Opinion
DOCKET NO. A-1879-13T1
04-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT FONTANEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-12-3257. Joseph E. Krakora, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert Fontanez appeals an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
On December 6, 2010, a Camden County grand jury returned an indictment charging defendant and co-defendant, Arfine White, with the following crimes: first-degree armed robbery of T.A., N.J.S.A. 2C:15-1(a)(3) (count one); conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(3) (count two); second-degree burglary of the premises of T.A., N.J.S.A. 2C:18-2(a)(1) (count three); third-degree theft of money from T.A. in excess of $500, N.J.S.A. 2C:20-3(a) (count four); third-degree criminal restraint of T.A., N.J.S.A. 2C:13-2(a) (count five); fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e) (count six); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven); and third-degree aggravated assault of T.A., N.J.S.A. 2C:12-1(b)(2) (count eight).
We refer to the victim of these crimes by initials only, in order to preserve his privacy.
Discovery materials provided by the State reveal that on June 18, 2010, Collingswood police responded to an apartment complex where they met with T.A., who stated that two men had earlier kicked in his door and robbed him at gunpoint. He said they bound his hands with duct tape, threatened and beat him with a handgun, and took $3000 from him following their physical assault. T.A. also provided police with physical descriptions of his assailants.
At some point later that day, defendant and White were detained at a local diner, and T.A. identified them as the individuals who had assaulted and robbed him. When they were arrested, defendant had $1136 in his possession and White had $1512. Defendant later gave a statement to Collingswood police admitting that he and White, together with a third man, planned to take money and controlled dangerous substances (CDS) from T.A., and that he had punched and kicked T.A. prior to leaving the apartment with cash they had taken from T.A. Defendant also accompanied a police officer to an apartment complex in Collingswood and showed him the handgun used in the robbery. Defendant asserted that White had wielded the handgun during the robbery of T.A., but that he had no prior knowledge that White had a weapon that day.
We provide this brief summary of the police reports because the information therein was available to the PCR judge, who referenced the discovery in his opinion denying defendant's petition. Further, the strength or weakness of the State's evidence is obviously a relevant consideration in evaluating whether there is a "reasonable probability" that defendant would have rejected the plea bargain and elected to go to trial but for counsel's alleged deficient performance. A defendant must separately prove that "there is a reasonable probability that, but for counsel's errors, the defendant would . . . have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012); State v. Maldon, 422 N.J. Super. 475, 482 (App. Div. 2011). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
On March 30, 2011, defendant and his counsel, an experienced public defender, appeared before the Law Division for the purpose of entering a plea. Initially, the State offered to accept defendant's plea of guilty to second-degree burglary, in return for which the State would dismiss the remaining counts in the indictment, and defendant would receive a sentence of six years in prison, subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, the State agreed that defendant's sentence would run concurrent to any custodial sentence defendant received on his plea to fourth-degree resisting arrest by flight on another indictment.
Defendant confirmed under oath that he understood and accepted the plea offer; that he had an opportunity to review the charges himself before accepting the plea; that he discussed the plea with his lawyer; and that his lawyer had answered all his questions about the charges. He added that he was satisfied with the advice and service he had received from counsel and that he had not been threatened or coerced, or promised anything other than what had been said on the record, in connection with the plea.
In response to questioning by the court, defendant acknowledged reviewing the plea form with his counsel, initialing the first three pages of the form, signing the fourth page, and voluntarily entering into the plea agreement. Defendant testified that he reviewed and signed the supplemental plea form for NERA cases and answered "yes" to the question of whether he understood that the court was required to impose a three-year period of parole supervision.
In setting forth the factual basis for the plea, defendant stated that he and co-defendant had traveled to T.A.'s residence to "buy some drugs." However, defendant said that they had not "forced" their way into the apartment, but that they had been "lead [sic] into the apartment" by T.A. Defendant explained that he and co-defendant had "pushed [their] way in and stayed longer . . . than [they] were supposed to stay," but his attorney at that point said he would not proceed further because the factual predicate for burglary "might be a problem."
After going off the record several times, defense counsel advised the court and the State that defendant conceded "there was a robbery, but the entrance wasn't illegal . . . ." The State thereupon offered to amend the first count of the indictment to charge defendant with second-degree robbery, with the remainder of the plea to remain "the same." Defendant accepted the change and, still under oath, stated that he wanted to proceed with the plea, as amended, and that he understood "exactly what took place" and required no further time to confer with his lawyer. He added that, "I understand everything" and that his lawyer "went over it more than once, so I totally understand everything."
Thereafter, defendant continued with his factual basis for the plea. He said that upon entering T.A.'s apartment, co-defendant pulled out a handgun and pointed it at T.A. Defendant further said that while he had not known co-defendant had the weapon, he knew the weapon at that point was "there for the use of force or the threat of force to commit the robbery." While the weapon was pointed at T.A., defendant collected a quantity of CDS that was "scattered about" in T.A.'s apartment, and then he and co-defendant fled.
The court found that defendant provided an adequate factual basis for the entry of his plea, and that he entered it knowingly, intelligently, and voluntarily. The court also found that defendant understood the range of sentences that may be imposed and accepted defendant's guilty plea. The court then scheduled sentencing.
On April 29, 2011, defendant was sentenced on the second-degree robbery charge to a custodial term of six years, in accordance with the plea agreement. The court noted that defendant had prior adjudications in the Family Part, as well as two convictions in municipal court and a prior criminal conviction for unlawful possession of a weapon. The court found that aggravating factors three — the risk of reoffending — and nine — the need for deterrence — applied, and that there were no mitigating factors. The sentence, which is within the second-degree sentencing range, N.J.S.A. 2C:43-6(a), was imposed subject to the requirements of NERA, and the court ordered that defendant serve eighty-five percent of the sentence without eligibility for parole and that he serve a three-year period of parole supervision upon his release from prison.
At sentencing, the State requested that the court order forfeiture of the money found in defendant's possession at the time he was arrested. However, defense counsel objected and stated that defendant claimed the money was his and, accordingly, the court set the matter down for an evidentiary hearing.
That hearing was scheduled for August 12, 2011. On that date, however, defendant withdrew his objection to forfeiture. Defendant at no time stated that he wished to withdraw his plea and did not voice any dissatisfaction with counsel. Also, he did not file a direct appeal.
Nonetheless, on December 19, 2011, defendant filed a pro se PCR petition in which he alleged, for the first time, that his lawyer was deficient because he allegedly failed to "investigate" or undertake any "real legal work" on his behalf. The court appointed counsel to represent defendant, and counsel filed a supplemental brief in support of defendant's petition for PCR.
The impetus for defendant's PCR petition was the fact that co-defendant was offered and accepted the same plea bargain as that extended to and accepted by defendant, despite co-defendant's more extensive record and his use of a handgun to facilitate the robbery of T.A. Indeed, the brief filed in support of the PCR petition addressed this issue at length.
The PCR judge denied defendant's petition, and explained, in part, that:
[A]n experienced defense attorney will know immediately that Mr. Fontanez is a very difficult case to beat. His essential confession to the police really makes the case difficult and while it's true that the victim may very well have been a drug dealer and the victim may have decided by the time the case came up for trial to flee to Bolivia or to make himself unavailable, that's a very big risk for a defendant to take because remember once the case goes to trial the victim is available, the state is
not going to be all that inclined to [afford] him downgrades to second degree robberies.
At that point first degree is on the table and a young man like Mr. Fontanez is literally facing 60-plus years mandatory in prison under NERA for a first degree robbery. . . . [W]hen I was a young man I was an assistant prosecutor, we didn't have the No Early Release Act. People that got sentenced to 40 years in prison got paroled after five years, six years, and the legislature in response to that decided to make — to toughen for certain first degree crimes these 85 percent requirements and robbery, of course, both first and second degree[.]
So while when Mr. Fontanez compares his sentence to the co-defendant, I agree that he may feel a bit disgruntled that the co-defendant got the same sentence, but compared to others in the system who are confronted with first degree robbery charges who in essence confessed to the crime, confessed to the crime. Mr. Fontanez, I'm sure, tried to give an exculpatory version and it may very well have been accurate. The victim — and by the way there is some back and forth. The victim says basically it was a break in. Mr. Fontanez says they were let in. There was some of that, but essentially Mr. Fontanez'[s] own words made it very, very difficult to beat a first degree and his admitted conduct to the victim in assaulting him, not with the gun, but with his hands presumably, made any type of jury sympathy very, very difficult.
So when assessing the plea agreement on that basis the downgrade was very, very favorable to Mr. Fontanez even though the co-defendant got the same deal.
Addressing the sentencing issue, the PCR judge observed that the plea bargain negotiated by defense counsel "literally save[d] defendant decades upon decades of incarceration" and he dealt with defendant's complaint that counsel had not filed any pretrial motions by explaining that defendant failed to demonstrate that such motions had a reasonable chance of success. This appeal followed.
II.
Defendant raises the following arguments in support of his appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR PERMITTING DEFENDANT TO PLEAD GUILTY TO ROBBERY WITHOUT ADVISING HIM THAT THERE WAS INSUFFICIENT EVIDENCE OF THE CHARGE AND ALLOWING HIM TO PLEAD GUILTY WITHOUT A SUFFICIENT FACTUAL BASIS.
POINT II: TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO ADEQUATELY REPRESENT THE DEFENDANT'S INTEREST AT SENTENCING BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS AND BY FAILING TO DEMONSTRATE THE INAPPLICABILITY OF CERTAIN OF THE AGGRAVATING FACTORS FOUND BY THE COURT.
POINT III: TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO ADEQUATELY REPRESENT THE DEFENDANT'S INTEREST DURING THE FORFEITURE HEARING.
POINT IV: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE POST-CONVICTION RELIEF PETITION.
The foregoing excerpt from defendant's brief is reproduced as is, with all flaws. --------
For the reasons set forth below, we are unpersuaded by these arguments and affirm.
Typically, we review the PCR court's findings of fact under a clear error standard, and conclusions of law under a de novo standard. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However, where, as in this case, "no evidentiary hearing has been held, we 'may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in original) (quoting Harris, supra, 181 N.J. at 421), certif. denied, 206 N.J. 64 (2011).
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid.
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland, as adopted in State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The "defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid.
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
In the context of a PCR petition challenging a guilty plea based on the ineffective assistance of counsel, the second prong is established when the defendant demonstrates a "reasonable probability that, but for counsel's errors, the defendant would not have decided to forego the plea agreement and would have gone to trial." McDonald, supra, 211 N.J. at 30 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)).
Defendant argues that counsel was ineffective because he facilitated defendant's plea to second-degree robbery without a sufficient factual basis and without "sufficient evidence to support the charge." Defendant further alleges generally that counsel failed to "investigate" the case and "could have negotiated a better plea." We find that these arguments fail to meet either prong of Strickland, and thus are meritless.
Initially, we observe defendant's argument that his counsel "could have negotiated a better plea" if he had undertaken an "investigation" is a classic example of the types of "bald assertions" and conclusory allegations that fail to meet his obligation to allege "facts sufficient to demonstrate" that counsel's representation fell below an objective standard of reasonableness. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Further, the record before the Law Division shows defense counsel was in command of the facts alleged by the State, and that he was faced with a case in which the victim positively identified the perpetrators of a vicious home invasion robbery within hours after the criminal event and defendant gave a statement to police admitting to punching and kicking the victim while co-defendant menaced the victim with a handgun. Defendant has failed to even articulate the investigatory steps his attorney should have undertaken that would have resulted in a more favorable plea bargain.
Also, as the PCR judge properly concluded, defendant has failed to demonstrate a reasonable probability that if he had received different advice about the nature of the charges against him, he would have rejected the State's plea offer and gone to trial on the pending indictment. We find that defendant has failed to establish prejudice, since the record reflects that, even when advised by the court about the terms of the plea, his attention was focused on taking advantage of the lesser prison sentence that he had bargained for, and not on any other consequences.
On appeal, defendant does not plausibly suggest that he had any defense to the charges, or any rational prospect of avoiding conviction. Defendant's bald assertion that he would have rejected the plea offer and stood trial lacks any credible factual support in the record.
Accordingly, defendant has failed to meet the second prong of the Strickland analysis by demonstrating the "reasonable probability" that he would have gone to trial, rather than enter a plea, but for counsel's substandard performance of his duties. It is fatuous to suggest that defendant would have elected to go to trial in these circumstances and risked a prison term of forty years or more, if convicted, when he was offered a plea to a second degree offense with a six year limit, coupled with a year of jail credits. This is especially true where, as here, defendant would have had to concede his presence at the scene of the crime, if he testified, and that he stole CDS from T.A.'s apartment while co-defendant covered T.A. with a handgun.
Defendant further claims that his counsel was deficient in failing to "advocate vigorously" for a lesser sentence than the bargained-for six-year NERA sentence. We find this contention, as well as defendant's other arguments, to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Finally, defendant argues that he was entitled to an evidentiary hearing because he established a prima facie case of ineffective assistance of counsel. However, we agree with the PCR judge that defendant did not meet his burden, and therefore an evidentiary hearing would not have assisted the PCR court. The PCR court correctly concluded that an evidentiary hearing was not warranted as defendant failed to satisfy the second prong of the Strickland/Fritz test. See Preciose, supra, 129 N.J. at 462-63.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION