Opinion
DOCKET NO. A-2669-10T1
05-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON AMORATIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Motion to reinstate appeal granted.
Before Judges Grall and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-04-1343.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jason Amoratis appeals from the order that denied his post-conviction relief (PCR) petition. We affirm.
In 2005 a Camden County grand jury charged defendant and two co-defendants in a thirty-three count indictment with committing, among other crimes, conspiracy to commit robbery, several robberies, multiple burglaries, and several weapons offenses. Defendant subsequently pled guilty to one count of first-degree robbery committed with a handgun, N.J.S.A. 2C:15-1, and agreed to testify against one of his co-defendants. In exchange, the State agreed to dismiss the remaining counts of the indictment and recommend a seventeen-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At sentencing, the court followed the State's recommendation and sentenced defendant to a seventeen-year custodial term subject to NERA. The judge also imposed appropriate penalties and assessments and ordered defendant to make restitution.
Defendant appealed his sentence as excessive. We heard his appeal on a sentencing calendar pursuant to Rule 2:9-11 and affirmed his sentence except for the restitution component, which we vacated and remanded to the trial court for a hearing. Following further proceedings on remand, the court amended the judgment of conviction.
During the year following our decision affirming his sentence, defendant filed his PCR petition. He asserted the following grounds for relief:
(1) That petitioner was denied effective assistance of counsel, when counsel was (A) unprepared, (B) counsel never investigated, (C) that counsel tricked petitioner into taking a plea agreement and (D) that counsel [refused] to file motions for Preliminary Hearing and File for Appeal.
(2) That the court erred by accepting the petitioner[']s plea to the indictment because the plea was [an] involuntary product of intimidation and [coercion].
(3) That the state withheld evidence, that would show that the defendant was not involved in any crime.
(4) That the [petitioner's] sentence is unconstitutional of the U.S. Constitution and of the N.J. Constitution.
The court appointed an attorney to represent defendant and the attorney filed a supplemental brief in which he argued that trial counsel was ineffective for these reasons: he failed to advocate for defendant's entry into a drug program or drug court; failed to investigate and interview witnesses; failed to discuss defendant's right to trial with him or develop defenses to the charges; failed to ensure defendant understood the plea process and the consequences of pleading guilty; and failed to investigate and point out mitigating factors at sentencing.
The court denied defendant's petition without first conducting either oral argument or a hearing. In a comprehensive written opinion filed on August 16, 2010, the court found both that defendant's petition was procedurally barred and that defendant failed to establish a prima facie case. Defendant appealed.
Because the record on the appeal was incomplete, we dismissed it, but agreed to reinstate on defendant's motion, provided that a brief and proper appendix were filed. State v. Amoratis, No. A-2669-10 (App. Div. January 10, 2013) (slip op. at 5-7). Defendant complied, and two months after dismissing defendant's appeal we granted his motion to reinstate it. In addition to the arguments defendant previously made, he now submits the following points for our consideration:
POINT I THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR ORAL ARGUMENT ON THE PETITION. THUS, THE LOWER COURT ORDER MUST BE REVERSED.
POINT II THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.
POINT III THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT IV THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
We affirm, substantially for the reasons given by the trial court in those sections of its opinion denying defendant's petition for failure to establish a prima facie claim.
We add the following comments only. In order to establish the two elements of an ineffective-assistance-of-counsel claim that are required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987), which adopted the two-part Strickland test in New Jersey, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel"; he must allege specific facts "sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). For example, "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
Here, defendant has done nothing more than make unsupported conclusory allegations. Noting that the PCR judge characterized his factual assertions and sworn statements as "bald assertions and naked averments," and apparently recognizing his failure to comply with Cummings, defendant writes "that at least some of [his arguments] should not have been so easily dismissed." Yet, the three arguments he discusses all suffer from the same deficiency.
The first - that his attorney did not explain the crime to which he was admitting guilt or the ramifications of his guilty plea — is refuted by the plea colloquy, which defendant makes no attempt to reconcile with his current assertion. And the two others - that counsel did not undertake an independent investigation or interview witnesses - are unsupported by certifications identifying any investigation or witnesses. For those reasons, the PCR court did not err by denying defendant an evidentiary hearing.
Defendant also contends the court erred by denying oral argument. In State v. Parker, 212 N.J. 269, 282-83 (2012), our Supreme Court noted the "strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief" and required that a judge considering dispensing with oral argument "provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary." Here, however, the court denied defendant's petition more than two years before the Supreme Court decided Parker. Moreover, the deficiencies in defendant's petition are both self-evident and incurable by oral argument.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION