Opinion
DOCKET NO. A-2116-10T3
01-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GEORGE LUPINACCI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0551.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant George Lupinacci appeals the Law Division's denial of his petition for post-conviction relief ("PCR"). His conviction arises out of a negotiated plea of guilty to two counts of robbery, N.J.S.A. 2C:15-1, one count in the first- degree and the other in the second-degree. For the reasons that follow, we affirm the rejection of the PCR petition.
The charges stem from defendant robbing a gas station worker at knife-point in West Paterson on October 22, 2004, and then, two months later on December 29, 2004, forcibly taking the purse of a woman entering the lobby of a West Paterson building. Police traced the second robbery to defendant through the license plate number of a car he was using at the time. The gas station attendant thereafter identified defendant as the perpetrator of the first robbery.
On the return day of his pretrial motion to suppress certain evidence, defendant appeared and decided to accept a plea offer that had previously been proposed by the State. After a long colloquy with the trial judge, Hon. Ralph L. DeLuccia, Jr., J.S.C., defendant indicated that he wanted to take the plea offer and understood that he was waiving his right to have the court decide his motion to suppress.
Defendant confirmed under oath at the plea proceeding that on October 22, 2004, he had threatened the gas station attendant with a knife, and taken money from him. Defendant further admitted to forcibly taking a purse from the second victim on December 29, 2004. After these factual admissions were placed on the record, Judge DeLuccia observed that, although defendant had agreed to plead guilty, he had not signed the portion of the plea form addressing the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.Defendant asserted that he refused to sign that portion of the plea form because he thought that NERA was an unjust law.
Judge DeLuccia informed defendant that the New Jersey Supreme Court had previously held that NERA is a constitutional law. Defendant stated that a fellow inmate had told him that he could challenge his sentence on appeal by arguing that NERA was unconstitutional, to which Judge DeLuccia responded that the fellow inmate was incorrect. The judge further indicated that, although defendant was "entitled to try again to overturn [NERA]," if he had "knowingly and voluntarily . . . admitted to the crimes to which [he was] pleading," there were very few legitimate grounds on which to base an appeal. The judge warned that unless defendant proffered "some new and novel theory," the likely result of an argument that NERA was unconstitutional would be a "one-sentence decision [saying that] this issue has already been addressed . . . and has been resolved." The judge continued:
Here's the deal. . . . This plea is contingent upon you freely and voluntarily accepting it without hesitation. If there's any hesitation, [the prosecutor's] position is that he's not going to extend the plea offer. And I understand that. And
certainly if . . . you're hesitating and . . . quibbling about this, I'm not going to accept it because it raises a question as to whether you're doing this freely and voluntarily.
But just understand that that decision is yours, [and] that other people will make decisions based upon yours.
[DEFENDANT:] Exactly.
THE COURT: If you decide that you don't want this plea, fine. Then, the plea is off the table and then we move to the next step which will be the hearings, and that plea is not coming back.
. . . .
[DEFENDANT:] And I can go down the tubes then, big time[.]
During the same proceeding, Judge DeLuccia and defendant engaged in the following interchange:
THE COURT: Do you think we're forcing you to do this?
[DEFENDANT:] It's hard to say.
THE COURT: Well, it's either yes or no.
[DEFENDANT:] The thing is if I don't go for the deal, I'm going to get screwed in plain English.
THE COURT: Well, no. Listen. If . . . you don't take the plea offer, there's a process.
[DEFENDANT:] Right.
THE COURT: The process is that the plea offer will be revised and if you don't like
what they have now, you don't like what they're going to have in the future, you can go to trial. That's what we were here to do today to get this case ready for trial. At trial, you could win everything — [DEFENDANT:] Or lose everything. THE COURT: — or lose everything or something in between. You had a motion to separate your counts in the indictment. If we separated some of the counts in the indictment, like for example the robberies at the gas station from the purse snatching, you know, you could end up with different crimes, different times. You know? [DEFENDANT:] Or twice . . . as much as I'm facing. THE COURT: Exactly. [DEFENDANT:] So, I'm cutting my losses. . . . . And taking . . . the deal.
Judge DeLuccia asked defendant again if he was ready to proceed with the plea, and defendant responded that he was "[p]ositive" that he wanted to proceed.
On the same day, defendant signed the remainder of the plea form, pleading guilty to one count each of first-degree robbery and second-degree robbery. Defendant initially circled "No" next to the question asking if he was satisfied with his lawyer's advice. Defendant informed Judge DeLuccia that he and his attorney "didn't have very many meetings and [the attorney] was very busy" during the seven-month period before his indictment was issued. The judge explained that the attorney's only account of the situation would have been that the matter was before the grand jury, and that "the State has complete control over that." Defendant agreed on the record that his trial attorney was a "good, able, and competent lawyer." Defendant further agreed that the judge's description of the ramifications of accepting or denying a plea was substantially the same explanation he received from his attorney, although the judge explained it "much more easier" and "[p]robably with more respect."
After hearing the judge's explanation, defendant stated that he was satisfied with what his attorney had told him. Defendant then changed his answer on the plea form to indicate that he was satisfied with his lawyer's advice, informing the judge that he was "freely and voluntarily" doing so.
Defendant's trial attorney then asked him if he understood all the questions asked of him on the plea form, if he understood the charges against him, if he understood that he was giving up his right to a trial, if he understood that he was waiving his right to remain silent and his right to cross-examine witnesses, and if he understood the penalties he faced as a result of a conviction. Defendant answered all of those questions in the affirmative.
Based on these assertions, Judge DeLuccia found that defendant understood the nature of the charges, that he had received the advice of competent counsel, and that defendant understood the maximum penalty he could face for conviction. The judge also found that defendant was not coerced into entering a plea. Accordingly, the judge accepted defendant's guilty plea to the two robbery offenses.
On October 2, 2006, Judge DeLuccia sentenced defendant to an aggregate of fifteen years of incarceration and imposed an aggregate restitution fee of $1050.00. During the sentencing hearing, the subject of the prior plea negotiations arose. Prior to the issuance of the indictment, defendant had been offered a plea agreement in which the State would consent to a term of ten years of incarceration, to run concurrently with a seven-year sentence, for both robbery incidents. Defendant disputed whether that pre-indictment offer was "clearly rejected," as asserted by the prosecuting attorney at sentencing. The prosecuting attorney noted that the ensuing plea offers made to defendant gradually carried longer sentences, as the State's case "got much better[.]" This was a reflection of the increased probability that the State would be able to obtain a conviction in the event that the case went to trial.
Defendant alleged that prior to indictment, his attorney had advised him of the plea offer, but instead of rejecting the offer he told his attorney that he would "get back to [her] in a couple of hours." He contended that, despite calling and writing letters indicating that he wanted the offer, his attorney did not respond to him. Defendant further stated on the record that he wanted to resuscitate a prior motion to retract his plea. Judge DeLuccia replied:
Defendant had apparently moved at an earlier date to retract his plea, but this motion was withdrawn. The record does not contain further evidence of the motion or its withdrawal.
Mr. Lupinacci, it's really only at the eleventh hour that you're bringing up the issue about the [pre-indictment plea] offer, and it [is] consistent with the way that you have approached this case. You['re] dancing around on the initial plea offer. I understand we went through this back in December [at the plea hearing].
[DEFENDANT:] Right.
THE COURT: You know, you have . . . a very artful way of trying to enhance your position so you can get a lesser plea, and I'm not criticizing you for trying to do everything you can to minimize your [exposure], but what I am criticizing you for is that at no time until just basically now are you really raising the issue about whether your [attorney] accepted your calls to convey your desire to accept that plea
offer. You didn't even raise [it] in the presentence report, you didn't raise it on December 14th[, 2005 at the plea hearing], in fact, we had been in court numerous times and that issue was never raised. You say you told [trial counsel].
[DEFENDANT:] Many times.
THE COURT: Well, the fact of the matter is I gave you every opportunity to raise it with me and you were not the least bit reluctant to raise many issues with me regarding your ability to plead guilty and the factual basis surrounding it and the circumstances of how you got to where you are. But [nowhere] in all of those opportunities is there anything that would indicate that you had a plea offer that you accepted that somehow got lost. And those words only had to come from your mouth.
Judge DeLuccia proceeded with the sentencing, declining to accept defendant's belated argument that his plea should be retracted.
Defendant appealed his sentence to this court, arguing that it was excessive, and that the amount of restitution was improper. Oral argument was heard on that excessive sentencing appeal on September 15, 2008. In an ensuing order dated September 19, 2008, this court vacated a portion of the restitution amount and remanded to the trial court to amend the October 2, 2006 judgment of conviction accordingly.
Defendant subsequently filed a petition for certification with the New Jersey Supreme Court. The Court denied certification on July 13, 2009. State v. Lupinacci, 200 N.J. 207 (2009).
Defendant then filed a pro se PCR petition in the trial court on July 6, 2009. In his petition, defendant alleged that his former attorneys, both at trial and on appeal, rendered ineffective assistance of counsel. In particular, he alleged that his attorneys failed to raise issues of constitutional violations, failed to join defendant in his own motions challenging such alleged violations, "shirk[ed]" the obligation to consult with him, failed to use an investigator to substantiate his claim of a Miranda violation, failed to procure a favorable plea, and failed to raise the issue of involuntary plea on appeal. Defendant also maintained that his plea was not made knowingly and voluntarily because of the ineffective assistance of counsel. In an amended pro se petition, defendant further alleged that his trial counsel failed to adequately explain the elements of the charges, and that the trial court had erred in inducing him to plead guilty and accepting that plea. PCR counsel for defendant then filed briefs amplifying his contentions, and requested an evidentiary hearing.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Oral argument was heard on the PCR petition before Judge Jared D. Honigfeld, J.S.C., on May 26, 2010. After hearing the arguments, Judge Honigfeld denied the PCR application, finding no need for an evidentiary hearing.
In his oral decision, Judge Honigfeld found that it was "quite obvious from the transcript that . . . defendant did decide to take [the plea bargain]." The judge noted that defendant has an associate's degree in mechanical engineering and a master's license in navigation, and that he is more educated than most defendants are. The judge also noted that "all the trial judge did was explain some of the ramifications [of conviction] to [defendant]. But certainly there was no real pressuring. It was obviously his own decision."
Judge Honigfeld further observed that there was no medical evidence to support defendant's assertion that his confession was given while under the influence of methadone such that it affected his cognitive abilities.
On June 8, 2010, Judge Honigfeld issued a corresponding order dismissing defendant's PCR petition. This appeal by defendant ensued.
In his briefs on the present appeal, defendant raises the following points:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
POINT II
DEFENDANT'S TRIAL AND APPELLATE COUNSELS PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT
POINT III
DEFENDANT'S STATEMENT TO THE POLICE WAS NOT VOLUNTARY
POINT IV
THE TRIAL COURT ERRED BY REFUSING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING
REPLY POINT I
DEFENDANT'S POST-CONVICTION RELIEF CLAIM IS NOT PROCEDURALLY BARRED BY R. 3:22-4
Having considered the record as a whole in light of the applicable law, we affirm the denial of defendant's PCR application, substantially for the sound reasons set forth in Judge Honigfeld's oral opinion. Although the State has also urged us to find that defendant's contentions are barred under Rule 3:22-4 because they could have been raised on defendant's previous appeal, we decline to rest on that procedural point and instead determine that the petition was properly denied on its merits. It is obvious from the record that defendant has failed to satisfy his burden under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), to demonstrate that (1) his prior counsel's performance was deficient, and (2) the deficient performance actually prejudiced his defense. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
We amplify Judge Honigfeld's opinion with only a few brief comments. Defendant's Miranda-based contention that he was under the influence of drugs at the time he gave his confession to the police is not corroborated by any medical proof. Moreover, there is no basis to believe that the motion to suppress his statement would have been successful had it been pursued.
In addition, based upon the transcribed colloquy that we have already quoted at length, defendant manifestly realized exactly what he was doing when he agreed on the record to bypass the suppression motion and instead take the plea offer.
We also discern no justification for defendant to have been allowed to withdraw his guilty plea under the factors of State v. Slater, 198 N.J. 145, 157-58 (2009). Among other things, defendant has not claimed that he is innocent, and the voluntariness of his plea is easily established by the lengthy colloquy with the trial judge. See State v. McDonald, 211 N.J. 4, 16 (2012).
There was no need for the PCR judge to have conducted an evidentiary hearing, as none of defendant's arguments presented a prima facie case of ineffectiveness warranting such a hearing. State v. Preciose, 129 N.J. 451, 462-64 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION