Opinion
DOCKET NO. A-3693-11T4
03-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE TORRES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney (Andrew R. Burroughs, 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NOT FOR PUBLICATION WITHOUT THE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 Parrillo and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0540.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jose Torres appeals from the denial of his petition for post-conviction relief (PCR) in which he asserted that his trial counsel was ineffective because he allegedly failed to provide defendant with "complete discovery" prior to his retraxit plea of guilty; failed to advise defendant about the merits of the case against him; and failed to file a timely appeal. On appeal, defendant argues that the judge erred in denying his petition without oral argument or an evidentiary hearing. We have considered these arguments in light of the record and applicable law, and we affirm essentially for the reasons expressed by Judge Michael L. Ravin in his thorough nineteen page letter opinion dated October 24, 2011.
Defendant was indicted by an Essex County Grand Jury on February 23, 2006, on a single count of second-degree robbery, N.J.S.A. 2C:15-1. The record reveals that defendant was represented by the Office of the Public Defender and that his attorney, an experienced assistant public defender, secured the initial discovery on March 27, 2006. In addition, counsel appeared at the prosecutor's office on May 4, 2006, to examine "all evidence" pertaining to the charge maintained by the prosecutor, including "videotape from [the] robbery scene," forty-three photographs taken by a "video surveillance camera," two photo displays containing six photographs in each display, a "robbery photo" and fingerprint evidence.
At a status conference before Judge Ravin on May 12, 2006, an assistant prosecutor advised that a prior verbal plea offer to the defendant had not been authorized and that defendant was now being extended a plea offer of ten years, subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She further advised that defendant's history of prior convictions "make him a violent repeat offender, [subject to] a mandatory extended term."
Counsel for defendant advised Judge Ravin that at the time he received the initial plea offer defendant "wanted to look at the discovery which, at the time, was incomplete. Before he decided to take the offer, he looked at the discovery, [and] he decided he did want the plea offer." Because the earlier offer had been withdrawn, however, and the new offer entailed a longer period of incarceration, defense counsel requested an adjournment of three weeks to allow defendant time to make a "rational decision." Judge Ravin agreed, and set the matter down for June 5, telling defendant that "you've got a lot to think about."
On June 5, 2006, defendant appeared with counsel and retracted his prior plea of not guilty and entered a plea of guilty. Defendant gave a factual basis for the plea, and confirmed that he had been "caught" through fingerprints and "photo IDs." Defense counsel also observed on the record that the State had a "video" recording of the crime. Defendant confirmed he had "conferred with" defense counsel, who "explained things" to him and answered his questions. Defendant stated he had no further questions of his counsel and was satisfied with his services. Judge Ravin accepted the plea and set the matter down for sentencing on July 21, 2006.
On that date, defendant was sentenced by Judge Ravin in accordance with the plea agreement. Defendant thereafter filed a notice of motion for leave to appeal nunc pro tunc on August 21, 2007, challenging his sentence as excessive. The motion was granted on November 21, 2007, and, following oral argument, we affirmed the sentence. State v. Jose Torres, No. A-6695-06 (App. Div. Nov. 13, 2008). Defendant did not file for certification before the New Jersey Supreme Court.
Subsequently, defendant filed his PCR petition. After some procedural issues were addressed by the court, an order was entered by Judge Ravin on November 9, 2009, dismissing the petition without prejudice to enable defendant's designated counsel to undertake an investigation. Counsel filed an amended PCR petition on April 15, 2011. In a brief submitted in support of the petition, defendant's designated counsel stated simply that defendant's trial counsel "failed to provide [defendant] with complete discovery; failed to adequately advise [defendant] regarding the merits of his case; and failed to file . . . a timely appeal."
Judge Ravin thereafter issued a detailed nineteen page opinion on October 24, 2011, denying the PCR without oral argument or an evidentiary hearing. Although Judge Ravin's decision pre-dated by almost a year our Supreme Court's opinion in State v. Parker, 212 N.J. 269 (2012) (holding that ordinarily "oral argument should be granted" on a PCR petition, and that where a trial judge determines that oral argument is not warranted, "the judge should provide a statement of reasons" for that determination tailored to the particular petition. Id. at 282), Judge Ravin discussed the issue in detail in his written decision. He stated, in pertinent part:
Considering the factors set forth in [State v.] Mayron, [344 N.J. Super. 382 (App. Div. 2001)] and the "significant presumption" in favor of oral argument, Petitioner's post-conviction relief petition does not merit oral argument. Oral argument simply would not aid in the [c]ourt's analysis of whether Petitioner is entitled to post-conviction relief. First and foremost, as is discussed in detail below, there is little merit to the ineffective assistance of counsel issues raised by Petitioner. Petitioner fails to articulate with specificity any prejudice resulting from Defense Counsel's allegedly ineffective assistance. Second, the complexity of the issues does not necessitate oral argument. Petitioner's ineffective assistance of counsel issues include: failure to provide Petitioner with complete discovery prior to
entering his plea of guilty, failure to adequately advise Petitioner of the merits of his case, and failure to timely file for an appeal of Petitioner's sentence. These first two issues entail recollection and verification by Defense Counsel and Petitioner as to their pre-plea communications. Resolution of the third issue is self-evident based on the documents filed with this petition and the prescribed duties of trial counsel assigned through the Public Defender's Office (which was done in Petitioner's case). Oral argument between the prosecutor assigned to this petition and Petitioner's current counsel would not flush out these issues for the court or make them any less complex then they already are. Third, this petition represents Petitioner's second petition for post-conviction relief. Fourth, as previously considered under the second Mayron factor, argument of counsel would not add to the written positions that have been submitted.
Fifth, and most importantly, the goals and purposes of the post-conviction procedure would not be furthered by oral argument in this case. Post-conviction relief is a safeguard that allows defendants to challenge the legality of their sentence or final judgment of conviction by raising issues that could not have been raised on direct appeal, thereby guaranteeing that a defendant is not wrongly convicted. Petitioner appears to be challenging his final judgment of conviction by raising an issue of ineffective assistance of counsel, which was not raised on his direct appeal. However, in the concluding paragraph of Petitioner Counsel's brief in support of the petitioner, Petitioner "is asking the court to consider all the classes he has taken to become a productive member of society and resentence him to lesser custodial term" (emphasis added). Petitioner's Brief at 7. Thus, in reality it appears that Petitioner
is not challenging his final judgment of conviction on the basis of ineffective assistance of counsel, but is rather seeking to reduce his sentence. In Petitioner's case, a petition for post-conviction relief is not the proper vehicle for this relief. R. 3:22-2(3) provides a ground of post-conviction relief for an illegal sentence ("imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law"); however Petitioner is not claiming an illegal sentence but instead appears to be pleading to the [c]ourt to reduce the discretionary term of his sentence. "Alleged excessiveness of sentence is not an appropriate ground of post-conviction relief." State v. Pierce, 115 N.J. Super. 346, 347 (1971). For this relief, Petitioner should instead file another motion to change or reduce his sentence pursuant to R. 3:21-10. If alternatively, petitioner is seeking to challenge the legality of his sentence, a petition for post-conviction relief is procedurally barred because this is an issue that Petitioner already raised on direct appeal. See State v. Jenkins, 221 N.J. Super. 286 (App. Div. 1987), cert. den., 113 N.J. 343 (1988). Having fully and thoroughly analyzed the merits of Petitioner's contentions on the papers, there is nothing to be offered by oral argument. Thus, a denial of oral argument would not impinge on petitioner's constitutional guarantee against a wrongful conviction.
Similarly, in denying an evidentiary hearing on defendant's petition, Judge Ravin opined, in part, as follows:
For the reasons that the [c]ourt will articulate below, an evidentiary hearing is not warranted because Petitioner has failed to establish a prima facie claim of ineffective assistance of counsel.Addressing the substance of defendant's PCR arguments, Judge Ravin stated, in pertinent part:
Considering the alleged facts in the light most favorable to Petitioner, he has not established a reasonable likelihood of success under the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668, 687 ( 1984), U.S. v. Cronic, 466 U.S. 648 (1984), and State v. Fritz, 105 N.J. 42, 53-58 (1987). While testimony by petitioner's former Defense Counsel could clarify some of the factual issues Petitioner raised in his brief, Petitioner has failed to prove any actual prejudice as a result of Defense Counsel's alleged deficiencies. Thus, Petitioner has failed to make the prima facie showing of ineffective assistance of counsel that is a necessary predicate for an evidentiary hearing.
[D]ocumentary evidence proves that the seven total items of evidence in this case were received on April 3, 2006. State's Exhibit S-2. Documentary evidence also proves that Defense Counsel came to the Essex County Prosecutor's Office on May 4, 2006 and viewed "all evidence" with Investigator Saldida. Thus Defense Counsel was well aware of all discovery in this case on June 5, 2006 when Petitioner entered his guilty plea. Petitioner's claim that Defense Counsel failed to share this discovery and its merits with Petitioner prior to his June 5, 2006 plea is mere speculation. Petitioner fails to prove through specific factual allegations that his attorney's performance was deficient, i.e., that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the petitioner by the Sixth Amendment." [Strickland, supra, 4 66 U.S. at 687.] "The filing of a petition for PCR is not a license to obtain unlimited
information from the State, but is a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights." [State v. Marshall, 148 N.J. 89, 270 cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).]
Even if Petitioner adequately alleged that Defense Counsel failed to provide Petitioner with complete discovery and failed to adequately explain the merits of Petitioner's case, the fact remains that Petitioner has failed to show any resultant prejudice. Pursuant to [State v.] DiFrisco, [137 N.J. 434 (1994)], Petitioner's petition and supporting brief is utterly void of any allegations of actual prejudice. Namely, Petitioner fails to allege that but for Defense Counsel's deficiencies, Petitioner would not have pleaded guilty and would have instead chosen to go to trial on his Robbery 2nd degree charge.
Considering the facts in the light most favorable to Petitioner, Petitioner has not proven a reasonable likelihood of success of his ineffective assistance of counsel claim on the basis of inadequate discovery and inadequate advice.
Defendant now contends on appeal that the Judge Ravin erred in denying oral argument and an evidentiary hearing. We disagree and affirm essentially for the reasons expressed by Judge Ravin. We add only the following.
To justify withdrawing a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard:
When a guilty plea is part of the equation, . . . 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."Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (DiFrisco, supra, 137 N.J. at 457.]
An applicant for post-conviction relief must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). One seeking such a remedy 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 applicant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[B]ald assertions" of ineffective assistance are not enough. Ibid.
A person 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." Marshall, supra, 148 N.J. at 158 (citing Preciose, supra, 129 N.J. at 463). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. But where there are "material issues of disputed fact which cannot be resolved by reference to the existing record an evidentiary hearing should be held." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).
Here, Judge Ravin rightly determined that the totality of the record convincingly negated defendant's bald and generalized assertions. Indeed, at the status conference of May 12, 2006, defense counsel confirmed that defendant had, in fact, "looked at the discovery" prior to accepting the earlier plea and, merely wanted some additional time to consider the new offer before deciding to accept or reject it. Defendant was in court with counsel on May 12, 2006, and never disputed counsel's statements to the court. Moreover, as noted, the documentary evidence reveals that defense counsel had obtained all discovery from the prosecutor's office prior to the May 12 conference. Finally, at his plea, defendant confirmed that he had conferred with his defense counsel, who had explained the case to him, and answered all his questions. Defendant stated he had no other questions to ask and was prepared to plead guilty.
Accordingly, defendant did not assert any facts that would have entitled him to an evidentiary hearing. Further, his bald and generalized arguments do not substantiate a claim of ineffective assistance of counsel — a claim flatly belied by the record in any event. Although the better practice might have been to allow oral argument in this case, we are satisfied that Judge Ravin did not abuse his residuum of discretion in deciding the case without oral argument. The case is not complex and, as heretofore explained, defendant's arguments were clearly without merit.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION