Opinion
DOCKET NO. A-3694-11T1
01-27-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE PEREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 09-08-2919.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a January 6, 2012 order denying his petition for post-conviction relief (PCR). Defendant contends that he received ineffective assistance of plea counsel. We affirm.
Defendant was charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. The evidence of guilt was overwhelming. A police officer watched defendant discard a sawed-off shotgun through the driver's side window of defendant's vehicle during a police pursuit. Defendant pled guilty and the judge sentenced him, in accordance with a plea agreement, to a ten-year prison term with five years of parole ineligibility, concurrent to a three-year prison term for violation of probation. Defendant did not appeal.
In August 2011, defendant filed his petition for PCR. Judge Louise DiRenzo Donaldson conducted oral argument, denied defendant's petition, and stated that
Defendant's first argument regarding ineffective assistance of defense counsel is that [plea counsel] violated the Rules of Professional Responsibility by failing to adequately communicate with him. However, the defendant does not support his argument with any specific facts as his certification does not allege anything regarding [plea counsel]'s failure to communicate. Thus, defendant's claim amounts to a bald assertion which is insufficient to establish a prima facie case of ineffective assistance of counsel.
The defendant's second ineffective assistance claim is that [plea counsel] cajoled him into pleading guilty by misrepresenting the strength of the State's case. . . . [D]efendant argues that [plea counsel] convinced him to plead guilty before reviewing the complete discovery. There is nothing that I found in the record
that indicates that [plea counsel] did anything to pressure [defendant] . . . . Furthermore, at the plea hearing, the defendant replied, "Yes, sir," to the questions, "Are you pleading guilty voluntarily, of your own free will," and, "Has anyone threatened or forced you to enter into this plea?" These statements suggest that no pressure was placed on the defendant.
The defendant's final argument is that because of the ineffective assistance of counsel, his plea was not knowing and intelligent.
. . . .
However, [defendant] did know the State's strongest evidence against him in regard to this particular charge was that . . . there was a police report that there was a police officer who was a witness to the defendant throwing the weapon from the driver's side window. That is very strong evidence.
Further, the defendant was subject to the mandatory extended term . . . which would have raised the possible sentence from a five to [ten]-year to a [ten] to [twenty]-year sentence . . . .
There is nothing in the record that shows to me that the defendant was prejudiced by any failure of the trial attorney to provide satisfactory representation, so I think even if the defendant makes a prima facie showing on the first part of the Strickland test, he fails to show that he is prejudiced by any failure in the trial lawyer's representation . . . .
. . . .
I find that even if . . . the trial lawyer could have investigated further and could have found any additional discovery that would have assisted the defendant, it would not have been prejudicial to the defendant because of the overwhelming evidence of guilt already in the possession of both the State and the defendant[.]
On appeal, defendant raises the following points:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT II
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A) DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We thus affirm substantially for the oral reasons expressed by Judge Donaldson. We add only the following brief comments. 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 the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel:
[t]o set aside a guilty plea based on ineffective assistance of counsel, 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.'Although the question addressed in Nunez-Valdez concerned defendant's immigration status, we have applied the same standards to assess the validity of a claim of ineffective assistance of counsel in the context of a guilty plea that did not involve the immigration status of the defendant. See State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nunez-Valdez standards to assess the materiality of erroneous information provided by defense counsel concerning the defendant's right to possess a firearm).
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alterations in original) (quoting
State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).]
We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test as well as the standard established under Nunez-Valdez.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L Ed. 2d 674 (1984).