STATE OF NEW JERSEY v. BRIAN PALADINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1282-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN PALADINO,

Defendant-Appellant.

_____________________________________

December 16, 2010

Submitted October 27, 2010 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-05-1197.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Brian Paladino appeals the June 5, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

On May 3, 2001, a Bergen County Grand Jury indicted defendant on charges of first degree murder, N.J.S.A. 2C:11-3a(1)(2); fourth degree credit card theft, N.J.S.A. 2C:21-6c; third degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h; third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3; and third degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d.

The charges arose out of the stabbing death of defendant's roommate, Nicholas Frega, and defendant's use three days later of a credit card owned by a different victim. After killing Frega by stabbing him in the back of his neck near the base of his skull, defendant and a co-defendant dumped Frega's body into the Passaic River, disposed of the murder weapon, and disposed of other evidence. When arrested, defendant confessed to killing Frega and told police where he disposed of the evidence.

On April 13, 2004, defendant entered an unconditional guilty plea to all counts of the indictment except the count involving the co-defendant. In return for the plea and defendant's agreement to testify truthfully against the co-defendant, the State recommended a maximum sentence of thirty years without parole, the sentence on each count of the indictment to run concurrently. Following a plea colloquy, the trial court found defendant had pled guilty freely, voluntarily, and without any duress or coercion. The trial court also found that defendant understood the nature and consequences of the plea. Finally, the trial court found that despite long-term medical treatment, defendant was "lucid, cognitive of the surroundings, and was fully aware of the words being spoken today." The trial court commented that defendant was pleasant and articulate when he spoke. When asked by the court if he was satisfied with his attorney, defendant responded that his attorney had been excellent.

On May 27, 2004, the trial court sentenced defendant. After appropriate merger of charges, the court sentenced defendant to the term recommended by the State, namely, thirty years imprisonment without parole for first degree murder. The court sentenced defendant to concurrent terms of four years imprisonment on the remaining charges of hindering apprehension and fraudulent use of a credit card.

Defendant filed an untimely notice of appeal on September 20, 2006. He also filed a motion to file the appeal as within time. On December 18, 2006, the motion was denied without prejudice because defendant had not certified he had advised his pool attorney about his desire to appeal. Defendant did not re-file the appeal, but instead filed a PCR petition on December 10, 2007.

Defendant alleged his trial counsel was ineffective and the trial court erred in denying his pre-trial motions. PCR counsel was assigned and submitted a supplemental brief. Defendant asserted in the supplemental brief that his guilty plea was not voluntary and that his trial counsel was ineffective because counsel pressured defendant into accepting a plea agreement, did not share or meaningfully discuss discovery with defendant, did not investigate information that may have led to development of defenses or mitigating factors at sentencing, and did not explore with defendant the option of proceeding to trial.

On June 5, 2009, after oral argument on defendant's petition, the PCR judge found that defendant's plea was voluntary, knowing, and intelligent. The PCR judge noted that defense counsel had pursued a psychiatric defense and obtained at least one expert who issued a report. Additionally, the PCR judge noted that defense counsel filed numerous motions to suppress physical and testimonial evidence. Finally, the PCR judge found that even if defense counsel's performance was ineffective, it would not have changed the outcome due to the overwhelming evidence, including defendant's confession. Consequently, the PCR judge denied the PCR petition in an order dated June 5, 2009. On November 5, 2009, defendant filed this appeal.

Defendant raises one issue on appeal:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, 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.

Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. See State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-10(b). Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463.

"To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, ... and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." State v. DeFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)(internal quotations and citations omitted).

Defendant asserts trial counsel pressured him into pleading guilty and that trial counsel's performance was deficient in several ways: (1) he did not explain the possibility defendant could be convicted of lesser included offenses if he proceeded to trial; (2) he did not provide or sufficiently discuss the discovery provided by the State; (3) he did not discuss the various options available to defendant involving proceeding to trial rather than entering into a guilty plea; (4) he never discussed with the defendant any possible trial strategies based on the discovery; (5) he did not sufficiently investigate all relevant circumstances regarding the incident; and (6) he did not discuss with defendant any potential defenses which might even partially exonerate him.

The record refutes defendant's assertion that he was pressured to plead guilty. He represented in his plea form that no promises other than those mentioned on the form, and no threats, had been made in order to cause him to plead guilty. During the plea colloquy defendant informed the court that in addition to speaking to his attorney about the plea, he spoke to his mother, who was present during the plea hearing. Finally, defendant told the court that no one had threatened him to plead guilty, and that he was under neither coercion nor duress to plead guilty, but was doing so freely and voluntarily. In light of those considerations, and in light of the determinations of the trial and PCR judges that defendant entered his guilty plea freely and voluntarily, defendant has not established a prima facie claim of ineffective assistance of counsel requiring a hearing on his claim that trial counsel pressured him to plead guilty.

Defendant's allegations concerning discovery are conclusory and vague. Although defendant claims counsel did not provide him with discovery or did not sufficiently discuss discovery, defendant does not identify any such discovery and does not suggest what trial strategies may have been developed from discovery. Contrary to defendant's assertions, the PCR judge pointed out that defense counsel explored a psychiatric defense and obtained an expert report, moved to suppress defendant's confession, and moved to admit the victim's prior bad acts. Counsel's exploration of a psychiatric defense and motion practice suggest he was pursuing various trial strategies based on discovery and other considerations. "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant's allegations concerning discovery are merely bald assertions.

Similarly, defendant's claim that trial counsel did not sufficiently investigate all relevant circumstances regarding the incident is unsubstantiated by any facts that an investigation would have revealed, and unsupported by affidavits or certifications. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based on the personal knowledge of the affiant or the person making the certification." Ibid. Defendant has failed to assert any facts that additional investigation would have revealed.

Finally, defendant asserts his trial counsel did not discuss various options involving proceeding to trial. Defendant identifies two such "options": the possibility he would be convicted of a lesser included offense, and potential defenses which might partially exonerate him. We agree with the PCR judge that defendant's assertions do not establish a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial.

Assuming defendant has met the first deficiency prong of the Strickland-Fritz test, the second prong "prejudice" analysis in the case of a guilty plea often involves a determination of whether the result would have been different had the defendant proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370-71, 88 L. Ed. 2d 203, 210 (1985). For example, "where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense would have succeeded at trial." Ibid. Defendant's conviction of a lesser-included offense or his successful assertion of potential defenses which might have partially exonerated him are speculative and would not likely have succeeded at trial.

The evidence of first degree murder was overwhelming. Although defendant said in his confession that Frega was intoxicated and instigated the fatal altercation, defendant admitted to punching Frega in the face several times and knocking him to the floor, holding him down, then spinning him on his stomach and asking co-defendant to get him a knife. Defendant then stabbed Frega in the back of his neck, killing him.

Following the murder, defendant and co-defendant hid Frega's body underneath the trailer where they lived and attempted to clean up the scene. They left the trailer with the knife, along with Frega's glasses, keys, and some money they took from his pocket. Defendant threw the knife in a sewer drain and later threw Frega's glasses on the street and stepped on them. They then proceeded to buy "a couple bags of heroin" using Frega's money, and returned home to the trailer. A few days later, they disposed of garbage bags containing Frega's clothes, along with portions of the carpet and a towel used in the clean- up. Later that same night, they tied Frega's body to a cinder block and threw it into the Passaic River.

In view of the overwhelming evidence against defendant, it is unlikely he would have been convicted of a lesser-included offense or partially exonerated at trial. If convicted, he faced a maximum sentence of life plus sixteen and one-half years. In view of those considerations, we agree with the PCR judge that defendant has failed to show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Defendant has failed to show a reasonable likelihood of success under the Strickland-Fritz test. The PCR judge did not abuse his discretion by denying defendant a hearing on his PCR petition.

Affirmed.