Opinion
DOCKET NO. A-1349-13T4
11-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH A. AMBROSIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-01-0024. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth H. Smith, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Defendant Joseph A. Ambrosia appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On January 16, 2007, defendant was indicted for first-degree robbery of a CVS store (count one), and second-degree robbery of a Cape Savings Bank branch (count two). On June 27, 2007, he signed a plea form pleading guilty to an amended count one of second-degree robbery and count two second-degree robbery. The State agreed to recommend that defendant's prison term on both counts be concurrent and not exceed twelve years, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
To sentence defendant greater than ten years for a second-degree offense, the State would move for a mandated extended term under N.J.S.A. 2C:43-7.1(b)(1) due to defendant's prior offenses. --------
At the next day's plea hearing, in defendant's presence, trial counsel expressed his frustration to the court regarding defendant's apparent change of mind to accept the plea offer based upon the belief that the State could offer a lesser prison term. After a brief recess to further consult with his counsel, defendant decided to accept the plea offer. Upon his return to the courtroom, he acknowledged under oath that he committed two second-degree robberies and that he knowingly, freely, and voluntarily waived his right to trial. He also indicated that he had sufficient time to speak to his attorney. Furthermore, in response to the judge's inquiry, he stated that he understood that, under the terms of the plea agreement, he would be serving a twelve-year sentence, and that, pursuant to state law (NERA), he had to serve eighty-five percent of a twelve-year prison term and would be under parole supervision for three years following his release.
At defendant's sentencing on August 28, 2007, the State's motion for an extended term was granted. Trial counsel then argued for a ten-year sentence instead of the recommended twelve years based upon defendant's drug habit causing him to commit the robberies. Given the opportunity to address the court, defendant stated, "I would just like to apologize to the courts and let everybody know that I - - I fully take responsibility for what I've done this time and in the past. And I know I'm looking at a lot of time. I just ask you to consider lowering it . . . ." Defendant did not express any misunderstanding of the plea agreement. The judge rejected defendant's request for a more lenient sentence and adhered to the plea agreement by sentencing defendant to twelve years on count one concurrent with seven-and-one-half years on count two, with the sentences being subject to NERA.
Defendant did not file a direct appeal. However, almost five years later, on May 11, 2012, he filed a pro se motion for a change or reduction of sentence, which was converted into a petition for post-conviction relief (PCR). He was assigned counsel, who subsequently filed the appropriate verified petition and brief. Defendant contended he was provided ineffective assistance of counsel because his trial counsel: gave him misinformation concerning his prison term; failed to advise him regarding the period of supervised release under NERA; and failed to present arguments in favor of a lesser sentence.
On June 18, 2013, following oral argument, the PCR court rendered a bench decision that defendant did not establish a prima facie case of ineffective assistance of counsel and denied his PCR claim without an evidentiary hearing. The court determined that the record did not support defendant's contentions. Specifically, there was no indication that defendant had "any misunderstanding as to the plea agreement and the sentence recommendations within that plea agreement." In addition, trial counsel vigorously argued the aggravating and mitigating sentencing factors to advocate for a sentence less than the plea agreement. The court also noted that counsel negotiated a first-degree robbery charge to second-degree robbery, and the twelve-year NERA term was favorable in light of defendant's mandated extended term as a repeat violent offender.
Defendant appeals from the denial of his PCR petition, raising the following points for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO
THE TRIAL COURT IMPROPERLY DENIED [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING.
We begin with some well-known principles regarding appeals of PCR petitions. "Our standard of review is necessarily deferential" to the factual findings of a PCR court so long as the findings are supported by sufficient credible evidence in the record. State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). However, we do "not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo." Id. at 540-41 (citations omitted).
In order to establish a PCR claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth 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). The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d 693. Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. To prove this element, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 699. Both prongs of the Strickland-Fritz standard must be satisfied to obtain post-conviction relief. State v. Parker, 212 N.J. 269, 280 (2012).
A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013). It follows that a "defendant must allege specific facts and evidence supporting his allegations[,]" id. at 355, and "do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).
Applying these principles, we affirm substantially for the reasons expressed by the PCR court. We briefly add the following.
Based on the record before us, we are convinced that defendant has not satisfied the first prong of Strickland-Fritz by showing that trial counsel's conduct "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d 693. Both the court and trial counsel made sure that the plea agreement and prison terms were crystal clear to defendant. At no point during the plea or sentencing was there any indication that defendant was unaware of the offenses he was pleading to and the consequences of his plea. Defendant makes bald assertions without proffering any facts that contradict, or call into question, the record as noted. Accordingly, there is no need to address the second prong under Strickland-Fritz that defendant was prejudiced by counsel's conduct. As there is no prima facie showing of a PCR claim, no evidentiary hearing is warranted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION