STATE OF NEW JERSEY v. ANGEL G. ROMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2245-07T42245-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL G. ROMAN,

Defendant-Appellant.

___________________________________________________

 

Submitted April 20, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-03-751.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Angel G. Roman appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The single argument raised on appeal is:

POINT ONE

THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST[-]CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON THE DEFENDANT'S COUNSEL'S IMPROPER COERCION OF THE DEFENDANT TO ACCEPT THE STATE'S PLEA OFFER.

We have considered this argument in light of the record and applicable legal standards. We affirm.

Defendant was indicted along with five co-defendants for two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree illegal possession of a handgun, N.J.S.A. 2C:39-5(b); fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f); and fourth-degree possession of a police radio while in the course of committing a crime, N.J.S.A. 2C:33-22. He entered pleas of guilty to both robbery charges in return for the State's agreement to dismiss the remaining counts of the indictment, and recommendation of a maximum sentence of twelve years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Prior to sentencing, defendant apparently sent a letter to the judge indicating that he wished to retract his plea. On the sentence date, defendant claimed his attorney never furnished him with discovery. Despite admitting under oath at the time he entered his guilty plea that he forced his way into the victims' home with three of his co-defendants, that one of them was armed with a handgun, and that they left with some of the victims' property, defendant told the judge prior to sentencing that "[t]here was no violence. I didn't go inside the house, I was outside the whole time, sat [sic] in the car." The judge denied defendant's motion to retract his guilty plea, and sentenced him in accordance with the plea agreement.

Defendant's appeal was limited to his sentence. We affirmed the sentence, modified the period of parole supervision imposed, and remanded the matter for the entry of a corrected judgment of conviction. State v. Roman, A-5603-04 (App. Div. February 7, 2006).

On February 2, 2006, defendant filed a pro se PCR petition alleging that trial counsel provided ineffective assistance, specifically by pressuring him "into accepting the plea to 12 years with the 85% . . . ." Defendant's appointed PCR counsel filed a supplementary brief alleging that trial counsel failed to "adequately explain the plea offer to [him]." She attached a December 2005 letter sent by defendant to the Public Defender's Office in which defendant claimed that trial counsel spoke to him on only one occasion before he entered his plea, that trial counsel "put the[] [plea forms] in front of [him] and told [him] [he] had to sign them," and that he did not comprehend that he "had taken a plea bargain" until he "was back on the cell block explaining to some of the people there what happened . . . in court . . . ." In his supplemental pro se brief, defendant reiterated the claim of trial counsel's ineffective assistance regarding the plea bargain.

After considering oral argument, the PCR judge, who was also the trial judge, noted that he had heard all the pre-trial motions in the case, as well as the co-defendants' cases, and that everyone involved alleged defendant "was the point man on the project." He noted further that with the exception of co-defendant James Hiciano, who testified as a State's witness at trial against two of defendant's co-defendants, defendant received "less time." The judge concluded that defense counsel "did a very good job for [defendant]," and that had he gone to trial, given the strength of the State's case, defendant "would be found guilty of all the charges . . . ." He denied the petition and this appeal ensued.

Defendant contends that he demonstrated a prima facie case of trial counsel's ineffective assistance at the time of his guilty plea, and, therefore, the PCR judge should have granted him an evidentiary hearing. We disagree.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "'must show that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant must show by "a reasonable probability" that the deficient performance affected the outcome of the trial. Fritz, supra, 105 N.J. at 58. "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 pled guilty and would have insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 863 (1996)).

While a "claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2010); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [defendant] 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.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). "Once a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different. . . .'" Rountree, supra, 388 N.J. Super. at 206 (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)).

Applying these standards to the facts presented, it is clear that defendant failed to demonstrate a prima facie case of ineffective assistance of counsel. Regarding any claim that defendant was not provided with sufficient information by trial counsel, we note that the transcript of the plea hearing reveals that after defendant indicated some reluctance in accepting the plea offer, the judge recessed the proceedings and did not resume again until after lunch. The judge inquired at that time whether defense counsel had answered all of defendant's questions, and defendant responded in the affirmative. Moreover, defense counsel represented to the judge that he had in fact reviewed the entire discovery with defendant in the jail, with the assistance of a private investigator who was fluent in Spanish. We see no reason why an evidentiary hearing was necessary to resolve this aspect of defendant's claim.

As to defendant's claim that his attorney failed to adequately explain the consequences of the plea, or failed to protect him from the prosecutor's or the judge's alleged coercive conduct, or that defense counsel himself coerced defendant into pleading guilty, we reject the arguments because the transcript belies the claims. Defendant acknowledged that he understood his rights, that he was voluntarily waiving those rights, that he executed the plea forms, that no one was forcing him to plead guilty, and that he understood the terms of the plea bargain. As we have already noted, as part of his factual basis, defendant admitted under oath that he forced his way into the victims' home, and robbed them with his co-defendants, one of whom was armed with a gun. The factual basis belies any claim defendant has since raised that he never entered the residence, but remained in the car outside, not knowing what his cohorts intended to do.

In short, defendant failed to demonstrate that trial counsel's performance was deficient or that he was prejudiced as a result. No evidentiary hearing was required, and the judge properly denied defendant's PCR petition.

 
Affirmed.

The trial judge had sentenced defendant to two consecutive five-year periods of parole supervision. Our order remanded the matter for entry of an amended judgment of conviction limiting the period of defendant's parole supervision to five years.

Since defendant filed his PCR petition before our order was filed, he also claimed that the ten-year period of parole supervision was illegal.

We recounted the testimony adduced at the trial of defendant's co-defendants in our opinion, State v. Taveras, A-5337-05 (App. Div. June 19, 2009).

(continued)

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A-2245-07T4

June 25, 2010