STATE OF NEW JERSEY v. LUIS BARRIOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0426-06T40426-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS BARRIOS a/k/a

HECTOR GARCIA,

Defendant-Appellant.

 

Submitted November 5, 2008 - Decided

 
Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-01-0147-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Maria Thompson, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Luis Barrios a/k/a Hector Garcia, appeals from the Law Division's April 3, 2006 order denying his petition for post-conviction relief (PCR). On appeal, he raises the following legal arguments:

POINT I: THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; DEFENSE TRIAL COUNSEL WAS INEFFECTIVE AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED DEFENDANT-APPELLANT AN EVIDENTIARY HEARING ON THIS ISSUE.

A. The Defendant-Appellant Was Not Effectively Informed of a Penal Consequence of his Plea.

B. The Court Which Heard the PCR Motion Failed to Consider the Issue of Ineffective Assistance of Counsel.

C. The Defendant-Appellant Was Entitled to an Evidentiary Hearing.

POINT II: THE DEFENDANT-APPELLANT'S PLEA WAS NOT ENTERED KNOWINGLY; THEREFORE THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF.

We affirm.

In October 2001, while driving a stolen motor vehicle in the City of Elizabeth, defendant attempted to elude a police officer after the officer signaled him to stop. Defendant eventually came to a stop after colliding with another vehicle. After fleeing on foot, he was later apprehended.

Under a multi-count indictment, defendant was charged with second-degree eluding a police officer, N.J.S.A. 2C:29-2b (count one); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count two); third-degree burglary, N.J.S.A. 2C:18-2 (count three); third-degree theft, N.J.S.A. 2C:20-3 (count four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).

In exchange for the State agreeing to a dismissal of counts two through five and recommending a seven-year flat prison term to run concurrent with an unrelated Bergen County sentence, defendant pleaded guilty to count one. At the time he entered his plea, Judge Heimlich, through a Spanish interpreter, engaged in the following colloquy with defendant:

Q Are you satisfied with the services of your attorney?

A Yes.

Q Has your attorney explained the charges to you?

A Yes.

Q Did your attorney explain to you the rights and responsibilities?

A Yes.

Q Did you read the plea agreement?

A Yes.

Q Did you understand the plea agreement?

A Yes.

Q Did you go over the plea agreement with your attorney?

A Yes.

Q Are all of your answers truthful?

A Yes.

Q Did anyone promise you anything else that is not set forth on the plea form?

A No.

After taking a factual basis from defendant, the judge accepted the guilty plea, and informed defendant of the following:

I will accept the plea. I am also advising you that this plea is contingent upon the case of State v. [Subin, 222 N.J. Super. 227 (App. Div.), certif. denied, 111 N.J. 580 (1988)]. And that provides the following: that if you do not appear for a presentence report, or for sentencing, or if you are arrested on a new charge, the guilty plea that you just gave will remain.

However, you may be sentenced up to the maximum term of your plea, which means that this Judge does not have to give you seven years concurrent to Bergen County. Rather, this Judge can give you . . . up to 10 years with a 5-year period of parole ineligibility, consecutive to Bergen County, if you do not appear for sentencing or for your presentencing report, or if you're rearrested.

Do you understand that?

A Yes.

Defendant failed to appear for sentencing. After defendant was arrested on a bench warrant, Judge Heimlich imposed an eight-year prison term, consecutive to the sentence defendant was serving in Bergen County.

Defendant did not file a direct appeal, but petitioned for post-conviction relief. He claims that because he did not have a translator with him while discussing the plea agreement with his attorney before he entered his plea, he did not understand the terms of the plea agreement. He asserts that his attorney led him to believe that in exchange for his guilty plea, he would receive a five-year prison term to run concurrent with his Bergen County sentence.

Judge Heimlich denied defendant's PCR petition. The judge found that defendant's behavior in failing to appear at sentencing constituted a violation of Subin, supra, 222 N.J. Super. 227. The judge reasoned that although defendant may have gone to Puerto Rico because his brother was dying, after returning to the United States he did not voluntarily report to court for sentencing, but remained a fugitive until he was arrested. The judge also found that, based on the colloquy in which he had engaged with defendant at the time defendant entered his plea, defendant understood the terms of the plea agreement and voluntarily agreed to them.

To be successful in a claim of ineffective assistance of counsel, a defendant must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). The test requires: (1) "'that counsel's performance was deficient,'" and (2) "'the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Counsel's performance is to be given "extreme deference" with a presumption of reasonable assistance. Ibid.

After a defendant has demonstrated that counsel's performance was deficient, the defendant must then show that the deficient performance prejudiced the defense. Ibid. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Whether a PCR petition warrants an evidentiary hearing is within the sound discretion of the PCR court. State v. Marshall, 148 N.J. 89, 157 (1997).

Applying these principles here, defendant has not established that counsel was ineffective. At the time defendant entered his guilty plea, a Spanish translator was present and defendant responded affirmatively to all questions asked of him by the judge with regard to the terms of the plea agreement. The judge fully informed defendant that he was required to appear at sentencing and that if he failed to do so, he could be sentenced to a term of up to ten years, with a five-year period of parole ineligibility, consecutive to the sentence he was serving in Bergen County. Defendant's claims that he was not properly informed of the penal consequences of the plea agreement, and that he was otherwise afforded ineffective assistance of counsel, are simply not supported by the record.

Affirmed.

 

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A-0426-06T4

November 25, 2008