Opinion
DOCKET NO. A-0458-10T4
08-05-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDUARDO TAIPE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-06-00458.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Eduardo Taipe appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
On June 24, 2004, a Somerset County Grand Jury indicted defendant, charging him as follows: Count One, second degree eluding, N.J.S.A. 2C:29-2(b); Count Two, second degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(1); Count Three, second degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(6); Count Four, third degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); Count Five, third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); Count Six, third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); Count Seven, fourth degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12); Count Eight, third degree possession of cocaine with intent to distribute within 1,000 feet of North Plainfield High School, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7; Count Nine, third degree possession of heroin with intent to distribute within 1,000 feet of North Plainfield High School, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7; and Count Ten, third degree possession of marijuana with intent to distribute within 1,000 feet of North Plainfield High School, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.
On September 25, 2005, defendant pled guilty to all counts in the indictment pursuant to a negotiated agreement with the State. The judge who presided at the plea hearing described the terms of the agreement when he addressed defendant as follows:
THE COURT: Now, my understanding is that in exchange for your plea of guilty to those charges they're [the State] willing to drop a motor vehicle reckless driving, they're willing to recommend eight years State Prison, eighty-five percent without parole. Is that your understanding?
DEFENDANT: Yes.
The judge also addressed the representation and advise defendant had received from his defense counsel in connection with his decision to plead guilty.
THE COURT: Are you satisfied with [defense counsel's] legal advice to you about all this?
DEFENDANT: Not totally, but yeah.
THE COURT: I understand you may not be happy with the result, but in talking it over, you understand everything?
DEFENDANT: Yes.
THE COURT: I know you wish the Statutes were some other way, but having consulted with your attorney, you're satisfied that this is the best thing for you to do under the circumstances?
DEFENDANT: Yes.
The judge then asked defendant a series of questions concerning the plea form he had completed and signed to ensure defendant was pleading guilty of his own free will, without any force or coercion, and was aware of the rights he was giving up as a result of his decision to plead guilty. At the end of this process, defendant described what occurred on May 26, 2004, that resulted in his arrest and subsequent indictment.
Through an extensive colloquy between defendant and the court, defendant admitted that he drove to the parking lot of Red Tower II, a fast food restaurant in North Plainfield, with the intent of selling an "eight ball" of cocaine to an individual who turned out to be a narcotics officer. When he was "cornered" by police vehicles, defendant drove his car backward and forward into the police cars, injuring two law enforcement officers. Defendant eventually sped away from the scene. He was apprehended after being pursued by police cars with flashing lights. He also admitted to possessing cocaine, heroin, and marijuana, all with the intent to distribute within 1,000 feet of a school.
On February 27, 2006, the court sentenced defendant to an aggregate term of eight years, with an eighty-five percent period of parole ineligibility and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 16, 2008, defendant filed a direct appeal of his sentence which was heard and decided in a summary manner pursuant to Rule 2:9-11. By order dated January 12, 2009, we remanded for the trial court to amend the Judgment of Conviction to reflect only a one year period of parole ineligibility as to Count Ten; we affirmed the sentence in all other respects.
Only the convictions for second degree aggravated assault are subject to NERA.
Count Ten charged third degree possession of marijuana with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7. The court originally sentenced defendant to a term of four years, with three years of parole ineligibility on this offence.
On June 26, 2009, defendant filed this PCR petition alleging ineffective assistance of trial counsel. Specifically, defendant claimed that his trial counsel did not adequately investigate the case, failed to aggressively negotiate with the State during plea discussions, and failed to communicate to him a more favorable plea offer made by the State.
Defendant's PCR petition came for adjudication before Judge Paul W. Armstrong on March 18, 2010. After considering the arguments of counsel, Judge Armstrong denied the petition, finding defendant had not made a prima facie case of ineffective assistance of counsel.
Defendant now appeals, raising the following arguments:
POINT ONE
THE TRIAL COURT ERRED BY REFUSING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING AND BY DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
POINT TWO
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must first demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Applying these principles to the record before us, we reject defendant's arguments substantially for the reasons expressed by Judge Armstrong in his oral opinion delivered from the bench on March 18, 2010.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION