong likelihood of conviction.
Defense counsel's alleged failure to advise defendant regarding the consequences of the plea deal is supported only by self-serving assertions and bare allegations. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."). We note that "[a]dequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543. Here, we find counsel's performance with respect to his representation of defendant — which included obtaining a favorable plea agreement — was well within and, arguably, exceeded the minimum standard of effective assistance of counsel. More importantly, we find nothing in the record to support defendant's assertion that he was "misled" with respect to the consequences of his plea.
The record is devoid of any basis to support the finding that counsel's performance was deficient or that he was not functioning in a manner guaranteed by the Sixth Amendment. See State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Therefore, we conclude defendant has not made out a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 463.
Notwithstanding our determination as to the failure to establish counsel's performance was deficient, we briefly address the second Strickland prong. We hold with respect to the second prong, that defendant has failed to demonstrate how any alleged deficiency resulted in a prejudice that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52 (citation omitted).
Finally, we reject defendant's argument the court erred in denying his petition without an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2015). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION