Opinion
DOCKET NO. A-3155-12T3
07-10-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VERONICA JETER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, 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NOT FOR PUBLICATION WITHOUT THE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 Messano and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-12-4063.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Veronica Jeter appeals from the October 4, 2012 Law Division order denying her petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On December 18, 2007, an Essex County grand jury indicted defendant for two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The indictment arose from an August 9, 2007 incident in which defendant shot a handgun, for which she did not have a permit, at her downstairs neighbor and his fiancé, striking her neighbor three times causing serious injury. The incident apparently arose out of a disagreement regarding the placement of a barbeque grill. Defendant also possessed another unpermitted weapon in her residence at the time.
On March 20, 2008, defendant pled guilty to the two counts of aggravated assault and two counts of unlawful possession of a weapon. As part of the plea agreement, the State agreed to recommend a ten-year sentence with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
During the plea colloquy, defendant stated that her attorney had reviewed the plea forms with her, but she had not personally read them. At that point, Judge Ramona A. Santiago delayed the plea hearing so that defendant could go to the holding cell with her attorney and read each question on the plea agreement and confirm her answers. When the plea hearing resumed, defendant confirmed that she read and understood all of the plea form questions, her answers remained the same, and, after reviewing the sentencing consequences, she still wished to plead guilty.
On May 16, 2008, Judge Santiago sentenced defendant in accordance with the plea agreement to a ten year prison term with an 85% parole bar on one of the aggravated assault counts with the sentences on the remaining three counts to run concurrently. The judge also imposed the requisite fines and restitution.
Defendant's direct appeal related solely to her sentence, which we affirmed on July 27, 2010, as not manifestly excessive, unduly prejudicial, or an abuse of discretion. The Supreme Court denied certification on November 16, 2010. State v. Jeter, 205 N.J. 98 (2010).
On February 16, 2012, defendant filed a pro se PCR petition raising the following:
POINT I: INEFFECTIVE ASSISTANCE OF COUNSEL WHEREAS DEFENSE COUNSEL DID NOT RAISE ANY MERITORIOUS QUESTIONS AND/OR INFORMATION AT THE TIME OF TRIAL AND AT SENTENCING DESPITE DEFENDANT'S REPEATED REQUESTS TO DO SO IN
VIOLATION OF STATE v. RUE AND CONFLICT WITH COUNSEL WHICH THE DEFENDANT STATED REPEATEDLY TO THE COURT AS WELL AS NOT INFORMING THE DEFENDANT THE ADVANTAGES OR DISADVANTAGES OF ACCEPTING ANY PLEA OR TESTIFYING AT TRIAL. FURTHER, COUNSEL COMMITTED BLATANT CONFLICT OF INTEREST BY FORMALLY STATING (QUOTE), "MS. JETER, I WORK FOR THE STATE AND I CANNOT GO AGAINST THE STATE."
POINT II: JUDICIAL CONDUCT WHEREAS AN ALFORD PLEA WAS ENTERED IN HASTE, TO WHICH HIS HONOR DID NOT TAKE INTO CONSIDERATION ANY MERITORIOUS INFORMATION CONCERNING THE TRUE CIRCUMSTANCES OF THE INSTANT OFFENSE AS CONVEYED DURING SENTENCING INCLUDING BUT NOT LIMITED TO THE DEFENDANT BEING PERMITTED TO ADDRESS THE COURT IN HER OWN WORDS, HERSELF.
POINT III: TRIAL COUNSEL INTERFERED WITH HIS RIGHT TO TESTIFY WHICH SHOULD BE DETERMINED AFTER AN EVIDENTIARY HEARING PURSUANT TO STATE v. REYES DECIDED 02/19/08 ALSO INCORPORATING THE FACT THAT THE DEFENDANT'S PLEA WAS OBTAINED AS A RESULT OF INEFFECTIVE COUNSEL AND CUMULATIVE ERRORS THEREOF.
POINT IV: CAUSATION AS A FACTOR DIRECTLY CONTRIBUTING TO THE DEFENDANT'S ACTIONS WITH DIRECT CAMERA EVIDENCE FAILED TO BE DISCLOSED BY DEFENSE COUNSEL DESPITE DEFENDANT'S REPEATED REQUEST TO PRESENT SUCH EVIDENCE AS AN AFFIRMATIVE DEFENSE TO THE CHARGE(S).
296 N.J. Super. 108 (App. Div. 1996), certif. denied, 148 N.J 463 (1997).
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed 2d 162 (1970).
No. A-1979-06 (App. Div. Feb. 19, 2008).
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Subsequently, defendant's appointed counsel filed a brief supporting her PCR petition setting forth the following arguments:
POINT I: TRIAL COURT ERRED IN NOT GIVING MORE WEIGHT TO MITIGATING FACTORS PURSUANT TO N.J.S.A. 2C:44-1 THUS JUSTIFYING A LOWER SENTENCE.
A. The Trial Court Erred at Sentencing by Giving Only Minimal Weight to Petitioner's Lack of a Prior Record.POINT II: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, AND THEREBY THE RIGHTS OF DUE PROCESS AND A FAIR TRIAL WHEN COUNSEL FAILED TO INFORM PETITIONER OF THE WEAKNESSES IN THE STATE'S CASE AGAINST PETITIONER.
A. Plea Agreement Should be Vacated because Petitioner's Counsel Failed to Properly Explain the Terms of the Agreement.
On September 28, 2012, Judge Santiago, who had also presided over defendant's plea and sentence, heard oral argument on defendant's PCR petition and denied it. As to defendant's claim that the judge did not adequately consider the mitigating factor of her lack of a criminal history, the judge noted that allegations of improper weighing of the sentencing factors are not cognizable on PCR and her sentence had already been affirmed on direct appeal. The judge nevertheless considered defendant's claim on the merits and stated she had weighed defendant's sole mitigating factor in sentencing and concluded that "[g]iven the severity of petitioner's crimes and the devastating consequences of her actions . . . the aggravating factors far outweighed the mitigating factor."
Next, Judge Santiago evaluated all of defendant's ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The judge found defendant's contentions that her counsel was ineffective for failing to pursue a valid defense or fully investigate to be "untenable." The judge pointed out that defendant raised "no specific defense" and cited no "facts or circumstances which would warrant a finding that defense counsel failed to effectuate a proper investigation" which resulted in prejudice to defendant. As such, the judge found that defendant had failed to prove that her plea counsel was deficient and failed to show how she was prejudiced by her counsel's alleged errors.
As to defendant's claim that her plea was not knowing or voluntary because her counsel did not fully explain the plea agreement, Judge Santiago found that defendant did not provide any substantive evidence to support her claim. As mere conclusory allegations are insufficient, the judge determined that defendant did not prove deficiency on the part of her trial counsel. The judge then observed, "Assuming otherwise, there is still no legitimate basis to believe petitioner suffered prejudice, as this court ensured [defendant] understood the charges against her and the consequences of the plea."
The judge concluded that the plea was knowing and voluntary; thus, "petitioner's claim that, but for defense counsel's alleged failure to explain the terms of the plea agreement, [defendant] would not have plead guilty is wholly without merit, and [defendant] is not entitled to post conviction relief based on ineffective assistance of counsel." This appeal followed.
On appeal, defendant raises the following legal arguments for our consideration:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER STRICKLAND v. WASHINGTON.
POINT II: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We begin with a review of well-established legal principles that guide our analysis. Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
This standard also applies in the context of guilty pleas, where attorney competence is required and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
A petitioner must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). "[B]ald assertions" of ineffective assistance are not enough to meet this burden. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.
A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. (citing Preciose, supra, 129 N.J. at 462-64) .
Having considered the record in light of the applicable legal principles, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons provided by Judge Santiago in her October 4, 2 012 written opinion. We add only the following brief discussion.
A review of the plea colloquy reflects that defendant entered her plea freely and voluntarily, and she understood the generous nature of the plea agreement and its consequences. Indeed, the trial judge delayed the entry of defendant's plea so that defendant could personally read the entire plea form.
Thus, we find the argument that defendant was uniformed, intimidated, or rushed into accepting her plea agreement to be without merit. Moreover, defendant presented no evidence beyond mere bald assertions that meritorious defenses were available to her and not properly investigated by her trial counsel. Such allegations are insufficient to demonstrate ineffective assistance. See Cummings, supra, 321 N.J. Super. at 170.
We are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Furthermore, defendant is not entitled to an evidentiary hearing as she has not demonstrated a reasonable likelihood of success on the merits. See Marshall, supra, 148 N.J. at 158.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION