Opinion
DOCKET NO. A-3349-12T2
07-14-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALEX ECHEVARIA a/k/a JOSE FERNANDEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0334.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Alex Echevaria appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with three counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (counts five, six and seven); three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts eight, nine and ten); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts eleven and twelve); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count thirteen); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-49(a) (count fourteen). Pursuant to an agreement, defendant pled guilty to two counts of second-degree aggravated assault in exchange for the State dismissing the remaining counts of the indictment and agreeing to recommend an aggregate fifteen-year sentence subject to the eighty-five percent period of parole ineligibility.
At the plea hearing, it was established that in the evening of October 8, 2005, outside Sinners Bar in Elizabeth, two groups of men, one Hispanic and one black, were arguing. Co-defendant Saud Paul Bolden fired a .32 caliber handgun in the direction of the Hispanic group, resulting in the death of defendant's friend, Manny Morales. Defendant, who had gone to his car to retrieve a .45 caliber handgun, admitted to firing shots at Michael Guiliano and Gary Floyd with the purpose of causing them serious bodily injury. Guiliano was shot in the leg and Floyd was shot in the head, although both survived the shooting.
Bolden was charged with first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-49(a) (count four). He eventually pled guilty to second-degree manslaughter.
Defendant was sentenced in accordance with the plea agreement. We affirmed defendant's judgment of conviction on our Excessive Sentencing Oral Argument calendar, specifically rejecting his claim of a disparate sentence.
Fourteen days after defendant's sentencing, co-defendant Bolden, who had no previous convictions, was sentenced to a five-year term subject to the eighty-five percent parole disqualifier on the manslaughter offense.
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Defendant filed a timely PCR petition, arguing (1) ineffective assistance of counsel for not "vigorously argu[ing] for a reduced sentence as compared to" that imposed on co-defendant Bolden, and (2) that such disparity deprived him of due process. The PCR judge denied relief on both procedural and substantive grounds, reasoning:
The disparity of sentence issue raised by defendant was litigated before the Appellate Division, which rejected the claim on November 17, 2010, and the defendant is therefore procedurally barred from raising that claim in a motion for post-conviction relief; and
The disparity of sentence claim is, further, without merit because the defendant and co-defendant [Bolden] were not similarly situated: [Bolden] had no criminal history of any kind while the Defendant had at least three prior indictable convictions of a violent nature in addition to numerous municipal convictions; and,
Defendant's ineffective assistance of counsel claim, premised on counsel's alleged failure to advocate forcefully for a downward deviation in sentence from the Defendant's agreed-upon plea deal, is without merit. Defendant has not shown that counsel's performance was deficient in light of counsel's negotiations for an acceptable plea offer and counsel's extended discussion at sentencing of Defendant's family, personal circumstances, and cooperation with the State in the case, and there is no basis on which to conclude that correcting any deficiency in counsel's performance would have created a reasonable probability of a different result.
On appeal, defendant raises the same arguments as below:
I. DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST-CONVICTION RELIEF.
II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-CONVICTION RELIEF.
(A) Trial counsel was ineffective for failing to argue for a reduction in sentence once it was learned a shockingly disparate sentence was pronounced on co-defendant Bolden.
(B) Trial counsel was ineffective for failing to argue for a lesser sentence.
These arguments are without merit, Rule 2:11-3(e)(2), and therefore we affirm for the reasons stated by the PCR judge in his statement of reasons filed November 1, 2012. We add only the following comments.
It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Fritz, 105 N.J. 42, 58-59 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test. Suffice it to say, the claim based on disparity of sentences was previously adjudicated and therefore is not properly before us. R. 3:22-5. Moreover, defendant and co-defendant are not similarly situated and therefore sentencing uniformity was not warranted in this matter. Indeed, given the number of charges defendant was facing, his prior criminal history and commission of violent crimes while on bail for the present offenses, the bargained-for sentence actually imposed, as we had earlier found, was clearly not excessive.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION