Opinion
DOCKET NO. A-1536-13T2
03-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY MUNIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-06-0994, 09-06-0997 and 09-01-0127. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals the denial of his post-conviction relief (PCR) petition. Finding no merit in his arguments, we affirm.
On August 20, 2009, pursuant to a plea agreement, defendant pleaded guilty to one count in each of the three indictments in question, namely: fourth-degree possession of a prohibited device (a stun gun), N.J.S.A. 2C:39-3(h), in Indictment No. 09-01-0127; second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b)(2), in Indictment No. 09-06-0994; and second-degree being a person not permitted to be in possession of a weapon, N.J.S.A. 2C:39-7(b), in Indictment No. 09-06-0997. The numerous remaining offenses charged in the three indictments were dismissed.
A few months later, prior to sentencing, defendant moved to withdraw his guilty plea. He asserted that approximately fifteen years earlier he threatened and attempted to assault his attorney in another matter and that this other attorney had been a subordinate of the judge when the judge was a practicing attorney. The judge responded that he had no recollection of the circumstances alleged and denied the motion. Defendant then moved to be relieved of his trial attorney, claiming the attorney coerced his guilty plea based on promises that his bail would be reinstated; he also asserted that he understood the plea agreement included the dismissal of other municipal court matters and the imposition of a concurrent sentence in a Union County matter then pending. Among other things, defendant additionally claimed he had been promised a lesser sentence than that permitted by the plea agreement. Based on the assertions made by defendant during the course of the plea hearing — that he was not coerced and no other promises were made — and observing further that defendant had never asserted his innocence of the charges to which he had pleaded guilty, the judge denied the motion.
The same judge presided over all the trial court proceedings.
On December 17, 2009, defendant was sentenced to concurrent ten-year prison terms, subject to five-year periods of parole ineligibility, on the second-degree convictions, and a concurrent eighteen-month term on the fourth-degree conviction. His timely appeal regarding the sentence resulted in this court ordering, on August 2, 2011, a remand with a direction to the trial judge that defendant be resentenced "so as to delete any application of the Graves Act and also to apply discretion and not treat the offense as triggering a mandatory minimum sentence," citing State v. Thomas, 392 N.J. Super. 169 (App. Div. 2007) and State v. Robinson, 253 N.J. Super. 346 (App. Div. 1992).
Defendant was resentenced on December 12, 2011. In adhering to our mandate, the trial judge imposed the same sentence and made adjustments to the jail credits. Defendant appealed. The appeal was again heard on a sentencing oral argument calendar. We affirmed by order entered on July 31, 2012, directing only amendments to the judgments to correct a discrepancy with the sentencing transcript and to adjust the jail credits.
Defendant did not seek our review of the denial of any of his trial court motions, including his motion to withdraw the guilty plea, in either of his direct appeals.
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On August 22, 2012, defendant filed a PCR petition. He argued, among other things, that his trial attorney did not adequately discuss the matter with him prior to entry of his guilty plea and that the attorney failed to move to suppress evidence. The trial judge denied the PCR petition for reasons expressed in a thorough oral decision on April 25, 2013. He recognized that many of defendant's factual assertions were belied by the statements he made during the plea hearing; the judge also observed that defendant's assertion that his trial attorney should have filed a motion to suppress evidence was without merit, since such a motion had been filed but was withdrawn when the guilty plea was entered.
Defendant appeals the denial of his PCR petition, arguing:
I. DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.
II. DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE THE NATURE AND STRENGTH OF HIS CLAIM OUTWEIGH THE STATE'S INTEREST IN PRESERVING THE PLEA.
III. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by the trial judge in his April 25, 2013 oral decision.
(a) Failure to communicate sufficiently with Defendant so he could assist in his own defense.
(b) Failure of defense counsel to pursue a motion to suppress the search warrant.
(c) Failure to argue the trial judge was laboring under a conflict of interest.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION