STATE OF NEW JERSEY v. JOSE PEREZ

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4547-07T44547-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE PEREZ,

Defendant-Appellant.

_______________________________________

 

Submitted April 28, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-02-0347 and 05-02-0389.

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

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

PER CURIAM

Defendant Jose Perez appeals from an order entered by the Law Division on February 21, 2008, denying his petition for post-conviction relief (PCR). We affirm but remand to the trial court for entry of a corrected judgment of conviction.

Defendant was charged under Essex County Indictment No. 05-02-0347 with two counts of second-degree robbery, contrary to N.J.S.A. 2C:15-1. Defendant was also charged under Essex County Indictment No. 05-02-0389 with one count of second-degree burglary, contrary to N.J.S.A. 2C:18-2. On May 9, 2005, defendant pled guilty to all three charges.

As part of the plea agreement, the prosecutor agreed to recommend that defendant be sentenced on each count to seven years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with all sentences to run concurrently. Defendant was sentenced on June 23, 2005 in accordance with the plea.

On June 21, 2007, defendant filed a pro se petition for PCR. Defendant alleged that he was denied the effective assistance of counsel. The PCR court appointed counsel for defendant, who filed a brief in support of the petition. The PCR court considered the petition on February 21, 2008. After hearing the argument of counsel, the court placed its decision on the record. On that same date, the court filed a written opinion memorializing the decision that had been placed on the record. The court found that defendant had not been denied the effective assistance of counsel and denied the petition. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT ONE

THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT THE RIGHT TO BE PRESENT AT HIS INITIAL HEARING FOR POST[-]CONVICTION RELIEF.

POINT TWO

THE COURT ABUSED ITS DISCRETION IN FAILING TO FIND DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL, CONSTITUTIONALLY GUARANTEED, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

We have carefully considered these arguments and conclude that they are entirely without merit. We affirm substantially for the reasons stated by the PCR court in the decision that it placed on the record on February 21, 2008, and in the written opinion dated February 21, 2008. R. 2:11-3(e)(2). We add the following.

Defendant argues that the PCR court erred by denying defendant of his "right" to be present for the argument on his petition. We disagree.

Rule 3:22-10 pertains to the presence of a defendant at a hearing on a PCR petition. The rule provides that, "[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."

Here, the PCR court determined that defendant's presence was not required because the issues raised in the petition did not require oral testimony and the issues could be adequately addressed based on the parties' written submissions and the arguments of counsel. The court also found that defendant's presence was not required to assist PCR counsel in advancing defendant's claims. In its written opinion of February 21, 2008, the court stated that PCR counsel "was able to adequately put forth . . . [defendant's] arguments without his physical presence." We are satisfied that defendant did not have a right under Rule 3:22-10 to be present for the argument on his petition, and the trial court did not abuse its discretion by considering the petition in his absence.

Defendant also argues that the PCR court erred by finding that he did not present a prima facie case of ineffective assistance of counsel. Again, we disagree.

Defendant's ineffective-assistance claim is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).

In his petition, defendant asserted that his trial attorney was ineffective because he did not object when the sentencing court failed to make findings of aggravating and mitigating factors on the record. The PCR court found that, while the sentencing court did not set forth on the record the basis for its findings, defendant had not been denied the effective assistance of counsel because his trial attorney had not insisted upon such findings.

We note that defendant's judgments of conviction indicate that the trial court found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). Here, defendant was sentenced in accordance with his plea. As the PCR court observed in its written opinion, even if counsel had objected, the sentencing court would have merely articulated the basis for its findings and imposed the same sentence. We agree.

Defendant also argues that the sentencing court should have found a mitigating factor under N.J.S.A. 2C:44-1b(1) (defendant's conduct neither caused nor threatened serious harm). The PCR court determined, however, that such a finding of mitigating factor N.J.S.A. 2C:44-1b(1) would have been "wholly and completely inappropriate under the circumstances of this case."

In its written opinion, the PCR court noted that defendant was charged with two counts of second-degree robbery and one count of second-degree burglary. At the plea hearing, defendant provided a factual basis for his plea to the two counts of robbery. He admitted that he did "snatch" a necklace "with force" from the victim's neck in one incident, and admitted doing the same to a different victim on another occasion. Defendant also provided a factual basis for his plea to the burglary charge. Defendant admitted that he was in a residence when its occupant returned. Defendant said that he engaged in a struggle with the resident and struck him in the mouth.

The PCR court found that the mitigating factor under N.J.S.A. 2C:44-1b(1) was not "by any stretch of the imagination" applicable here. The court also determined that trial counsel was not deficient by failing to raise that issue with the sentencing court and, even if the issue had been raised, the sentence would have been the same. The record supports the court's determinations.

In addition, defendant argues that trial counsel erred by failing to challenge the validity of his arrest warrant. He claims that an "improper individual" affirmed the signature of the arresting officers, and the warrant did not reflect a finding of probable cause.

The PCR court found, however, that the Deputy Municipal Court Administrator had issued the warrant, as permitted by Rule 3:3-1(a)(1), and although the warrant did not indicate that a finding of probable cause had been made, the warrant could have been amended to correct that technical deficiency. The PCR court determined that, even if counsel had been deficient in failing to raise these issues, there is no evidence that the result here would have been different. The record supports these findings.

In short, the PCR court correctly determined that defendant did not present a prima facie case of ineffective assistance of counsel under Strickland. Accordingly, we conclude that an evidentiary hearing was not required in the matter, and the court did not err by denying PCR.

We note, however, that the judgment of conviction entered by the trial court with regard to Indictment No. 05-02-0389 states that defendant was charged and convicted of robbery, contrary to N.J.S.A. 2C:15-1. In that indictment, however, defendant was charged with burglary, not robbery. He pled guilty to burglary. We therefore remand to the trial court for entry of a corrected judgment of conviction.

 
Affirmed and remanded to the trial court for entry of a corrected judgment of conviction.

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A-4547-07T4

May 19, 2009