STATE OF NEW JERSEY v. VALENTINO RIVERA

(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NOT FOR PUBLICATION WITHOUT THE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-5378-06T45378-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

VALENTINO RIVERA,

Defendant-Appellant.

__________________________________

 

Submitted: May 6, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-02-0701.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Valentino Rivera appeals from the denial of his petition for post-conviction relief (PCR). He is serving concurrent seven-year terms of imprisonment subject to the No Early Release Act (NERA) following entry of a guilty plea to second degree manslaughter, contrary to N.J.S.A. 2C:11-4b(3), and second degree eluding, contrary to N.J.S.A. 2C:29-2b. We vacate the NERA parole ineligibility term imposed on the second degree eluding charge. In all other respects, the order denying the PCR petition is affirmed.

The charges arise from a high-speed police chase through the streets of Newark. Defendant lost control of the motorcycle he was driving and crashed into a light pole. Defendant's passenger died.

Defendant entered a guilty plea to second degree manslaughter, N.J.S.A. 2C:11-4b(3), and second degree eluding, N.J.S.A. 2C:29-2b, in accordance with a negotiated plea agreement. The State agreed to recommend concurrent seven-year terms of imprisonment subject to NERA and defendant was sentenced in accordance with that recommendation. Defendant appealed. This court rejected defendant's argument that his sentence was excessive. State v. Rivera, No. A-3037-03 (App. Div. Apr. 29, 2004).

On October 19, 2005, defendant filed a PCR petition. Assigned counsel filed a supplemental brief on defendant's behalf in which he argued that defendant was under the influence of medication at the time he entered his guilty plea. Therefore, defendant contended that the plea could not be considered voluntary. Defendant also asserted that he did not receive the effective assistance of counsel because defense counsel failed to investigate the circumstances of the crash. If counsel had done so, defendant asserted that she would have learned that defendant lost control of his motorcycle because it was "clipped" by the pursuing police car.

Judge Isabella found that defendant submitted no evidence from which he could infer that defense counsel committed any errors that caused any prejudice to defendant. Defendant presented no evidence to support his allegation that he could not understand the nature of the plea offer or the consequences of the proceeding due to medication. The judge also noted that he presided at the plea proceeding and defendant appeared to be lucid and aware of his rights and the consequences of the plea.

As to the allegation that defense counsel inadequately investigated the circumstances of the crash, at oral argument of the petition the judge noted that the allegation that the pursuing police car bumped or clipped defendant's motorcycle was known at the time of the plea. Furthermore, the only witnesses to the accident were the police officers, defendant and his deceased passenger. The judge inquired what information a further investigation would have disclosed about the cause of the accident. Neither defendant, who spoke at oral argument, nor assigned counsel responded to this inquiry.

On appeal, defendant raises the following arguments:

POINT I

THE SENTENCE IMPOSED BY THE TRIAL COURT ON COUNT III OF ESSEX COUNTY INDICTMENT NO. 02-02-0701 WAS ILLEGAL SINCE ELUDING UNDER N.J.S.A. 2C:29-2b IS NOT A PREDICATE OFFENSE UNDER THE NO EARLY RELEASE ACT (N.J.S.A. 2C:43-7.2).

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A MEANINGFUL HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.

On appeal, defendant argues that second degree eluding is not an offense that requires imposition of the NERA parole ineligibility term. He also reiterates the ineffective assistance of counsel arguments presented before Judge Isabella.

As a preliminary matter, we note that defendant neither raised the issue of the illegality of the NERA parole ineligibility term for second degree eluding on direct appeal nor in his petition. Nevertheless, we consider the issue because illegality of sentence is a ground for PCR, Rule 3:22-2(c); a petition to correct an illegal sentence may be submitted at any time, Rule 3:22-12(a); and the obvious error strongly suggests that we should exercise original jurisdiction and proceed to address the issue without a remand for consideration of the issue on the merits.

N.J.S.A. 2C:43-7.2a provides that an enhanced parole ineligibility term must be imposed for certain enumerated offenses. Second degree eluding is not one of the enumerated offenses. See N.J.S.A. 2C:43-7.2d. The imposition of a NERA parole ineligibility term on the second degree eluding charge is not authorized by law, thereby rendering that aspect of the sentence illegal. We vacate the parole ineligibility term imposed on that charge and remand for entry of an amended judgment of conviction.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, a defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, a defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "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. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that 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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Defendant bore the burden to establish a prima facie case of ineffective assistance of counsel. Here, defendant asserted that defense counsel allowed him to proceed to enter a guilty plea while he was under the influence of the effects of the injuries received in the crash and medicine prescribed for his injuries and also a possible mental health condition. Notably, his petition provided no evidence of any physical or mental impairment or recitation of any medications defendant took at or about the time of the plea and what, if any, effects they might have had on his cognitive abilities.

Defendant also failed to suggest what information a further investigation of the circumstances of the accident would reveal. Assuming the pursuing police clipped or bumped defendant's motorcycle, he does not explain how the result would have been different.

An evidentiary hearing will be conducted when defendant establishes a prima facie case of ineffective assistance of counsel. A prima facie case is not established simply by identifying a host of issues that may warrant relief assuming the requisite evidence is assembled. Here, defendant has done nothing more than identify issues. He has provided no evidence to support that he lacked the cognitive ability to understand the plea agreement or what a further investigation would have revealed and its effect on his decision to accept a very favorable plea agreement. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (when claiming ineffective assistance of counsel in context of a guilty plea, the defendant must show there is a reasonable probability that, but for counsel's deficiencies, the defendant would not have proceeded with the guilty plea).

 
We vacate the NERA parole ineligibility term on the second degree eluding conviction and remand for amendment of the Judgment of Conviction. In all other respects, the denial of the petition for PCR is affirmed.

N.J.S.A. 2C:43-7.2.

(continued)

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A-5378-06T4

June 1, 2009