Opinion
DOCKET NO. A-4313-12T2
09-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLAUDIO BROCATO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1606. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, 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 Claudio Brocato appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The record reveals the following facts and procedural history.
On November 28, 2005, the Passaic County grand jury indicted defendant, Antonio Azpiri and Ricardo Aquino for the homicide of Julio Rivera and related crimes. Defendant was specifically charged with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3; first-degree murder as an accomplice, N.J.S.A. 2C:11-3a(1)-(2) and 2C:2-6; third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; and fourth-degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j. Pursuant to a plea agreement, defendant subsequently pled guilty to conspiracy to commit murder and was sentenced in accordance with the plea agreement to fourteen years imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. The judge also ordered restitution in the amount of $6250, which was to be apportioned among all culpable co-defendants.
Possession of an assault firearm is now a crime of the second degree.
Defendant filed no direct appeal but filed a pro se PCR petition on November 22, 2010. He certified that trial counsel provided ineffective assistance in that he failed to properly investigate the facts of the case, refused to call witnesses and failed to present arguments against the excessive sentence imposed. Defendant also claimed newly-discovered evidence existed that would "have altered the [S]tate[']s allegations" against him.
PCR counsel was assigned and filed a brief supported by a supplemental certification of defendant. Defendant stated that he asked trial counsel to move to suppress the "illegal statements taken from [him] and used to inculpate [him]" but counsel did not pursue that, nor did he hire an investigator to interview witnesses who defendant claimed, without naming, "lied to [the] police . . . ." Defendant also stated that he told trial counsel about "a possible criminal case against the lead investigator," but "it was never ascertained what the case was about." Defendant also claimed that the arrest warrant in his case was "defective," allegedly a further ground for the suppression of statements he gave to police. In the end, according to defendant, trial counsel had "lost 'all the fight' for trial," so he pled guilty.
As to sentencing, defendant alleged trial counsel failed to produce unnamed character witnesses and argue certain mitigating factors applied. In a pro se supplemental brief, defendant alleged that Azpiri, who actually shot Rivera, pled guilty to second-degree manslaughter, N.J.S.A. 2C:-11-4(b), and certain persons not to possess firearms, N.J.S.A. 2C:39-7(a), and received a fifteen-year term with a lesser period of parole ineligibility than defendant.
The PCR judge, who was not the trial judge, heard argument on the petition. He summarized in detail defendant's involvement in Rivera's murder as recounted in two conflicting statements defendant gave to police after having received his Miranda warnings. The judge concluded that the State "would have utilized [defendant's statements] to easily convict [defendant] not of conspiracy to commit murder, but murder."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The judge also noted that the State had offered defendant a better plea bargain in return for his testimony against Azpiri, but defendant refused to testify against his co-defendant. The judge concluded that defendant "knowingly and voluntarily pled guilty." He further determined that defendant had failed to make a prima facie case of ineffective assistance of counsel and denied the petition. This appeal followed.
Defendant raises the following arguments:
We have considered these arguments in light of the record and applicable legal standards. We affirm the denial of defendant's PCR petition, but remand for the entry of an amended judgment of conviction as set forth below.
POINT ONE
THE DEFENDANT MET HIS BURDEN BY A PREPONDERANCE OF THE EVIDENCE AND ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
STRICKLAND/FRITZ STANDARD. THE PCR COURT COMMITTED ERROR BY DENYING THE PCR PETITION WITHOUT GRANTING AN EVIDENTIARY HEARING.
a. Trial counsel failed to investigate the case.
b. Trial counsel failed to pursue a motion to suppress his statements.
c. Trial counsel failed to investigate the Defendant's claim that the lead detective was being charged in federal court during the pendency of his case.
d. Trial counsel misinformed him as to the terms of the plea agreement and coerced him into accepting the plea.
e. Trial counsel failed to present witnesses and [f]ailed to argue mitigating factors at the sentencing hearing.
f. Trial counsel was ineffective because he failed to adequately advise the Defendant of his right to file an appeal.
g. The Defendant established a prima facie case of ineffective assistance of counsel and his right to an evidentiary hearing by a preponderance of the evidence.
POINT TWO
THE DEFENDANT'S SENTENCE WAS EXCESSIVE AND THERE WAS AN EXTREME DISPARAGEMENT [sic] BETWEEN HIS SENTENCE AND THAT OF HIS MORE CULPABLE CO-DEFENDANT. THE PCR COURT COMMITTED ERROR BY DENYING THE DEFENDANT'S APPLICATION FOR A NEW SENTENCING HEARING.
POINT THREE
THE PCR TRIAL COURT COMMITTED ERROR BY NOT AMENDING THE RESTITUTION ORDER DIVIDING THE FULL RESTITUTION BETWEEN THE THREE CO-DEFENDANTS.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).
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To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted by our Supreme Court in Fritz, supra, 105 N.J. at 58. First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
Furthermore,
[w]hen a guilty plea is part of the equation . . . , a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.The United States Supreme Court recently noted that "[t]he art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision." Premo v. Moore, ___ U.S. ___, ___, 131 S. Ct. 733, 741, 178 L. Ed. 2d 649, 661 (2011). Trial counsel's judgment is thus afforded substantial deference. Id. at ___, 131 S. Ct. at 742, 178 L. Ed. 2d at 661 (citing, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674). Moreover,
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 528 (1994) (alteration in original) (internal quotation marks omitted).]
The stakes for defendants are high, and many elect to limit risk by forgoing the right to assert their innocence. A defendant who accepts a plea bargain on counsel's advice does not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be reversible error for the court to admit that evidence.
[Id. at ___, 131 S. Ct. at 744, 178 L. Ed. 2d at 663.]
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). "However, a defendant is not entitled to an evidentiary hearing if the 'allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]'" State v. Porter, 216 N.J. 343, 355 (2013) (alteration in original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." (emphasis omitted)), certif. denied, 162 N.J. 199 (1999)). Furthermore, a defendant must demonstrate a prima facie case for relief prior to an evidentiary hearing, and a court is not required to grant the hearing so that defendant may establish a prima facie case. State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
It suffices to say that most of the sub-points raised by defendant in Point One are either essentially "bald assertions" of ineffective assistance of counsel that are unsupported by any other corroborating evidence in the record, or the claims are belied by the actual proceedings in the Law Division. Trial counsel apparently did file appropriate motions, but they were not heard because defendant pled guilty pursuant to a plea offer that may have contemplated a more serious sentence recommendation if the motions were heard and denied. The record of the plea proceedings indicate that defendant fully understood the terms of the plea bargain, indicated satisfaction with his attorney, gave a factual basis for his guilty plea and did so after knowingly and voluntarily waiving his rights to a trial. Defendant was advised of his right to appeal by the judge at sentencing.
Regarding the argument made in Point One (e), defendant has failed to name any witnesses that should have been called at his sentencing hearing but were not produced because of counsel's deficient performance. While it is true that counsel made no specific argument regarding the application of mitigating sentencing factors, defendant has failed to demonstrate such an argument would have affected the outcome of the proceedings, i.e., that he would have received a lesser sentence than what he bargained for and received.
Defendant's argument regarding the disparity between his sentence and that of his co-defendant is procedurally-barred. A petition for post-conviction relief is not a substitute for a direct appeal. State v. Hess, 207 N.J. 123, 145 (2009). Subject to certain exceptions which we conclude do not apply in this case, "[a]ny ground for relief not raised . . . . in any appeal taken in any such proceedings is barred from assertion in a [PCR] proceeding . . . ." R. 3:22-4(a). Defendant's disparate sentence argument could have been raised on direct appeal but was not.
Regarding defendant's argument as to the restitution ordered by the sentencing judge, we have held that "[r]estitution is not technically punishment for a crime. . . . [I]t is predominantly nonpenal in nature." State v. Rhoda, 206 N.J. Super. 584, 590 (App. Div. 1986). Nevertheless, during sentencing, the judge stated that "[t]he amount [of restitution] is to be apportioned equally with any co-defendant or co-defendants who are convicted." After Azpiri was convicted, trial counsel wrote to the judge asking for reapportionment; the judge declined to do so, stating he expected that if Aquino was convicted, another letter would follow. Aquino's charges were dismissed in October 2010 and no follow up letter appears in the appellate record.
Under these particular, unique circumstances, we exercise original jurisdiction and order an amendment of the judgment of conviction to reflect the actual sentence imposed upon defendant, i.e., the equal distribution of the restitution amount between him and his co-defendant, Aprizi, who pled guilty. While this does not reflect any conclusion about the performance of trial counsel, which we specifically determine was not deficient, defendant is entitled to the benefit of the bargain he made when he pled guilty. We therefore remand the matter to the trial court only for the purposes of entering an amended judgment of conviction that accurately sets forth the sentence imposed regarding restitution.
Affirmed. We remand solely for the entry of an amended judgment of conviction. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION