STATE OF NEW JERSEY v. JOSEPH A. TENAGLIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1045-09T41045-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH A. TENAGLIA,

Defendant-Appellant.

_______________________________________

 

Argued May 17, 2010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-04-0534.

Glenn D. Kassman argued the cause for appellant.

Samuel Marzarella, Supervising Assistant County Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel and on the brief).

PER CURIAM

Defendant Joseph A. Tenaglia appeals from an order entered by the Law Division on September 16, 2009, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with second degree eluding, N.J.S.A. 2C:29-2(b) (count one); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (counts two, three, four and five); and fourth degree resisting arrest, N.J.S.A. 2C:29-2(a) (count six). On July 18, 2005, defendant pled guilty to count one and count two, which was amended to attempted aggravated assault.

The plea agreement provided that the State would waive the imposition of an extended term and defendant could be subject to a term of ten years for eluding and one and one-half years for attempted aggravated assault. The sentence to be imposed would be in the discretion of the court, as would the determination of whether the sentences would be consecutive or concurrent to each other and another sentence defendant was then serving.

Defendant was sentenced on November 18, 2005. The court sentenced defendant to ten years of incarceration on count one, with a five-year period of parole ineligibility; and a concurrent eighteen-month term on count two. The sentences were consecutive to a sentence defendant was then serving. Defendant filed an appeal from the judgment of conviction dated November 18, 2005, and the appeal was heard on our excessive sentence calendar. We affirmed defendant's sentence. State v. Tenaglia, No. A-2844-05 (App. Div. Aug. 23, 2006).

Defendant then filed a petition for PCR. Defendant alleged that he had been denied the effective assistance of counsel and sought an evidentiary hearing on his petition. On August 26, 2009, the court heard arguments on the petition and on September 16, 2009, placed its decision on the record. The court concluded that defendant had not been denied the effective assistance of counsel. The court memorialized its decision in an order dated September 16, 2009. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE PCR COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS ALLEGATIONS THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHO MISINFORMED HIM AS TO THE PENAL CONSEQUENCES OF HIS PLEA

Having reviewed the record in this matter, we are convinced that these arguments are entirely without merit. We accordingly affirm the order denying PCR substantially for the reasons stated by Judge Den Uyl in his decision from the bench on September 16, 2009. R. 2:11-3(e)(2). We add the following comments.

Defendant argues that the PCR court erred by failing to conduct an evidentiary hearing on his claim that he was denied the effective assistance of counsel when he entered his plea. Defendant alleges that, before he entered his plea on July 18, 2005, his attorney advised him that he needed to take the plea offer that day because the law might change soon. Defendant says that his attorney told him that, if he took the plea offer, he would receive a presumptive sentence of seven years, with a three and one-half year period of parole ineligibility.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and counsel's deficient performance prejudiced the defense. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). We are satisfied that the PCR court correctly found that defendant failed to establish that he was denied the effective assistance of counsel.

In its decision from the bench, the PCR court found that defendant had entered his plea with a full understanding of the penal consequences of doing so, regardless of advice he was allegedly given concerning the law. The record supports the court's finding. At the plea hearing, defendant stated that he had reviewed the plea form with his attorney. The form stated that defendant could be sentenced up to ten years for eluding and one and one-half years for attempted aggravated assault. Moreover, at the plea hearing, the trial court reviewed the plea agreement with defendant. In the colloquy between defendant and the court, the court emphasized that the aggregate maximum exposure was eleven and one-half years of incarceration. The court stated that, in its discretion, it could impose the maximum term of ten years with a period of parole ineligibility of up to one-half of the total sentence. The colloquy continued:

[THE COURT:] So you entered into this plea bargain knowing full well that there is a strong likelihood that on your sentencing day you will get the maximum term of confinement allowed under the law for these two counts, and also be sentenced to the maximum term of parole ineligibility under these two counts?

[DEFENDANT:] I understand.

The fact that defense counsel may have incorrectly predicted that changes in the sentencing law would preclude imposition of a sentence longer than seven years, does not establish that counsel's representation of defendant was deficient. Defendant acknowledges that a defense attorney is not expected to be a prognosticator of changes in the law. Furthermore, an erroneous prediction concerning a sentence is not a basis for vacating a guilty plea rendered because of it. State v. DiFrisco, 137 N.J. 434, 455 (1994) (citing Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970)). A plea may not be set aside unless a defendant establishes "that he was unaware of the nature and consequences of his plea." Id. at 453. Here, the record shows that defendant was made aware of the potential penal consequences of his plea.

The PCR court also found that defendant failed to establish that, were it not for his attorney's allegedly erroneous advice concerning the potential sentence, he would have rejected the plea offer. The PCR court pointed out that, because of defendant's extensive prior criminal record, it was likely that he would be sentenced to an extended term pursuant to N.J.S.A. 2C:43-7.1. Therefore, defendant would have been subject to a sentence of up to twenty years for second degree eluding. N.J.S.A. 2C:43-7(a)(3). The PCR court correctly found that defendant had not shown that "but for the alleged errors of counsel, he would have refused the plea and would have, instead, demanded to go to trial risking the possibility of an extended term that would have been imposed had he been convicted on these offenses."

Defendant additionally argues that the PCR court erred because the court did not conduct an evidentiary hearing on his petition. We disagree. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

 

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A-1045-09T4

June 18, 2010