STATE OF NEW JERSEY v. ALBERT LOPEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2914-05T42914-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT LOPEZ,

Defendant-Appellant.

__________________________

 

Submitted December 15, 2008 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 01-07-2238, 01-02-0587, 02-06-2160 and Accusation No. 01-10-3341.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Albert Lopez appeals from a January 3, 2006 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On February 20, 2001, a Camden County grand jury issued Indictment No. 0587-02-01, charging defendant with twenty-six counts of third- and fourth-degree issuing or passing a bad check, N.J.S.A. 2C:21-5; twenty-six counts of third- and fourth-degree theft by deception, N.J.S.A. 2C:20-4; and one count of third-degree attempted theft by deception, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-4. On July 31, 2001, a Camden County grand jury issued a second indictment, No. 2238-07-01, charging defendant with one count of third-degree issuing or passing a bad check, N.J.S.A. 2C:21-5.

On October 31, 2001, defendant waived his right of indictment and consented to the entry of Accusation No. 3341-10-01, charging him with one count of second-degree theft by deception, N.J.S.A. 2C:20-4. Defendant simultaneously entered a guilty plea to the single count of Indictment No. 2238-07-01, the single count of the accusation, and thirteen counts of Indictment No. 0587-02-01. The plea was "open," that is, entered without a sentence recommendation by the State and with the understanding that defendant would be sentenced at the discretion of the court. The open plea was conditioned upon whether defendant was charged with new offenses while out on bail pending sentence. The terms of the plea included defendant's payment of restitution in the amount of $36,661.89 on the Indictment No. 0587-01-02 counts, $1500 as to the single count of Indictment No. 2238-07-01, and $102,826.36 as to Accusation No. 3341-10-01. If when he returned to be sentenced, defendant had no new charges filed against him, the plea bargain called for imposition of a seven-year sentence.

When defendant returned to court on February 19, 2002, he had been charged with new crimes. As a result, the judge sentenced defendant within the appropriate range to eight years on the second-degree theft by deception on Accusation No. 3341-10-01, concurrent four-year terms on the third-degree passing bad checks counts of Indictment No. 0587-02-01, concurrent twelve-month terms on the fourth-degree passing bad checks counts of Indictment No. 0587-02-01, and a concurrent four-year term on the single third-degree passing bad checks count of Indictment No. 2238-07-01. Thereafter, defendant filed a notice of appeal, and the matter was remanded for re-sentencing by consent. Defendant was re-sentenced to a seven-year aggregate term on December 17, 2002. The appeal was dismissed when a notice of withdrawal was received from defendant on January 21, 2003.

In the interim, defendant was again indicted by a Camden County grand jury. Indictment No. 2160-06-02 charged defendant with two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one and seven); two counts of second-degree robbery, N.J.S.A. 2C:15-1 (counts five and eleven); three counts of third-degree theft from a person, N.J.S.A. 2C:20-3 (counts two, eight, and twelve); two counts of fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e) (counts three and nine); and four counts of fourth-degree impersonating a public servant, N.J.S.A. 2C:28-8(b) (counts four, six, ten, and thirteen).

On May 2, 2003, nearly four months after he withdrew his appeal on his first set of convictions, defendant entered a guilty plea to four amended counts of robbery on Indictment No. 2160-06-02. At the plea hearing, he was represented by a different attorney than the one who represented him on the earlier indictments. In exchange for his guilty pleas, the State agreed to recommend a seven-year sentence on each count subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently to each other and to the sentence that defendant was then serving. On July 11, 2003, the concurrent seven-year term subject to the 85% parole disqualifier on Indictment No. 2160-06-02 was imposed.

On March 25, 2004, defendant filed his petition for PCR. A supplemental letter brief was filed on August 8, 2004, by counsel designated by the Office of the Public Defender to represent defendant on the PCR application. After oral argument on December 16, 2005, the PCR judge issued a written opinion dated January 4, 2006, in which he denied the requested relief.

In his appeal brief, defendant raises the following points:

POINT ONE

THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT IN FAILING TO CONSIDER DEFENDANT'S AFFIDAVIT IN SUPPORT OF HIS PETITION FOR POST CONVICTION RELIEF (NOT RAISED BELOW).

POINT TWO

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF BASED UPON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.

POINT THREE

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

POINT FOUR

THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT THE RIGHT TO BE PRESENT AT HIS INITIAL HEARING FOR POST CONVICTION RELIEF (NOT RAISED BELOW).

Indictment No. 0587-02-01 alleged that defendant engaged in fifty-three acts of theft by deception and issuing or passing bad checks between March and July 2000. Indictment No. 2238-07-01 charged that defendant issued a check drawn on the account of Cellular World to his landlord in the amount of $1500. The accusation asserted that between April and July 2001, defendant unlawfully obtained by deception property having a total value in excess of $75,000, belonging to several individuals and companies. Defendant and his co-defendant Henry Sanchez made duplicates of a blank check issued by a company called Atlantic Subsea to Sanchez's employer and then used the forged checks to purchase computers, which they sold for a profit.

The last series of charges related to conduct that occurred while defendant and another co-defendant, Harry Dawes, were passing themselves off as undercover police officers. Using fake badges and wearing hats that said "Police," they drove a white vehicle with a flashing blue light on the dashboard, approached individuals in Camden and Lindenwold who appeared to be involved in drug purchases, and took their cash. They sometimes displayed firearms. They gave their victims a piece of paper with a "case number" written on it and told them that they could retrieve their cash at the police station. Defendant confessed to robbing approximately seventy people in this fashion.

Prior to the imposition of his first sentence on February 19, 2002, defendant filed a pro se motion to withdraw his guilty plea. He claimed that his attorney told him that he would not take the matter to trial, and that defendant had no choice but to accept the plea agreement. The sentencing judge addressed defendant directly on the record as to this application and discussed the plea colloquy with him. The court reminded defendant that he was satisfied with his attorney's representation when the plea was entered. He also reminded defendant that an adequate factual basis was established for the several offenses. The court denied defendant's motion and reiterated that defendant's pleas were entered knowingly.

Defendant was not present at oral argument on his PCR petition. Nonetheless, the court addressed all of the points raised in defendant's pro se brief as well as those raised in counsel's brief. The judge also considered an affidavit submitted by defendant in support of his claims.

The relevant principles are well-settled. In order to succeed on a claim of ineffective assistance of counsel, a defendant must establish that his counsel's performance was seriously deficient, and that the deficient performance prejudiced his right to a fair disposition of the charges. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).

The claim can be made even if charges are resolved by way of plea bargain. "[P]lea bargaining is a critical stage of [a] criminal proceeding at which the right of representation attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). In reviewing claims of ineffective assistance, courts apply a strong presumption that defense 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.

I.

Defendant's first claim, that the court committed plain error in failing to consider his affidavit in rendering a decision, lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). During the PCR hearing, the judge acknowledged having reviewed defendant's affidavit. He and defendant's PCR counsel engaged in an explicit discussion regarding the information contained in the affidavit. This claim, therefore, is simply not borne out by the record.

The court's written decision mistakenly states that no certification or affidavit in support of the PCR petition was submitted. It is abundantly clear from our review of the transcript of the oral argument that the judge had read defendant's affidavit and that the reference was a mere oversight.

II.

Rule 3:22-3 provides that PCR is not a substitute for direct appeal. Similarly, PCR is not an opportunity to relitigate issues already decided on the merits. R. 3:22-5. A prior adjudication on the merits of an issue is conclusive, and the issue cannot be revisited in PCR proceedings. Ibid. In addition, petitioners may be procedurally barred from PCR by Rule 3:22-4 if they could have, but did not, raise a claim in a prior proceeding, or in an appeal taken from such a proceeding, subject to specific exceptions related to fundamental justice or constitutional claims. State v. Preciose, 129 N.J. 451, 459 (1992).

Defendant contends that to raise any procedural bar to his assertion that his first attorney coerced him into pleading guilty as to Accusation No. 3341-10-01 and Indictment Nos. 2238-07-01 and 0587-02-01 is fundamentally unfair because the claim could not have been addressed on direct appeal. We do not agree.

Defendant tried to withdraw his guilty pleas due to the alleged coercion by his attorney immediately before he was sentenced on February 19, 2006. That motion was denied because the sentencing judge was satisfied that defendant knowingly and voluntarily entered into his guilty plea. The judge found no factual basis for the claim of coercion.

Defendant could have readily sought review of the court's decision denying the plea withdrawal motion on direct appeal. His failure to do so bars any reconsideration of the issue in a PCR petition under the guise of ineffective assistance of counsel. R. 3:22-4; State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000); State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

Even if we were to ignore this procedural impropriety, defendant's allegations are nothing more than "bald assertions" unsupported by any facts. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). And these bald assertions are contradicted by the responses that defendant gave under oath during the entry of his guilty pleas. Defendant has simply failed to present any evidence that would constitute a prima facie case such as to warrant an evidentiary hearing. Preciose, supra, 129 N.J. at 462.

III.

Defendant also contends that his first trial counsel was ineffective in failing to inform him of his right to a restitution hearing before he entered his guilty pleas to Indictment Nos. 2238-07-01 and 0587-02-01 and Accusation No. 3341-10-01. Every criminal defendant "is entitled to know, with reasonable exactitude, the penal consequences of any criminal charge he or she is called upon to defend against." State v. Thomsen, 316 N.J. Super. 207, 214 (App. Div. 1998). The same is not true, however, of collateral consequences. State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987).

The PCR court, in reliance on State v. Samuels, 253 N.J. Super. 335, 341 (Law Div. 1991), found that because restitution was a collateral consequence, even if defendant's attorney had failed to inform him of his right to a hearing, that did not constitute ineffective assistance of counsel. The court further found that defendant's knowledge of the right to a restitution hearing would not have affected the outcome of the case because defendant did not dispute the amounts owed. See State v. Chung, 210 N.J. Super. 427, 435-36 (App. Div. 1986). This aspect of his analysis is key.

A sentencing court may conduct a hearing in order to assess a restitution amount when the issue is not resolved. N.J.S.A. 2C:44-2(c). In this case, however, defendant agreed to each of the restitution amounts. As to the accusation, defendant and the judge engaged in this exchange:

THE COURT: Sir, the . . . accusation indicates that the value was in excess of $75,000 and the tentative figure that's been suggested to the Court you heard is approximately $102,000 and change. Do you have any reason to disbelieve that the amount involved exceeded $75,000.

THE DEFENDANT: Not at if that's what they say it was, sir, then it was. I really don't I really have never had a figure on it.

THE COURT: Do you have any reason to disbelieve that

THE DEFENDANT: No, sir.

THE COURT: the amount was in excess of $75,000?

THE DEFENDANT: No.

Similarly, as to Indictment No. 2238-07-01, the following was said:

THE COURT: [Y]ou issued or passed a check, Number 159, drawn on the account of Cellular World to Alan Hickman in the amount of $1,500, knowing that Commerce Bank would not honor the check. Do you understand that?

THE DEFENDANT: Yes.

Finally, as to Indictment No. 0587-02-01, defendant's plea form specified that he agreed to restitution of $36,661.89.

Defendant does not indicate any prejudice that results from his attorney's purported deficiency. He does not even suggest that he would have insisted on a trial on the charges, or even a restitution hearing, had he known of this right. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); Chung, supra, 210 N.J. Super. at 435-36. Therefore, the purported failure to advise defendant of his right to a restitution hearing was not ineffective assistance, because he agreed to the amounts. At the time the plea was entered, he was afforded an opportunity to dispute the amount uring the plea colloquy, but declined to do so. On this point, defendant has again failed to make a prima facie case in support of his claim for an evidentiary hearing on PCR.

IV.

Defendant's final point is equally without merit. Rule 3:22-10 provides that at a PCR hearing, "[a] defendant in custody may be present in court in the court's discretion and shall be entitled to be present when oral testimony is adduced on a material issue of fact within the defendant's personal knowledge." Rule 3:16 reiterates that "defendant's presence is not required . . . except as provided in R. 3:22-10, at a hearing on a petition for post conviction relief."

The rules are designed to lessen the administrative burdens and security risks associated with bringing prisoners to court to hear the oral arguments of counsel when no testimony will be elicited. Defendant contends that by referring to his pre-sentence report, the State adduced factual testimony that was unfairly considered in his absence. References to the record, including the contents of the presentence report, however, are not the equivalent of testimony. The arguments made by the State did not distinguish this case from any other case where no actual testimony is taken. The decision to allow oral argument to go forward in defendant's absence was a reasonable exercise of the court's discretion. See Pressler, Current N.J. Court Rules, comment 4 on R. 3:16 (2009) (citing State v. Dishon, 297 N.J. Super. 254 (App. Div.), certif. denied, 149 N.J. 144 (1997)).

Affirmed.

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A-2914-05T4

January 30, 2009