Opinion
DOCKET NO. A-2487-12T2
09-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIGUEL SANTANA, a/k/a MIGUEL A. SANTANA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Peter J. Baker, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Leone. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 10-06-1113 and 10-11-2062. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Peter J. Baker, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Miguel Santana appeals from the denial without a hearing of his petition for post-conviction relief (PCR). Because defendant failed to set forth a prima facie case of ineffective assistance of counsel, we affirm.
I.
Defendant filed a PCR petition alleging ineffective assistance of plea counsel regarding his convictions under two separate indictments. Indictment 10-06-1113 related to January 22, 2010, and charged defendant with third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. Indictment 1011-2062 related to July 5, 2013, and charged defendant in count one with second-degree robbery, N.J.S.A. 2C:15-1, and in other counts with third-degree burglary, N.J.S.A. 2C:18-2, fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1, and third-degree resisting arrest, N.J.S.A. 2C:29-2(a).
Defendant, with the advice of counsel, entered into a negotiated plea agreement whereby he agreed to plead guilty to the attempted burglary charged in Indictment 10-06-1113, and to count one of Indictment 10-11-2062, amended to charge second-degree aggravated assault, N.J.S.A. 2C:12—1(b)(1). At the March 11, 2011 plea hearing, the court asked defendant if anyone had "threatened," "coerced," or "promised" defendant "anything in order to enter" the guilty plea. Defendant replied, "No sir."
In his plea colloquy, defendant admitted that, on January 22, 2010, he attempted to enter a first floor apartment by breaking a window. He did not have permission to enter the residence, and was there with "the purpose of taking property."
In his plea colloquy with defense counsel, defendant also admitted that, on July 5, 2010, he "came into contact with" the victim in the victim's home. The colloquy continued:
Q. And you got into an altercation there to . . . take property from [the victim]?
A. I grabbed [the victim] and he fell to the floor and I just fleed [sic] the scene.
Q. And as a result of your physical aggression and force against [the victim,] he sustained serious bodily injury as a result of that . . . attack?
A. I guess. I fleed [sic] the scene.
Q. You have to acknowledge —
A. Yes.
Q. And we stipulated to the serious bodily injury that [the victim] sustained as a result of the incident?
A. Yeah.
THE COURT: Okay.
Defendant confirmed that he wanted to plead guilty, and that he was pleading guilty because he was actually guilty. The court, finding defendant was pleading guilty freely and voluntarily, accepted defendant's guilty plea.
On May 13, 2011, defendant was sentenced to five years in prison with a two-and-a-half-year parole disqualifier for the attempted burglary conviction, and a concurrent five-year prison sentence with an 85% parole disqualifier for the aggravated assault conviction. Defendant appealed his sentence. His appeal was heard on our Excessive Sentencing Oral Argument Calendar, pursuant to Rule 2:9-11. We affirmed the sentence.
Defendant filed a pro se PCR petition and certification, alleging he received ineffective assistance of plea counsel. He was assigned counsel, who filed an amended petition.
The same judge who presided over defendant's plea and sentencing heard argument on defendant's PCR petition. The judge found defendant's "bald assertions" failed to establish a prima facie claim of ineffective assistance of counsel, and denied defendant's PCR petition on November 15, 2012. Defendant appeals, raising the following arguments:
POINT I: THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING BECAUSE DEFENDANT PRODUCED MUCH MORE IN HIS CERTIFICATION THAN "BALD ASSERTIONS" TO ESTABLISH A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL AFFIRMATIVELY MISINFORMED DEFENDANT THAT HE "[HAD] TO ACKNOWLEDGE" SERIOUS BODILY INJURY TO THE VICTIM DURING THE PLEA COLLOQUY.
POINT III: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE FACTUAL BASIS FOR DEFENDANT'S GUILTY PLEA TO AGGRAVATED ASSAULT CAUSING SERIOUS BODILY INJURY WAS WHOLLY INADEQUATE.
II.
To show ineffective assistance of trial or appellate counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted).
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. In the context of a guilty plea, "a defendant must prove that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original) (quotation marks omitted).
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid.; accord R. 3:22-10(b).
If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.
III.
Defendant first argues the PCR court improperly viewed as bald assertions his claims that trial counsel failed to prepare for trial. In his certification, he alleged that plea counsel "never investigated anything properly." However,
[i]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed[.]Here defendant fails to demonstrate what further investigation would have shown, let alone how it would have caused him to insist on going to trial rather than pleading guilty pursuant to the plea bargain. Gaitan, supra, 209 N.J. at 351.
[State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)).]
Defendant also complained that, although plea counsel provided him with a copy of the discovery, counsel never discussed it with him or answered his questions about it, so he "had to read it on my own and question her when I could." However, defendant did not specify what questions he had that plea counsel would not answer. See Marshall, supra, 148 N.J. at 158 (holding no evidentiary hearing is required if "the defendant's allegations are too vague, conclusory, or speculative"); R. 3:22-10(e)(1) (same). In fact, defendant's certification evidences that he had a good understanding of the discovery. Indeed, based on the discovery, defendant filed a pro se motion to suppress and, in the alternative, for a Wade hearing to challenge the victim's identification.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Defendant briefly references his certification that trial counsel did not file "any motions as I wanted," and that counsel "would not do anything to help me fight my case." Again, defendant does not detail what steps counsel should have taken, or how those steps could have changed the outcome. Defendant attaches his pro se motion, but defendant himself chose to withdraw that motion and plead guilty. Defendant's unsupported allegations about trial counsel's preparation for trial are insufficient to merit an evidentiary hearing.
IV.
We next address defendant's contention that his plea colloquy was inadequate to support his conviction for aggravated assault. A judge must determine that there is "a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. To establish a sufficient factual basis, "defendant may either explicitly admit guilt with respect to the elements or may 'acknowledge[] . . . facts constituting the essential elements of the crime.'" State v. Campfield, 213 N.J. 218, 231 (2013).
Here, defendant pleaded guilty to aggravated assault under N.J.S.A. 2C:12-1(b)(1), which states a person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." Defendant contends his factual basis did not establish these elements. However, the PCR court properly dismissed this claim under Rule 3:22-4(a), as it could have been raised in defendant's direct appeal.
A PCR petition is not "a substitute for appeal." R. 3:22-3. To avoid piecemeal proceedings, State v. Mitchell, 126 N.J. 565, 584-85 (1992), a defendant "is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal." State v. Nash, 212 N.J. 518, 546 (2013) (citing R. 3:22-4(a)). This bar does not apply if "(1) the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2) [the] enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice[.]" R. 3:22-4(a).
Defendant cannot show the exception under Rule 3:22-4(a)(1). The factual basis for defendant's plea was stated on the record. Moreover, despite pleading guilty, defendant "retained the right on appeal to raise as reversible error the absence of 'a factual basis for his plea.'" State v. Butler, 89 N.J. 220, 224 (1982 (quoting R. 3:9-2). Thus, defendant could have reasonably raised this claim on direct appeal. State v. Mitchell, 374 N.J. Super. 172, 175 (App. Div. 2005).
Nor can defendant show fundamental injustice. R. 3:22-4(a)(2). The Supreme Court has ruled that, "[t]o succeed on a fundamental-injustice claim," a "petitioner must make some showing that an error or violation played a role in the determination of guilt." Nash, supra, 212 N.J. at 546-47 (quotation marks omitted); see also State v. Martini, 187 N.J. 469, 481-82 (2006). Defendant makes no such showing here.
First, the factual basis established that defendant caused serious bodily injury to the victim. Defendant admitted that he "grabbed [the victim], and [the victim] fell to the floor." Moreover, defendant admitted that "as a result of his physical aggression and force against" the victim, the victim "sustained serious bodily injury." Defendant then agreed that the defense "stipulated to the serious bodily injury that [the victim] sustained." Finally, defendant agreed he was pleading guilty because he was "actually guilty" of aggravated assault. See Campfield, supra, 213 N.J. at 231.
Second, the plea court, considering the reasonable inferences that could be drawn from the colloquy, could find defendant caused the serious bodily injury purposely, knowingly, or recklessly by grabbing the victim and causing the victim to fall to the ground. See State v. Smullen, 118 N.J. 408, 415 (1990) (noting the factual basis should be assessed in "the context of the entire plea colloquy").
The State argues that N.J.S.A. 2C:12-1(b)(1) only requires an attempt to cause serious bodily injury. However, defendant stated a factual basis for causing serious bodily injury, not for attempting to do so.
V.
Finally, defendant claims that trial counsel coerced him into pleading guilty to aggravated assault. In his certification, defendant alleged that the police reports and statement of the victim show there was no serious bodily injury to the victim, and that there were no hospital records showing any injury. Although we do not have the police reports, the victim's statement attached to the presentence report relates that defendant "grabbed me around the neck and pushed me up against the wall," that the victim then chased defendant, and that the victim did not need medical attention after the incident because he was "ok."
Defendant disputes that this constituted serious bodily injury, defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). Grabbing someone's neck can cause bodily injury such as "physical pain" or "impairment of physical condition" by choking, which may create "a substantial risk of death." N.J.S.A. 2C:11-1(a), (b). On the other hand, we have found that a defendant "made a prima facie showing that his counsel was deficient by permitting him to stipulate that the victim sustained serious bodily injury," where hospital records showed only that the victim suffered a cerebral contusion and a subdural hematoma that caused severe headaches which resolved after two weeks. State v. Norman, 405 N.J. Super. 149, 153-54, 161-62 (App. Div. 2009).
In determining whether defendant acted voluntarily or under duress when he admitted that he caused serious bodily injury and pleaded guilty to aggravated assault, we find it significant that defendant pled guilty pursuant to a very favorable plea agreement. He faced five charges, including second-degree robbery, which required only that in the course of committing a theft he "use[d] force upon another." N.J.S.A. 2C:15-1(a)(1). He had ten prior convictions for indictable offenses, including burglary, theft, receiving stolen property, resisting arrest, taking a vehicle, drug distribution, and drug possession. He committed the instant offenses while on parole from prior five-and seven-year sentences. If convicted at trial of a second-degree offense, he faced up to twenty years in prison as a persistent offender, N.J.S.A. 2C:44-3, plus possible consecutive sentences on the remaining charges and on his violations of parole. Instead, under the plea agreement the prosecution agreed to seek only a six-year prison term for the aggravated assault to run concurrent to his five-year sentence on the burglary offense and any sentences for parole violations. The State also agreed to drop the conspiracy charge against the woman who was waiting in defendant's car while he committed the July 5 offenses.
As set forth above, defendant accepted this generous plea agreement, and pled guilty to the assault charge offered by the prosecution, stating that he was actually guilty of the charge. At sentencing, defense counsel stressed defendant's acceptance of responsibility for his actions in successfully arguing defendant should receive only five years for the assault. Defendant without reservation apologized to the victims for his actions and his crimes. Defense counsel then emphasized that, "understanding the elements of the crimes that he pled to and what he was charged with[,] Mr. Santana does stand by his plea" on the aggravated assault charge. Defendant himself agreed.
Given the generous plea agreement, and defendant's explicit reaffirmation at sentencing of his guilt of aggravated assault, we look with "great care and realism" at his allegations in his PCR certification. See State v. Taylor, 80 N.J. 353, 365 (1979). Defendant states he was "willing to consider the plea to the burglary but not to the assault charge as I was not guilty of that. I was not willing to go to trial and told my attorney that and she said I had only two options, either cop out or go to trial." Defendant adds that "all my attorney wanted was for me to plead guilty" and "[s]he finally wore me down and I entered my plea under duress."
It appears that defendant used the term "cop out" to mean plead guilty.
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Defendant's assertions that he was not willing to plead guilty to the assault charge and that he entered his plea under duress are contradicted by his sworn statements at the plea colloquy that he had caused serious bodily injury, that he was actually guilty of aggravated assault, that no one had threatened or coerced him into pleading guilty, and that he was satisfied with the representation of his attorney. "Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome[.]" State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). "That is so because [defendant's] '[s]olemn declarations in open court carry a strong presumption of verity.'" Ibid. (quoting Blackledge, supra, 4 31 U.S. at 74, 97 S. Ct. at 1629, 52 L. Ed. 2d at 147). Defendant's assertions are also contrary to his solemn declaration at sentencing that he understood and stood by his guilty plea to aggravated assault.
Moreover, the PCR judge had witnessed defendant's statements and demeanor at both the plea and sentencing hearings. The judge found that "[t]he colloquy between petitioner and the Court clearly demonstrated that it was petitioner's decision to plead guilty. There was no evidence in the record that petitioner was threatened or pressured to plead guilty by counsel." We find the judge's observations persuasive. See id. at 444-45 (rejecting a defendant's claim that his plea had been coerced, on the bases of his statements and the court's observations at the plea hearing); State v. DiFrisco, 137 N.J. 434, 452-54 (1994) (rejecting on the same bases a defendant's claim that he did not "understand the nature and consequences of his plea"), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
"In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a [post-conviction] motion." Blackledge, supra, 431 U.S. at 74, 97 S. Ct. at 1629, 52 L. Ed. 2d at 147. Moreover, a defendant's "subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id. at 73-74, 97 S. Ct. at 1629, 52 L. Ed. 2d at 147; see Marshall, supra, 148 N.J. at 158; R. 3:22-10(e).
Here, we cannot say that the PCR court erred in rejecting defendant's conclusory allegation that he pled guilty under duress. Defendant identifies no conversations in which his attorney made statements to coerce him into pleading guilty, and has not explained why he represented that his plea was voluntary during the plea colloquy, or stood by his plea at sentencing.
Defendant contends plea counsel's assertion that he "ha[d] to acknowledge" he caused serious bodily injury demonstrates both that plea counsel coerced him into admitting to a material element of the assault charge, and that counsel provided affirmative misadvice. During the colloquy, plea counsel asked, "as a result of your physical aggression and force," the homeowner, "sustained serious bodily injury." Defendant replied, "I guess, I fl[ed] the scene." Plea counsel then stated, "You have to acknowledge—," at which point defendant interrupted, stating, "Yes." Plea counsel then asked, "And we stipulated to the serious bodily injury that [the homeowner] sustained as a result of the incident," to which defendant replied, "Yeah."
Contrary to defendant's contention, this exchange shows only that plea counsel attempted to focus defendant's plea colloquy to ensure he set forth an adequate factual basis for the plea. Further, defendant's interruption of counsel's clarifying comment, and his confirmation that he stipulated to causing serious bodily injury, shows his understanding and willingness to enter that plea, and belies his argument that the comment was coercive. Moreover, when asked specifically by the judge "[a]re you actually guilty," defendant replied "[y]es." Defendant's belated assertion that he is not guilty, and would not have pleaded guilty to the assault charge but for plea counsel's clarifying comment, is insufficient to warrant an evidentiary hearing. Marshall, supra, 148 N.J. at 158; R. 3:22-10(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION