Opinion
DOCKET NO. A-1166-13T1
04-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON JIMINEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-09-1356. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jason Jiminez appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Pursuant to a plea agreement, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The State agreed to dismiss the seven remaining counts of the indictment and recommend a maximum sentence of eighteen years imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, Megan's Law, N.J.S.A. 2C:7-2, and parole supervision for life, N.J.S.A. 2C:43-6.4.
During his plea colloquy, defendant was placed under oath and questioned by the judge. He acknowledged having reviewed the plea form with counsel, Paul Bergrin, as well as the attorney who that day was standing in for Bergrin. Defendant stated he understood his rights and agreed to waive those rights. The following colloquy occurred:
Judge: [] [A]re you entering a plea of guilty to any charge that requires a mandatory period of parole ineligibility for an extended term?Shortly thereafter, the judge reiterated that the prosecutor was recommending a sentence of eighteen years in prison, and that defendant must serve "eighty-five percent" of his sentence under NERA. Defendant again acknowledged he understood.
Defendant: Yes.
Judge: It says here . . . you are pleading guilty to [] a recommended sentence from the State of eighteen years and that entire period, eighteen years, is subject to the No Early Release Act, correct?
Defendant: Yes.
Judge: So, eight[y]-five percent is mandated because of that Act that you must serve before you are eligible for parole, do you understand?
Defendant: Yes.
After defendant provided a factual basis in which he admitted sexually assaulting an elderly neighbor while armed with a knife, the judge asked if defendant understood he "w[ould] be required to serve eighty-five percent of [his] sentence before [he would] be eligible for parole," and defendant again answered affirmatively.
Defendant appeared for sentencing on December 17, 2007, represented by Bergrin. The judge referenced a letter from defendant in which he indicated a desire to withdraw his plea. However, when questioned directly by the judge, defendant indicated he wanted to "withdraw that motion." Following the arguments of counsel, the judge imposed an aggregate sentence of seventeen years imprisonment, subject to NERA.
The record fails to disclose that defendant filed a direct appeal, but on December 1, 2009, defendant filed a pro se PCR petition. He certified that he was coerced into providing a DNA sample to authorities and his attorney "mishandled" the case due to his own criminal activities and failed to file an appeal. PCR counsel was appointed.
Bergrin was suspended from practice by the Supreme Court, see In re Bergrin, 199 N.J. 309 (2009), and subsequently convicted in federal court and sentenced to life imprisonment. United States v. Bergrin, No. 13-3934, 2014 U.S. App. LEXIS 23818 (3d Cir. N.J. Dec. 18, 2014).
Defendant filed a supplemental certification asserting ineffective assistance of counsel, stating that he asked Bergrin to file motions to suppress the statement defendant gave to police in which he admitted his guilt and the DNA sample defendant provided to the authorities. Defendant again asserted he was coerced into providing his DNA sample, and that if these motions had "been filed and been successful, [he] would not have ple[]d guilty and would have demanded a trial." During oral argument before the PCR judge, who was not the trial judge, PCR counsel focused on "the strongest point" in the petition, specifically a discrepancy in the plea form regarding question seven. That question asked, "Did you enter a plea of guilty to any charges that require a mandatory period of parole ineligibility . . . ?" Defendant circled, "Yes." Subsection "a" of question seven stated:
If you are pleading guilty to such a charge, the minimum mandatory period of parole ineligibility is ___ years and ___ months (fill in the number of years/months) and the maximum period of parole ineligibility can
be ___ years and ___ months (fill in the number of years/months) and this period cannot be reduced by good time, work, or minimum custody credits.Handwritten on the plea form in each set of blank spaces were the numbers, "6" (years) and "4" (months). Based on this, PCR counsel contended that defendant "entered into a plea . . . believing [] he'd be eligible for parole in six years and change." The judge referenced the extended colloquy to the contrary at the time of the plea, but PCR counsel argued that only led "to more confusion" on defendant's part.
PCR counsel further contended an evidentiary hearing was necessary regarding defendant's assertion that, despite his request, Bergrin did not file an appeal on his behalf. PCR counsel also argued that Bergrin should have moved to suppress defendant's statement and the DNA sample. The PCR judge ultimately denied the petition and entered a conforming order on June 7, 2013. This appeal followed.
Before us, defendant contends that he presented a prima facie case of ineffective assistance of counsel (IAC) that entitled him to an evidentiary hearing. Defendant cites three specific points that support his IAC claim — Bergrin "misinformed him as to the consequences of his plea," failed to file the motions to suppress, and failed to file an appeal. We have considered these arguments in light of the record and applicable legal standards. We affirm.
It is well-recognized that a defendant is entitled to an evidentiary hearing "only upon the establishment of a prima facie case in support of post-conviction relief," and "[t]o establish a prima facie case, [a] defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b). It follows that a "defendant must allege specific facts and evidence supporting his allegations[,]" State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
To establish an IAC claim, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "In determining whether defense counsel's representation was deficient, '[j]udicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-319 (2005) (alterations in original) (quoting State v. Norman, 151 N.J. 5, 37 (1997)) (internal quotation marks omitted).
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); see also State v. Echols, supra, 199 N.J. 344, 361 (2009) (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different"). "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
Moreover, the Court has said that
[w]hen 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.'
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
Defendant first contends that trial counsel "affirmatively misinformed" him about the consequences of the plea, as evidenced by the errors in the plea form. We acknowledge that materially misinforming a defendant about the consequences of a guilty plea evidences deficient performance that might rise to the level of ineffective assistance. Id. at 142.
However, in this case, the colloquy during defendant's guilty plea made clear that his potential exposure under NERA was eighty-five percent of the sentence imposed, and the judge emphasized on more than one occasion that, based upon the prosecutor's recommendation, defendant would serve eighty-five percent of eighteen years, much more than six years and four months, as indicated on the plea form.
More importantly, although PCR counsel argued that the plea form proved defendant was misinformed as to the length of the parole ineligibility period, that assertion is unsupported by the record. Defendant filed two certifications, neither of which states that Bergrin or anyone else misinformed him of the period of parole ineligibility or that he understood the period of parole ineligibility to be no more than six years and four months.
Defendant's IAC claim based upon Bergrin's alleged failure to file a direct appeal is also unavailing. As the PCR judge noted, there is nothing in defendant's certifications or in the record presented that supports a finding that defendant asked Bergrin to file an appeal, no supporting documentation indicating Bergrin was retained to file the appeal and no indication of the meritorious issues that could have been presented on appeal.
Furthermore, assuming arguendo that Bergrin's failure to file motions to suppress defendant's confession or DNA sample evidences deficient performance under the Strickland/Fritz test, the record fails to satisfy the second prong of the test. In other words, since "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel[,]" Worlock, supra, 117 N.J. at 625, defendant must demonstrate the reasonable probability of success on the motions to suppress.
Here, defendant has failed to set forth any facts that support the merits of a motion to suppress his DNA sample or his confession to police. We glean from oral argument before the PCR judge that defendant claimed that police lacked "a reasonable and well-grounded basis from which to believe that [he] . . . may have committed the crime," Rule 3:5A-4(b), before they obtained defendant's DNA. But, other than defendant's bald assertion that he was coerced into providing the DNA sample, there is nothing in the record that demonstrates he did not consent to supply the sample.
Similarly, with regard to his confession, defendant obliquely argues in his brief that it is clear from the transcript alone that police questioned him while in custody before actually taking the statement. We recognize that in State v. O'Neill, 193 N.J. 148, 185 (2007), the Court held that "question-first, warn-later interrogation" violated Miranda v. Arizona and our State law privilege against self-incrimination. The statement in this case was taken on September 7, 2006, before O'Neill was decided.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
We need not dwell on whether O'Neill applies here because there is no other factual support in the record for defendant's claim that police violated his rights when they secured the statement. As a result, defendant has failed to demonstrate a reasonable probability that a motion to suppress the confession he gave to authorities would have succeeded if filed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
We choose not to address defendant's separate argument that the PCR judge failed to abide by Rule 1:7-4(a)'s requirement that he state his factual findings and legal conclusions. It is true that the judge did not provide a concise statement of his reasons, however, it is clear from the entire record and the judge's intensive questioning of both PCR counsel and the prosecutor that he fully understood the issues and determined that defendant had failed to carry the burden of presenting a prima facie IAC claim.
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CLERK OF THE APPELLATE DIVISION