Opinion
DOCKET NO. A-2422-10T2
02-05-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBINSON URRUTIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-02-00211.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robinson Urrutia appeals from the June 29, 2010 denial of his petition for post-conviction relief (PCR) without a plenary hearing, but after entertaining oral argument. He claims that he was pressured to plead guilty and misinformed by his plea counsel as to his sentence exposure. Defendant also argues that his counsel failed to investigate possible defenses. After reviewing the record in light of the contentions advanced on appeal, we affirm.
At his plea hearing, defendant had the assistance of a court approved Spanish interpreter. Defendant admitted under oath that on August 21, 2005, he shot at an individual who was leaving a Paterson restaurant, intending to kill him, knowing that other people were in the area and therefore people other than the intended victim were at substantial risk of injury. He admitted that in fact he wounded the intended victim and killed another person standing nearby.
Pursuant to the plea agreement, the charge of murder, N.J.S.A. 2C:11-3(a)(1) and (2), was downgraded to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). He pled guilty to the downgraded charge as well as to first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1). Pursuant to the plea agreement, defendant was sentenced to concurrent terms, the longer being twenty-seven years in prison, subject to the 85% No Early Release Act period of parole ineligibility. N.J.S.A. 2C:43-7.2
Defendant appealed only the length of his sentence, which we affirmed by order on direct appeal. State v. Urrutia, No. A- 5825-07 (App. Div. May 27, 2009), certif. denied, 200 N.J. 369 (2009).
Defendant raises the following issues on appeal:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE UNDER R. 3:22 POST-CONVICTION RELIEF CRITERIA THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III: THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
The legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).
A defendant claiming that his attorney was ineffective in his representation "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.'" Parker, supra, 212 N.J. at 279 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'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; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing Fritz, supra, 105 N.J. at 58).
Additionally, a defendant must demonstrate, in the context of a guilty plea, that he would not have pled guilty but for his counsel's defective representation. State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Defendant argues that his attorney told him that, pursuant to the plea agreement with the State, he could receive only twenty years and not twenty-seven years in prison. He maintains that even with the assistance of an interpreter in court he did not understand the proceedings.
While the plea form signed by defendant indicates incorrectly on the top of page one that the maximum sentence on each charge is twenty years, he does not mention this discrepancy nor argue that it formed the basis for his confusion. In response to item number thirteen, "Specify any sentence the prosecutor has agreed to recommend[,]" the handwritten response states "27 years in N.J.S.P. with 85% before parole eligibility for count 1, will run concurrent with sentence of 15 years in N.J.S.P. with 85% before parole eligibility for count two."
The maximum sentence for aggravated manslaughter is thirty years. N.J.S.A. 2C:11-4(c).
At the plea hearing, in response to the judge's question, "And throughout these negotiations you've had the benefit of an interpreter who would translate from English into Spanish for you and from Spanish into English for the benefit of [counsel]. Is that correct?", defendant responded "Yes." Defendant acknowledged that the plea form had been translated by the interpreter from English to Spanish for his benefit.
At the plea hearing, both the State once and the judge on two occasions, delineated the terms of the plea agreement including the State's recommendation of a twenty-seven year sentence. Defendant has no support for his contention that he did not understand that he was facing a twenty-seven year sentence.
Defendant's claims that his attorney did not investigate unspecified defenses and pressured him to plead guilty are also without support in the record. Defendant must establish a prima facie claim of ineffective assistance before an evidentiary hearing should be granted. State v. Preciose, 129 N.J. 451, 462-63 (1992). "Bald assertions" are insufficient for this purpose. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
The judgment of conviction cites the wrong statute for the initial charge of murder and incorrectly describes one of the final charges as murder rather than aggravated manslaughter.
We remand to correct the judgment of conviction and otherwise affirm.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION