Opinion
DOCKET NO. A-4433-12T4
04-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PEDRO JORGE, a/k/a PETER JORGE, Defendant-Appellant.
The Choi Law Group LLC, attorneys for appellant (Louis M. DiLuzio, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-01-00105. The Choi Law Group LLC, attorneys for appellant (Louis M. DiLuzio, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Pedro Jorge, appeals from the May 22, 2013 order denying his petition for post-conviction relief (PCR). We affirm.
On January 21, 2010, a Bergen County Grand Jury returned Indictment No. S-0105-10 against defendant for second-degree possession of a weapon, a handgun, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count I); second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (Count II); third-degree aggravated assault with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2) (Count III); fourth-degree aggravated assault pointing a firearm, contrary to N.J.S.A. 2C:12-1b(4) (Count IV); second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (Counts V and VI); third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (Count VII); fourth-degree possession of a prohibited device (hollow nose bullets), contrary to N.J.S.A. 2C:39-3f (Count VIII); and third-degree possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (Count IX).
Defendant was initially represented by two attorneys from one law firm, who had discussions with an assistant prosecutor about a plea disposition of his charges. The prosecutor's office first offered a plea bargain involving a maximum of six years in prison with three years of parole ineligibility, but eventually agreed that defendant could plead guilty to Count I, unlawful possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. That charge is a Graves Act offense, which carries a mandatory term of five years imprisonment with three years of parole ineligibility.
Despite that plea offer, defendant and defendant's counsel still hoped to get a lesser sentence of three years with one year of parole ineligibility. Such relief is only available to someone with no prior convictions, and it requires a recommendation from the prosecutor's office. See N.J.S.A. 2C:43-6.2. The assistant prosecutor refused to recommend such a waiver of the mandatory minimum, but agreed to allow defense counsel to seek one directly from the "front office." Thus, the assistant prosecutor agreed to allow the plea form, which was signed by defendant, to include language that a lesser sentence could be sought by defendant.
By the time of the plea hearing on February 7, 2011, defense counsel still had not spoken to the Prosecutor or anyone in the "front office." At the hearing, the judge who took the plea warned defendant of the finality and consequences of his decision to plead guilty. In that regard, it is undisputed that defendant's attorneys wrongly advised him that the Prosecutor would probably agree to the lesser sentence after a plea was entered. At later hearings, it became obvious that none of the attorneys who represented the defendant really understood the Graves Act procedures for waiver of the mandatory minimum. They failed to advise him that by entering his plea without the deal he sought in place, and without filing a motion for a waiver with the Assignment Judge, his chances of getting the lesser sentence were in fact almost non-existent.
The first sentencing hearing was held on March 25, 2011. By that time, defendant hired a third lawyer from a new firm to act as co-counsel. Counsel appearing at the hearing advised the court on the record that the new lawyer had spoken to the Prosecutor, and the Prosecutor agreed not to oppose a lesser sentence of three years with one year of parole ineligibility. However, the assistant prosecutor contradicted this statement, and noted that the Prosecutor's position was that it was too late to do anything after the plea was already entered. At that point, the hearing was adjourned until May, and the judge provided defense counsel with the Assignment Judge's information so that counsel could request a change in the mandatory minimum.
At the rescheduled hearing on May 6, 2011, the assistant prosecutor made it clear that the State did not consent to a lesser sentence. In fact, she pointed out that although defendant had no prior convictions, he had been given PTI on a previous occasion for a weapon possession charge, and had not learned his lesson from that event. No motion or formal application had been filed with either the Prosecutor or the Assignment Judge by defense counsel seeking a waiver of the mandatory minimum sentence. Based on the plea agreement, defense counsel argued at the sentencing that defendant deserved a lesser sentence than the mandatory minimum without reference to any legal support for his argument. This argument was rejected by the court, and defendant was sentenced to five years in prison with three years of parole ineligibility.
Thereafter, defendant filed a petition for PCR contending that he pled guilty based on inaccurate assurances from his attorneys that he could get a sentence of three years with a one-year parole bar. He alleged that he was misinformed by his counsel who did not provide him with effective assistance.
At the first PCR hearing on October 25, 2012, the judge, who had been the sentencing judge, heard testimony from only defendant's third lawyer. He testified that he was not hired until after the plea, and that between the plea and the sentence, he had spoken directly to the Prosecutor who told him on two occasions that he would consider "taking the case out of the Graves Act" so his client would not be sentenced to a three year parole bar. The judge stated he would never have accepted the plea containing the misleading and meaningless statement in it that defendant could still seek a lower sentence after the plea. Thus, the judge granted defendant's petition, and vacated the plea and the sentence. At that point, defendant had served eighteen months of his sentence and was released on bail pending appeal. The State appealed and requested a plenary hearing.
On December 3, 2012, we denied the State's appeal. On March 21, 2013, the Supreme Court reversed and remanded for a plenary hearing in the trial court. At the plenary hearing, the transcript of the prior testimony from the first PCR hearing and the plea transcript were made a part of the record. Additionally, the testimony of the first two defense attorneys was taken. Defendant did not testify, nor did anyone from the prosecutor's office. The same judge, who previously granted defendant's request for PCR, reversed his earlier decision and denied defendant's petition. The judge again found defendant was deprived of effective assistance of counsel, but now found that the mistakes made by counsel would not have changed the outcome.
The judge found defendant understood throughout the process that if he did not get the reduced sentence, he would be sentenced to five years in prison with three years of parole ineligibility. The judge reinstated the conviction and sentence, but stayed enforcement of the sentence, until this appeal could be heard. Here, defendant raises the following argument:
POINT ONE: DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. We review fact-findings for clear error and accord deference to credibility determinations. Ibid.
In Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698). In the context of a plea agreement, defendant must satisfy the second prong of Strickland by establishing a reasonable probability that, "but for counsel's errors, [he] would not have pled guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (citation and internal quotation marks omitted).
We find in this case that the actions of defense counsel fell below objective standards of reasonableness, and that the first prong of the Strickland test was met. The second prong, however, is more troublesome.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
Although there was a bald assertion in his certification that defendant would not have accepted the plea if he had to serve a minimum of three years without parole, he did not provide testimony at the PCR hearing to support this assertion. The evidence demonstrated that at the plea hearing and on the signed form, defendant was advised that while his counsel may have believed he would get a lower sentence, if he did not get it for any reason, he would be sentenced to five years with a three year parole bar. He acquiesced to this on the record. See DiFrisco, supra, 137 N.J. at 457.
Defendant was facing multiple charges. He had previously been given PTI on a weapons charge. He admitted his guilt in this case to a crime that carries a possible sentence of ten years with a five year period of parole ineligibility. It is not credible that he would have refused this very reasonable plea offer under these circumstances, even if there was no possibility of a lower sentence. We find that defendant has not proven the second prong of the Strickland test.
We affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION