STATE OF NEW JERSEY v. CARLOS PENA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1055-04T41055-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

CARLOS PENA,

Defendant-Appellant.

__________________________________

 

Argued: October 5, 2006 - Decided October 26, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 96-06-0123.

Andrew J. Shaw, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Shaw, of counsel and on the brief).

Gregory R. Mueller, Assistant Prosecutor, argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Mueller, on the brief).

PER CURIAM

Defendant Carlos Pena is serving a life term with a twenty-five-year period of parole ineligibility following his guilty plea to aggravated manslaughter, possession of a firearm without a permit and burglary. At the time of the plea, defendant acknowledged shooting his wife at least four times. He appeals the denial of his petition for post-conviction relief. The petition was founded on ineffective assistance of trial counsel.

On appeal, defendant raises the following arguments:

POINT I: DEFENDANT'S PCR PETITION SHOULD BE GRANTED BECAUSE THE PLEAS WERE NOT ENTERED INTO KNOWINGLY AND VOLUNTARILY.

POINT II: DEFENDANT'S PCR PETITION SHOULD BE GRANTED BECAUSE SUFFICIENT FACTUAL BASES WERE NOT ELICITED FROM DEFENDANT AT THE PLEA HEARING.

POINT III: THE LOWER COURT ERRED IN DENYING THE PETITION BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT.

A. TRIAL COUNSEL IMPROPERLY ADVISED DEFENDANT THAT HE WOULD NOT LIKELY RECEIVE THE MAXIMUM SENTENCE AND COERCED HIM INTO ACCEPTING THE PLEAS.

B. TRIAL COUNSEL FAILED TO EMPLOY A SUITABLE INTERPRETER DURING CONSULTATIONS AND COURT APPEARANCES.

C. TRIAL COUNSEL FAILED TO ADEQUATELY FOCUS ON DEFENDANT'S INTOXICATION.

D. CUMULATIVE ERRORS DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL.

POINT IV: THE LOWER COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S PCR CLAIMS.

POINT V: PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT.

Judge Conforti denied the petition without an evidentiary hearing. In his August 28, 2003 oral opinion, the judge held that defendant failed to establish a prima facie case of ineffective assistance of counsel. He noted that "[t]here's a step in between, between [defendant's] contention and an evidentiary hearing. . . ." The judge observed that defendant failed to submit any competent evidence to rebut the statements in the plea transcript that he understood English, that he understood all of the terms of the plea agreement and that he was not under the influence of any mind-altering medication. Rather, defendant submitted nothing more than assertions.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, & 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. First, defendant must show that defense counsel's performance was indeed deficient. Ibid. Second, defendant must demonstrate that 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. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61-62, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

An evidentiary hearing is required only when the facts viewed in the light most favorable to the defendant would entitle defendant to post-conviction relief. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

Defendant has provided no competent evidence to establish a prima facie case of ineffective assistance of counsel. He has submitted no competent evidence that he did not understand the English language at every stage of the proceedings and required the services of an interpreter or that he was under the care of physician or taking medications that would interfere with his ability to enter a knowing and voluntary guilty plea. Under these circumstances, an evidentiary hearing was not required and the petition was properly denied.

At oral argument, defendant emphasized that counsel appointed to represent him at the post-conviction stage was ineffective. Our review of the record convinces us that appointed counsel provided representation consistent with the prevailing standard. State v. Rue, 175 N.J. 1, 18 (2002); State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000).

Affirmed.

 

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A-1055-04T4

October 26, 2006