STATE OF NEW JERSEY v. JESUS PEDRAJA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1647-07T41647-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESUS PEDRAJA,

Defendant-Appellant.

___________________________________________________________

 

Argued March 31, 2009 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

03-11-02186.

Nancy C. Ferro argued the cause for appellant.

Catherine A. Foddai, Senior Assistant

Prosecutor, argued the cause for respondent

(John L. Molinelli, Bergen County Prosecutor,

attorney; Ms. Foddai, of counsel and on the

brief).

PER CURIAM

Defendant Jesus Pedraja appeals from an order dated August 6, 2007, denying his petition for post-conviction relief (PCR). After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

On October 20, 2004, after his motion to suppress physical evidence was denied, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1. During the plea hearing, defendant testified he understood his constitutional rights, including his right to remain silent and his right to a trial by jury, he was satisfied with the advice he received from his attorney, and he stated he was entering the plea freely and voluntarily. In response to questions from his attorney, defendant testified as follows:

[DEFENSE COUNSEL]: I . . . direct your attention to August 3rd, 2003. Were you in the City of Englewood on that date?

MR. PEDRAJA: Yes.

[DEFENSE COUNSEL]: Were you in the company of another individual?

MR. PEDRAJA: Yes.

[DEFENSE COUNSEL]: Is that your co-defendant in this case, Mr. Rasaun Thompson?

MR. PEDRAJA: Yes.

[DEFENSE COUNSEL]: At that time did the two of you enter into a premises located on West Street in the City of Englewood?

MR. PEDRAJA: Yes.

[DEFENSE COUNSEL]: At that time were either you or your co-defendant armed with a deadly weapon, namely a firearm?

MR. PEDRAJA: Yes.

[DEFENSE COUNSEL]: While armed with that deadly weapon, did you commit a theft upon the occupants of that address located on West Street in Englewood?

MR. PEDRAJA: Yes.

[DEFENSE COUNSEL]: What was the purpose to do that, in order to take belongings of theirs, specifically money and other items of personal property?

MR. PEDRAJA: Yes.

[DEFENSE COUNSEL]: [Y]ou knew to have done so was unlawful?

MR. PEDRAJA: Yes.

On December 17, 2004, defendant was sentenced to a fourteen-year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The trial court sentenced defendant in conformity with his plea agreement even though defendant had six prior indictable convictions, and the court found that the aggravating factors "overwhelmingly" outweighed the mitigating factors.

In his direct appeal, defendant claimed the court erred in denying his motion to suppress and that his sentence was excessive. We rejected these arguments and affirmed defendant's conviction and his sentence in an unreported opinion. State v. Pedraja, No. A-2568-04T4 (App. Div. May 10, 2006). The Supreme Court denied defendant's petition for certification. 189 N.J. 648 (2007).

On December 11, 2006, defendant filed a petition for post-conviction relief (PCR). During oral argument on July 27, 2007, the prosecutor responded to defendant's ineffective-assistance-of-counsel claim as follows:

[T]he ineffective assistance argument is a "but for" test. But for the wholly deficient actions of counsel I would not have been convicted, or I would not have received the same sentence.

Just keep in mind, Judge, that when viewing [defense counsel's] performance here that this is a case wherein the police were watching the establishment that was robbed at the time it was robbed.

I'm hesitant to call any one particular case a Prosecutor's dream but I literally have a police officer with binoculars surveilling a storefront while this man and his co-defendant come walking out, so to speak, backwards, one with a gun in his hand, the other with the pail full of money and watches and the proceeds of the robbery. They get caught blocks later, never leaving Detective Torell's eyesight.

The one defendant pulls a gun and runs. Mr. Pedraja is left in the car with the proceeds of the armed robbery. Keep that in context when you hear but for [defense counsel's] wholly deficient performance this man would not have been convicted by a jury.

The PCR court denied defendant's petition without an evidentiary hearing and memorialized its decision in an order dated August 6, 2007.

On appeal, defendant presents the following arguments:

POINT ONE

DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AND HE SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING.

A. TRIAL COUNSEL FAILED TO MOVE TO SUPPRESS THE ALLEGED SELF-INCRIMINATING STATEMENTS CONTAINED IN THE SUPPLEMENTARY INVESTIGATIVE REPORT BY OFFICER TORELL.

B. TRIAL COUNSEL FAILED TO MOVE TO DISMISS THE STATE'S CASE FOR LACK OF EVIDENCE.

C. THE TRIAL ATTORNEY FAILED TO INVESTIGATE THE AREA OF EXCULPATORY EVIDENCE.

D. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM APPELLATE COUNSEL.

POINT TWO

DEFENDANT'S POST-CONVICTION RELIEF APPLICA- TION IS NOT BARRED BY THE RULES.

We are satisfied from our review of the record and the applicable law that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Consequently, we affirm with only the following comments.

To establish a prima facie claim of ineffective assistance of counsel, a convicted defendant must establish a reasonable likelihood of success under the Strickland/Fritz test. State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-prong test, a defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In the context of a guilty plea, the second part of the Strickland/Fritz test--the prejudice prong--focuses on whether defense counsel's performance "affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1994); accord State v. Di Frisco, 137 N.J. 434, 457 (1994).

In the present matter, defendant does not contend that he is innocent. Moreover, the evidence of his guilt is over- whelming. As the trial court noted, defendant was "apprehended red-handed" right after the robbery. The court concluded that no hearing was necessary because defendant failed to establish a prima facie case of ineffective assistance. These findings are amply supported by the record. Accordingly, we affirm substantially for the reasons stated by Judge Austin on July 27, 2007.

 
Affirmed.

The two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

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A-1647-07T4

April 20, 2009