STATE OF NEW JERSEY v. DENNIS BUSSANICH

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2872-07T42872-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS BUSSANICH,

Defendant-Appellant.

______________________________________________________

 

Submitted April 1, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-10-1975.

James S. Friedman, LLC, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dennis Bussanich appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following point for our consideration:

[DEFENDANT] DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THE DISPOSITION OF HIS CASE, AND THE POST-CONVICTION COURT'S DECISION TO DENY HIM AN EVIDENTIARY HEARING AT WHICH HE COULD DEMONSTRATE THIS WAS ERRONEOUS.

We have considered this argument in light of the record and applicable legal principles. We affirm.

Defendant was indicted by the Bergen County grand jury and charged with second-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1; and third-degree possession of a knife with intent to use it unlawfully against another, N.J.S.A. 2C:39-4(d). On March 14, 2005, he appeared with counsel and pled guilty pursuant to a plea bargain struck with the State. Specifically, in return for defendant's guilty plea to second-degree robbery, the State agreed to dismiss the remaining counts of the indictment and recommend that any sentence imposed not exceed ten years with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Additionally, as a result of the charges contained in the indictment, four violations of probation were lodged against defendant based upon sentences previously imposed on four separate indictable convictions. The State agreed that any sentences imposed on those violations would run concurrently to the sentence on the robbery charge.

The prosecutor recognized that defense counsel "would have the ability to argue and try to persuade [the judge] . . . that NERA should not apply[.]" The judge interrupted and asked, "Why wouldn't NERA apply to a case like this?" Defense counsel replied by citing State v. Oliphant, 178 N.J. 245 (2003). The following colloquy then took place:

Counsel: [My] client . . . does understand that the State will attempt to convince Your Honor that NERA applies and he also understands that I had promised to him to litigate this issue before the Court at the time of sentencing to attempt to convince the Court not to impose NERA . . . .

Judge: But if he's going to enter this plea he should do so with the understanding that he would be subject to NERA. You might be able to argue that NERA might not apply, but I want him to understand the gravest possible consequences.

Counsel: Oh, absolutely -- you can allocute him, Judge . . . . [H]e does understand his exposure potentially to NERA, but he is also indicating to me he wants me to litigate the issue before the trial court and if he's unsuccessful [] he may take that up on appeal . . . .

Defendant was placed under oath, and indicated in response to the judge's questions, that he wished to plead guilty, that he understood the terms of the plea agreement, that he had sufficient time to discuss the matter with his attorney, that he was satisfied with his attorney's services, that he understood he was waiving certain rights by pleading guilty, and that no one was forcing him to do so. Defendant further acknowledged that the answers on the plea form were all true, that he discussed them with counsel, and that he signed the form as a result.

Defense counsel sought to elicit a factual basis for the plea. Defendant indicated that on the day in question, he was in the company of Louie Scribanich, who picked him up in his car and "had two people in the back seat." Defendant claimed that Scribanich pulled over at some point and "jumped out [of the car] with both of [th]em[.]" Defendant stayed in the car until Scribanich returned with "[o]ne of the guys' wallet." Scribanich claimed he had to "rough up" one of the men to get the wallet, but defendant stated that he did not know about that until Scribanich returned. He nonetheless took $200 that Scribanich gave him from the wallet.

When the prosecutor asked if defendant was aware that Scribanich was going to rob the men when he entered the car, defendant responded, "No, no, he said . . . he was bringing them to his brother's house because his brother needs help with the house." Defendant claimed that when Scribanich took the two men out of the car, he looked and saw them "arguing." Defendant had "a feeling right away," though Scribanich did not tell him, that he was going to rob the men. The prosecutor told the judge the factual basis was inadequate.

The judge told defense counsel to "speak with [his] client." Defense counsel, however, claimed the "factual basis . . . is acceptable[]" because the victim "has not reached the point of safety[.]" The judge responded, indicating he was not accepting the plea with the factual basis as given, resulting in counsel asking for a moment with defendant. Noting the "matter ha[d] been on so many times[,]" the judge stated, "[i]t's either a plea or it's a trial and it's this afternoon[.]"

After a break in the proceedings, the length of which is undisclosed in the record, defense counsel resumed the questioning. Defendant acknowledged that when Scribanich exited the car with the two men, he told defendant, "[I]f they don't give it up . . . he's gonna . . . rough 'em up or he's gonna threaten 'em." Defendant admitted that he acted as a "lookout" at Scribanich's request. The following colloquy then took place:

Judge: Is there any question in your mind, because when you started to give us information before you [] led me to believe that you became aware of this subsequently, but what you're stating now under oath, is that before [] this crime started you knew exactly what was going to happen.

Defendant: Yes.

Judge: Now is that the truth?

Defendant: Yes, that is the truth, Your Honor.

Judge: And you acted as a lookout?

Defendant: Yes, I did.

Judge: Knowing what would happen to the victim?

Defendant: Yes, I did.

The guilty plea was accepted.

On September 16, 2005, the judge sentenced defendant to eight years in prison with an 85% period of parole ineligibility. In doing so, he rejected defense counsel's argument that NERA was inapplicable to the charge. He imposed four, concurrent, four-year sentences on the violations of probation.

Defendant's direct appeal was limited solely to the alleged excessive nature of his sentence. On January 10, 2006, we affirmed. State v. Bussanich, No. A-0539-05 (January 10, 2006).

On May 18, 2007, defendant filed a PCR petition in which he claimed trial counsel "never met with [him] to review or discuss [] discovery[,]" and "never conducted any investigation of the facts and circumstances" of the indictment. Defendant claimed trial counsel never investigated Scribanich's involvement or contacted the alleged victims. Defendant further alleged that trial counsel only wanted to "dispose of [his] case as quickly as possible[,]" and "never [] presented [defendant] with a full assessment of [his] options[.]" Defendant felt "intense pressure" at the plea hearing because he "did not want to proceed to trial with [trial counsel] as [his] attorney." Lastly, defendant alleged that trial counsel "advised [him] that there was a distinct possibility that any sentence that [he] received would not necessarily be subject to" NERA. Defendant claimed that had he known the NERA sentence was a "foregone conclusion," it was "highly unlikely [] [he] would have accepted the existing plea arrangement. Instead, [he] would have asked [trial counsel] to attempt to negotiate a new plea arrangement[] or [he] would have proceeded to trial."

At the hearing on the petition, held on December 21, 2007, defendant raised three arguments. First, he claimed that the factual basis he provided for his guilty plea was inadequate. Second, he claimed trial counsel provided incorrect legal advice regarding the applicability of NERA to the charge of second-degree robbery. Third, defendant claimed trial counsel provided ineffective assistance because he failed to conduct adequate investigation of the events surrounding the crime.

After reserving on the motion, on December 26, 2007, the judge issued a written opinion denying defendant's petition. Initially, he concluded defendant's claims were procedurally barred by Rule 3:22-4. Nonetheless, he proceeded to consider the merits of the petition and found that defendant's factual basis for the guilty plea was sufficient. The judge also concluded defendant was "aware of his sentence and that NERA was applicable." Lastly, the judge concluded that defendant's ineffective assistance claim was not supported by the transcript of the plea proceedings in which defendant affirmatively represented his attorney had met with him, discussed the charges, answered all his questions, and fully satisfied defendant with his representation. Moreover, the judge found that trial counsel "was able to obtain a generous plea agreement," noting the significant custodial exposure defendant avoided by pleading guilty. He entered the order under review on January 15, 2008.

Before us, defendant argues that, at a minimum, he was entitled to an evidentiary hearing on his petition because his claims involved matters outside the record. He notes that "there [is] no formal record of the conversation between [defendant] and his [trial counsel] that magically enabled [defendant] to establish a minimally adequate factual basis." He also notes the lack of a "formal record of any conversations concerning the advice [defendant] received from [trial counsel] concerning NERA." Lastly, he claims there is no record regarding trial "counsel's thinking concerning his decision to not investigate Scri[b]anich's role in the robbery." None of these arguments persuade us that an evidentiary hearing was necessary to conclude that defendant's petition lacked sufficient merit to warrant relief.

The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" 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). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2009); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Additionally, "[t]o establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding" under the Strickland/Fritz test. Preciose, supra, 129 N.J. at 463.

To the extent defendant's claim relates to the inadequacy of the factual basis of his plea, it is barred procedurally by Rule 3:22-4. In the context of the ineffective assistance of counsel claim, defendant fails to make any specific allegation of trial counsel's deficient performance as it relates to the factual basis for the plea. The transcript reveals the judge meticulously questioned defendant regarding his role in the robbery, and defendant clearly and unequivocally stated he served as the "lookout," a fact he has never since denied.

Defendant's claim that trial counsel provided ineffective assistance because of advice he gave regarding the applicability of NERA is equally unavailing. We accept that NERA applied to this case, and that there was no reasonable argument to be made to the contrary. Plaintiff never explicitly states in his petition what trial counsel said to him regarding this issue. Assuming arguendo that based upon conversations he had with counsel, defendant was left with an impression that he could present a colorable claim that NERA did not apply, he still failed to present a prima facie case warranting an evidentiary PCR hearing.

In the context of a guilty plea, a defendant can only meet the second prong of the Strickland/Fritz test by demonstrating "'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.'" State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Defendant's verified petition was quite equivocal regarding the "reasonable probability" that he would not have pled guilty had he known the virtually certainty that NERA would apply. He claimed that instead of pleading guilty, "[he] would have asked [trial counsel] to attempt to negotiate a new plea arrangement[] or [he] would have proceeded to trial." There is no support whatsoever for the proposition that his attorney could have negotiated a more favorable plea bargain under any circumstances. At the PCR hearing, the judge took note of the generous nature of the plea bargain, limiting defendant's exposure to ten years, when, had he proceeded to trial, he would have been exposed to twenty years on the robbery charge, and four additional, potentially consecutive, sentences on the violations of probation.

More importantly, regardless of the conversations he had with his attorney, the record provides abundant evidence that defendant was fully appraised of the likelihood that a parole disqualifier would be imposed under NERA. As noted above, the judge interrupted early in the proceedings to tell defendant he would be subject to NERA. He repeated that again when he addressed defendant directly, who answered unequivocally that he understood he was facing a sentence of ten years with an 85% parole disqualifier. Although the plea form defendant executed is not part of the appellate record, we note that the standard form utilized in NERA cases contains specific questions regarding the applicability of, and consequences of, the statute. Defendant acknowledged signing the form after reviewing it with his attorney and having had his questions answered.

Thus, defendant's own verified petition fails to set forth specific details of the representations his attorney made to him regarding this subject, it fails to unequivocally state that it was "reasonabl[y] probab[le]" that he would not have pled guilty if he knew NERA would apply, and the record belies any claim that defendant was functioning under a misapprehension of the statute's applicability.

Lastly, defendant's argument that he was entitled to an evidentiary hearing to explore "counsel's thinking concerning his decision to not investigate Scri[b]anich's role in the robbery" is completely without merit. Trial counsel clearly has an obligation to conduct an investigation of the facts surrounding the charges, and the failure to do so may demonstrate a deficient level of representation. See State v. Savage, 120 N.J. 594, 618 (1990) (counsel has a duty to reasonably investigate the case or otherwise reasonably determine that such investigation was not necessary) (citing Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L.Ed. 2d at 695).

However, defendant fails to argue how trial counsel's alleged failure to investigate Scribanich's role in the robbery would matter. At the PCR hearing, the prosecutor noted that the victim could only identify defendant and could not identify Scribanich. The pre-sentence investigation report, which is part of the appellate record, includes copies of the police reports in which defendant gave the police an oral confession to the crime, naming Scribanich as his accomplice.

Assuming Scribanich would speak to anyone investigating his alleged role in the robbery, defendant fails to assert any facts that demonstrate how it would be helpful to his case. As we have noted, since he pled guilty, defendant has never denied serving as Scribanich's accomplice. Thus, we fail to see how this claim meets the second prong of the Strickland/Fritz test.

A "court is not obligated to conduct an evidentiary hearing to allow [the] defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008). Defendant failed to present a prima facie case for relief as to any of these claims and the PCR judge properly denied his petition.

Affirmed.

We are perplexed by this comment since the victim's safety is of no particular relevance to the robbery charge, though it may have been relevant to the kidnapping charge that was being dismissed. See N.J.S.A. 2C:13-1(c)(1) (making kidnapping a second-degree crime "[i]f the actor releases the victim unharmed and in a safe place prior to apprehension[.]"

Defendant was represented at sentencing by different counsel from a different law firm.

In the verified petition, Scribanich's name was spelled "Scrivanich." It is unclear from the record what is the proper spelling of the name, so we shall utilize the spelling as it appears in the transcript.

The same judge presided at all proceedings.

Trial counsel's reference to Oliphant, supra, was inapposite. The Court there was dealing with NERA as it existed prior to the 2001 amendment that made the statute applicable to certain enumerated first- and second-degree crimes, including robbery. State v. Parolin, 171 N.J. 232-33 (2002).

(continued)

(continued)

15

A-2872-07T4

June 3, 2009

 


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