STATE OF NEW JERSEY v. CARLOS GUERRERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2156-07T42156-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS GUERRERO,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 10, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 02-05-2066 and 02-05-2067.

Yvonne Smith Segars, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Carlos Guerrero appeals from an order entered on October 3, 2007 denying his petition for post-conviction relief (PCR) from two judgments of conviction. We affirm.

On July 14, 2003, defendant pled guilty under Indictment 02-05-2066 to first degree aggravated manslaughter, N.J.S.A. 2C:11-4; and third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. On that same date, he also pled guilty under Indictment 02-05-2067 to third degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7.1.

Defendant was sentenced on September 18, 2003 to a term of twenty years subject to seventeen years parole ineligibility under Indictment 02-05-2066 and to a term of three years subject to three years parole ineligibility under Indictment 02-05-2067. The terms under the two indictments were to run concurrently. On May 13, 2004, defendant moved pro se to withdraw his guilty pleas. The motion was denied on August 20, 2004.

On January 10, 2006, we affirmed both convictions but remanded for the trial court to amend the judgments with respect to the Violent Crimes Compensation Board (VCCB) penalties imposed. The Supreme Court denied certification on April 28, 2006. State v. Guerrero, 186 N.J. 607 (2006).

Defendant filed a pro se PCR petition on March 7, 2007, covering both indictments. Counsel was assigned and filed briefs on his behalf. The PCR court rendered a written decision in which it reviewed the underlying charges and the law pertinent to determining whether trial counsel was ineffective. The court found that defendant's claim of ineffective assistance of counsel during the plea proceeding was unfounded and that "trial counsel was not deficient." The PCR court further found that defendant's claim that counsel's failure to investigate the matter further was based on defendant's failure to provide any information to warrant an investigation and defendant's decision to plead guilty well before the plea proceeding.

The PCR court also noted that defendant proffered no evidence in his PCR petition "that trial counsel would have found via an investigation, nor have any affidavits been provided to the court to show what an investigation would reveal. While the [p]etitioner presents hypothetical areas of investigation, this is not what is required by case law. Therefore, the [p]etitioner has not shown that the first prong of Strickland is met because trial counsel's performance was not deficient." The PCR court further noted that during his plea colloquy, defendant stated that trial counsel had met with him and answered all of his questions prior to the plea and that defendant was satisfied with his services. Defendant was even given the opportunity to consult further with counsel during the plea proceeding and declined to do so.

In this appeal, defendant argues:

POINT ONE

IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF

POINT TWO

THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE [OF COUNSEL]

Defendant contends that he was denied effective assistance of counsel because trial counsel "did not contemplate any defense." He maintains that the autopsy report indicated that no gun had been recovered, no bullet identified and that the victim died of "gunshot wound of back and blunt force injuries of head." Defendant argues that the autopsy conclusions were never reviewed by a medical expert and that there was no link between defendant and the victim. He claims he did not even know if the victim was shot. Defendant further claims that trial counsel did not interview witnesses, make pre-trial motions, and that during the plea, there was an insufficient factual basis to support a plea to aggravated manslaughter.

In order to demonstrate that trial counsel's representation was constitutionally ineffective, a defendant must rebut the "strong presumption" of competent performance on counsel's part and show that, but for counsel's deficiencies, the outcome would have been different. Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694-95; State v. Fritz, 105 N.J. 42, 61 (1987). "A claim for post-conviction relief must be established by a preponderance of the credible evidence." State v. McQuaid, 147 N.J. 464, 483 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1991)). An evidentiary hearing on a PCR petition will be granted only if the defendant has presented a prima facie case of ineffective assistance of counsel. State v. Marshall, 148 N.J. 89, 157, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing Preciose, supra, at 462).

To present a prima facie case, defendant must demonstrate a reasonable likelihood that his claim will ultimately succeed on the merits. Ibid. "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." Id. at 158 (citations omitted). In other words, defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Only then, can the court determine whether a prima facie case has been made.

During his plea colloquy, defendant testified that the incident giving rise to these charges began with a verbal altercation, during which defendant fired a shot at the victim from a distance. After firing the shot, defendant chased the victim around the block, not knowing whether the victim had been shot. When defendant caught up with the victim, he used the gun to assault the victim. Defendant fled from the scene, apparently not knowing whether the victim was shot or dead.

Defendant further testified during the plea colloquy that he understood the terms of the plea agreement; that he understood he was entitled to a trial by jury at which he could cross-examine witnesses, subpoena witnesses and testify on his own behalf. Defendant acknowledged that in entering the plea, he was waiving those rights; that he was pleading guilty because he was, in fact, guilty of those crimes; that counsel representing him had explained the plea agreement to him and answered his questions; and that he was satisfied with counsel's services. At no time during the plea colloquy did defendant raise any defense, indicate that he had any witnesses to testify contrary to the evidence against him, and, other than stating that he did not know the victim was shot, offered no exculpatory statements.

As the PCR court noted, defendant proffered no evidence to support his claims that any investigation conducted by trial counsel would have yielded any exculpatory evidence. Nor has he proffered any such evidence before us.

We have carefully considered defendant's arguments in light of the applicable law and we are satisfied that the PCR court's decision was based upon findings of fact which are adequately supported by the record. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Michael Ravin in his written statement of reasons dated October 3, 2007.

Affirmed.

 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

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A-2156-07T4

June 30, 2009