Opinion
DOCKET NO. A-3152-13T4
04-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDRE ZEIGLER, Defendant-Appellant.
Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Driscoll, on the brief). Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosenkrans, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-04-1499. Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Driscoll, on the brief). Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Rosenkrans, of counsel and on the brief). PER CURIAM
Defendant Andre Zeigler appeals from a December 3, 2013 order denying his petition for post-conviction relief (PCR) without a plenary hearing. Defendant claims that the PCR judge erred in denying him a hearing to review his claims that his attorney was ineffective, that he should have been permitted to withdraw his plea of guilty to second-degree aggravated sexual assault, N.J.S.A. 2C:14-2(c)(1), and that the PCR judge should be reversed for citing to an unpublished appellate division opinion. We reject defendant's arguments and affirm.
Defendant was indicted for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a). He pled guilty to an amended charge of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), in exchange for the State dismissing the other charges in the indictment.
Defendant admitted the following facts:
[THE COURT] Sir, in count four of this indictment you['re] charged that on September 28th, 2006 in the Township of Irvington you did commit a sexual assault upon one [the victim]. Do you know who [the victim] is, sir?
A Yes.
Q What happened with regard to [the victim]?
A We had sex and she didn't -- she didn't want to.
Q By saying you had sex what happened sir, what did you do?
A I -- I didn't stop when she told me to.
Q You didn't stop, what, kissing her?
A No. Sexual intercourse.
Q By sexual intercourse, you mean you placed your penis in her vagina against her will, sir, is that what you're telling me?
A Yes.
Q And you did this by force?
A Yes.
We do not use the name of the victim to preserve her confidentiality. R. 1:38-3(c)(12). --------
Several months later, before sentencing, defendant sent a letter to the judge stating that he was not guilty of the crime charged. Treating the letter as a motion to withdraw the guilty plea, the judge denied defendant's motion on the record. The judge sentenced defendant to eight years in prison subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, parole supervision for life, N.J.S.A. 2C:43-6.4(a), and Megan's Law requirements, N.J.S.A. 2C:7-1 to -19.
Defendant's appeal was heard in June 2010 on the Excessive Sentencing Oral Argument calendar. See Rule 2:9-11. In addition to his sentencing argument, defendant's counsel argued for a remand for a redetermination of the motion to withdraw the guilty plea in light of State v. Slater, 198 N.J. 145 (2009), which clarified the law regarding such motions. We affirmed. State v. Ziegler, A-002664-08 (App. Div. June 10, 2010).
The PCR judge denied the ineffective assistance claim, holding that it was conclusory and that the motion to withdraw was procedurally barred, and that in the alternative it would fail under the Slater factors. See Slater, supra, 198 N.J. at 157-58. Defendant now appeals from that decision, raising the following issues on appeal:
POINT I: THE PCR COURT ERRED IN FINDING THAT THE ISSUE OF THE MOTION TO WITHDRAW THE GUILTY PLEA WAS BARRED BECAUSE OF PRIOR ADJUDICATION R. 3:22-5.
POINT II: THE PCR COURT ERRED IN ITS CITATION OF AN UNPUBLISHED APPELLATE OPINION IN DENYING THE PETITION R. 1:36-1. (NOT RAISED BELOW)
POINT III: THE COURT ERRED IN ITS ANALYSIS OF THE FOUR FACTORS IN STATE v. SLATER, 198 N.J. 139 (2009).
POINT IV: THE COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.
I
Petitions for PCR are governed by Rule 3:22-5, which states that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . or in any appeal taken from such proceedings." Thus, we ordinarily reject claims that were raised and rejected on direct appeal, only to be later resurrected in the PCR proceedings. State v. Franklin, 184 N.J. 516, 528 (2005).
Here, the trial judge explicitly considered and rejected defendant's motion to withdraw his guilty plea. Defendant subsequently raised the issue on direct appeal, drawing our attention to Slater. We considered his argument and affirmed. The PCR judge properly held that the claim was therefore barred, although the judge did review the four Slater factors yet again. See Slater, supra, 198 N.J. at 157-58. Although Slater was decided while defendant's case was pending on direct appeal, it "did not represent a new rule of law, but instead 'distill[ed] common principles from [the earlier defined] body of law in an effort to help trial judges assess plea withdrawal motions.'" State v. Hayes, 205 N.J. 522, 541 n.7 (2011) (alterations in original) (quoting Slater, supra, 198 N.J. at 157). The PCR judge correctly determined that this issue was barred on a post-conviction application because we had already ruled upon it on direct appeal.
II
Defendant also argues that we should reverse because the PCR judge cited to one of our unpublished opinions as "persuasive, but not controlling" authority. The judge gave counsel copies of the opinion and neither attorney objected to the unorthodox practice. Thus this issue is raised as plain error. R. 2:10-2 (stating that "the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court"). Rule 1:36-3 provides that "except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any judge." The PCR judge's reference to an unpublished case was thus not authorized by the Rules. Nonetheless, defendant cannot demonstrate how the use of the unpublished case harmed him and we therefore deem it to be harmless error. See State v. Macon, 57 N.J. 325, 335-36 (1971).
III
Finally, defendant argues that his plea counsel was ineffective and that the PCR judge did not analyze his request to withdraw his guilty plea properly. Given our ruling that defendant's Slater claim was barred, his argument that the PCR judge erred in his Slater analysis is without sufficient merit to require further discussion. R. 2:11-3(e)(2).
Defendant contends that he should have been given an evidentiary hearing because he established a prima facie ineffective assistance of counsel claim. A claim of ineffective assistance of counsel requires satisfaction of the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The defendant must show (1) "that counsel's performance was deficient," and (2) that he or she was prejudiced. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To show prejudice in the context of a guilty plea, a defendant must demonstrate "a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." State v. O'Donnell, 435 N.J. Super. 351, 369-70 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
Whether a defendant receives an evidentiary hearing on the issue depends on:
the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.If a defendant establishes a prima facie case for an ineffective assistance claim, "an evidentiary hearing should ordinarily be granted." State v. Porter, 216 N.J. 343, 354 (2013). A hearing is not required if the defendant only makes bald assertions or vague, conclusory or speculative allegations. Id. at 355.
[R. 3:22-10(b).]
Defendant argues that counsel was defective for failing "to investigate and interview eye witnesses and alibi witnesses." Defendant asserts in his brief that plea counsel failed to interview three witnesses whose identity was known, and if interviewed those witnesses "would state that the actions and demeanor of [the victim] were inconsistent with that of a person being abducted against her will and taken by force in defendant's car." Thus, he appears to argue that these witnesses would have furnished a defense to the charge of kidnapping, not the sexual assault charge to which he pled guilty.
In any event, as the PCR judge stated, defendant did not provide "affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification" to "assert the facts that an investigation would have revealed." Porter, supra, 216 N.J. at 355 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Because a prima facie case requires that a "predicate for a claim of relief be made by an affidavit or certification," Ibid. (quoting R. 3:22-10(c)), and defendant failed to provide such documentation, the PCR judge properly did not hold an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION