STATE OF NEW JERSEY v. ELPIDIO J. GARCIA-REYES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0277-08T40277-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELPIDIO J. GARCIA-REYES,

Defendant-Appellant.

_____________________________________________________________

 

Submitted January 13, 2010 - Decided

Before Judges Graves and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

04-01-0139.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Kimmo Z. Hussain, Designated

Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Nicole M. Ghezzar,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Elpidio Garcia-Reyes appeals from an order denying his petition for post-conviction relief (PCR) entered on June 11, 2008. We affirm.

On November 30, 2004, as part of a plea agreement, defendant pled guilty to first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a)(1), for causing the death of Jose Efrain Medrano Hernandez on August 4, 2003. This was a lesser-included offense of the knowing and purposeful murder for which he was indicted. In exchange for his plea, the State agreed to recommend that defendant's sentence would be limited to an eighteen-year prison term, subject to an eighty-five percent parole ineligibility term under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to dismiss the remaining counts of the indictment. On March 10, 2005, defendant was sentenced in accordance with the plea agreement to an eighteen-year prison term with a mandatory period of parole ineligibility under NERA.

Although his sentence was consistent with the plea agreement, defendant appealed, claiming his sentence was excessive. On September 19, 2006, following oral argument pursuant to Rule 2:9-11, we affirmed. State v. Elpidio J. Garcia-Reyes, No. A-5058-04T4 (App. Div. Sept. 19, 2006), certif. denied, 189 N.J. 427 (2007).

Defendant's petition for PCR was heard on May 29, 2008. During oral argument, defendant's PCR counsel acknowledged that Francisco Paterno, who had witnessed the shooting, told the police there was some type of a disagreement between the victim and defendant "over a woman." In addition, Paterno explained in his statement how defendant "came out of the room, pointed the gun at the victim, muttered something about, 'I'm going to get you. I'm going to get you back for that,' or, 'I'm fed up with this.' And then the gunshot went off." Nevertheless, in a letter brief in support of his PCR petition, defendant argued he was "guilty only of the lesser-included offense charge of reckless manslaughter" because there was an inadequate factual basis for a guilty plea to aggravated manslaughter.

The PCR court denied defendant's petition and set forth its reasons in a twelve-page written decision on June 11, 2008. The court ruled defendant's petition was procedurally barred by Rule 3:22-4 because he did not claim there was an insufficient factual basis for his plea on his direct appeal. The court addressed the merits of defendant's petition, however, and found defendant entered his plea "voluntarily, knowingly, and intelligently with a sufficient factual basis." In addition, the court concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel:

The facts surrounding the case are abundantly clear; petitioner consumed alcohol, picked up a gun, pointed it at the victim and the gun discharged causing the death of the victim. Thus it follows that counsel was not ineffective for not preventing petitioner [from] entering a guilty plea. As such, petitioner has failed to show that counsel's representation was deficient as measured from an objective standard of reasonableness. . . .

Petitioner cannot rationally say he would have insisted going to trial, especially considering that petitioner's roommates witnessed the event in question and subsequently provided a detailed statement to the police implicating petitioner as the shooter. These statements would hold a tremendous amount of weight as to petitioner's guilt since the witnesses personally know the petitioner and had a clear unobstructed view of the shooting. Had petitioner gone to trial, there is a strong probability that a guilty disposition of a more serious form of murder would have resulted exposing petitioner to a greater sentence. Therefore, petitioner has failed to establish a prima facie case and as a result, no evidentiary hearing shall be granted.

On appeal from the denial of his PCR petition, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN BARRING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS.

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL ADVISED HIM TO PLEAD GUILTY TO AGGRAVATED MANSLAUGHTER WHERE THERE EXISTED NO FACTUAL BASIS FOR SUCH A FINDING.

A. A PROPER FACTUAL BASIS DID NOT EXIST TO SUPPORT DEFENDANT'S PLEA.

B. DEFENDANT'S CONDUCT DID NOT CONSTITUTE 'EXTREME INDIFFERENCE TO HUMAN LIFE.'

We conclude from our review of the record that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Kevin G. Callahan with only the following comments.

"[A] person is guilty of aggravated manslaughter if the actor causes death with 'an awareness and conscious disregard of the probability of death.'" State v. Wilder, 193 N.J. 398, 409 (2008) (quoting State v. Jenkins, 178 N.J. 347, 363 (2004)). In this case, when defendant was questioned by the court during the entry of his plea on November 30, 2004, he admitted he consumed "a lot of alcohol" before he shot the victim in the neck, and he knew that the victim would probably die if the gun was fired. In addition, he admitted causing the victim's death under "circumstances manifesting extreme indifference to human life, not caring whether [the victim] lived or died." Thus, defendant's statements established an adequate factual basis for the entry of his guilty plea, and the procedure utilized here--a statement by others, "which a defendant acknowledges"--was expressly authorized by the Court in State ex rel. T.M., 166 N.J. 319, 327 (2001).

 
Affirmed.

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A-0277-08T4

January 28, 2010