Opinion
DOCKET NO. A-3524-13T1
06-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DETRICK DIXON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-04-1092. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Detrick Dixon appeals from an August 6, 2013 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
On April 13, 2009, the Essex County grand jury charged defendant in an eleven-count indictment. The indictment charged three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a, against one child. The indictment separately charged defendant with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4a, against another child.
On January 19, 2010, defendant plead guilty to one count of first-degree aggravated sexual assault. In his plea colloquy he admitted to engaging in sexual intercourse with a nine-year old child. As part of the plea agreement, the State agreed to recommend a twelve year sentence, subject to eight-five percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. At sentencing, the trial judge found aggravating factors three, six, and nine, did not find any mitigating factors, and imposed the recommended sentence. Defendant was also subject to parole supervision for life, and required to register as a sex offender under Megan's Law, N.J.S.A. 2C:7-1 to -19. Defendant did not file any appeal from his conviction.
In January 2012, defendant filed a pro se PCR petition. On October 8, 2012, he amended his initial petition, alleging that his trial counsel was ineffective because he failed to adequately investigate before trial, failed to argue that defendant's sentence should be mitigated due to mental health issues, and coerced defendant to pleading guilty.
On August 6, 2013, Judge Martin G. Cronin denied defendant's petition for PCR without a hearing and stated his reasons on the record. He held that defendant failed to establish a prima facie case, because defendant's allegations were merely conclusory. Additionally, the trial court rejected defendant's claim of coercion, noting that defense counsel has an ethical obligation to assess a defendant's case and communicate its assessment to a defendant. The judge emphasized that defendant failed to offer anything to overcome the strong presumption that his plea was not coerced based upon his sworn representations in open court. Finally, as to sentencing, the court determined that defense counsel's performance during sentencing was not deficient as he had raised the issue of defendant's mental health before the trial court, but that the trial judge simply did not find it as a mitigating factor. On appeal, defendant raises the following contentions:
[I] THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AN EVIDENTIARY HEARING BECAUSE THE COURT IMPROPERLY RESOLVED ALL MATERIAL FACTUAL DISPUTES PRESENTED USING ONLY THE DOCUMENTARY RECORD, WHEN SAID FACTUAL DISPUTES INVOLVED EVENTS ENTIRELY OUTSIDE THE RECORD.
A. The Standard of Review Is De Novo.
B. Defendant Established Prima Facie Ineffective Assistance Of Counsel When He Alleged That His Trial Counsel Failed To Investigate His Case, Coerced Him Into Pleading Guilty, And Then Failed To Argue For Mitigating Factors At The Time Of Sentencing.
[II] THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes New Jersey's "analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014) (citing State v. Afanador, 151 N.J. 41, 49 (1997)). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. This right to assistance of counsel includes "the right to effective counsel." State v. Cottle, 194 N.J. 449, 466 (2008) (citing State v. Norman, 151 N.J. 5, 23 (1997)).
Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
In considering ineffective assistance of counsel claims concerning a guilty plea, defendant must satisfy a modified Strickland standard:
When a guilty plea is part of the equation, . . . a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 1036, 1039, 145 L. Ed. 2d 985, 997, 1001 (2000)).
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (second alteration in original) (quotations omitted).]
An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.
"[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." Jones, supra, 219 N.J. at 312.
Having considered the record in light of the applicable legal principles, we conclude that defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Suffice it to say that defendant failed to establish a prima facie case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 462-63 (holding that to establish a prima facie case a defendant must demonstrate a reasonable likelihood of success on the merits).
As for defendant's claim of coercion, he declared under oath in court when entering his plea that he entered into the plea voluntarily and was not coerced. Representations a defendant makes under oath at the plea hearing constitute a "formidable barrier" for the defendant to overcome. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal[.]") Defendant has not provided a certification setting forth with particularity any facts that cast doubt on his previous testimony. Jones, supra, 219 N.J. at 312. We conclude that defendant's bald assertions in the current PCR petition are insufficient to overcome his solemn declaration under oath in open court.
As for defendant's remaining contentions, the sentencing transcript shows that defense counsel raised the issue of defendant's mental health before trial court, demonstrating that defendant's contention on this issue is completely without merit. Additionally, defendant failed to disclose the name of any potential witness or the information to which any witness would have testified if discovered. Such bald allegations are insufficient and fail to establish a prima facie case of ineffective assistance. Cummings, supra, 321 N.J. Super. at 170.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION