STATE OF NEW JERSEY v. ALBERT CORTES
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3886-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERT CORTES,
Defendant-Appellant.
_____________________________________________________
Submitted June 1, 2009 - Decided May 12, 2010
Before Judges Carchman and R. B. Coleman.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Accusation No. 02-11-2320.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Andrew P. Slowinski,
Designated Counsel, on the brief).
Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Mary R. Juliano,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
R. B. COLEMAN, J.A.D.
Defendant Albert Cortes appeals from a denial of his
petition for post-conviction relief (PCR). Defendant's
principal argument is that, notwithstanding the agreement to
plead guilty to the charge of first-degree aggravated
manslaughter in exchange for the State's recommendation of a
sentence of ten years in prison, he received ineffective
assistance of counsel because his attorney did not argue for
certain mitigating factors and did not seek a term of
incarceration appropriate to a crime one degree lower than that
to which he pled guilty. The PCR judge rejected defendant's
arguments, making the following observations:
[T]his is something that simply could
have been raised on an appeal and it wasn't.
And to allege incompetence of counsel
on the basis to make this a PCR application
is, quite frankly, in this court's view
disingenuous.
The argument is basically that the
judge should have not followed the plea
agreement[,] the bargain[ed] for plea
agreement[,] where the defendant was
avoiding a maximum term of 20 years for
aggravated manslaughter. A sentence of 30
years without parole is a minimum for the
murder. That the judge should have now
downgraded that particular sentence to a
degree lower.
And under 2C:44-1f(2) the judge could
do that if the judge found that the
mitigating outweigh the aggravating
substantially to the point where justice
demands a lower sentence.
And under the facts of this particular
case, that could have never happened. It
really wasn't there.
The judge then reviewed the mitigating factors urged by
defendant, and concluded:
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I wouldn't have found any of those
mitigating factors to apply. And, quite
frankly, even if you did find some of those
mitigating factors to apply, they certainly
in the facts of this particular case
wouldn't amount to a situation where you
could say that those mitigating factors
substantially outweigh the aggravating
factors.
For substantially the reasons expressed by the PCR judge, we
affirm.
The facts of the case are not in dispute. On February 5,
2002, defendant was in Asbury Park. On that day, at around 4:30
p.m., Damon Holmes bought drugs from defendant but returned
about a half an hour later demanding that defendant refund his
money because "the drugs were no good." Defendant said he would
refund the money if Mr. Holmes returned the drugs. Because Mr.
Holmes did not have the drugs, he grabbed a stick and tried to
hit defendant over the head. The stick Mr. Holmes used was
described as "a branch that had been trimmed off of a tree
. . . about a foot to a foot and half long." "At its base
. . . [it was] about two to two and half inches . . . in
diameter . . . [a]nd it then branche[d] out into . . . small
branches of no more than . . . half an inch to an inch at most
in diameter."
Defendant blocked the blow with his arm, suffering a
laceration on the hand as a result, and he stabbed Mr. Holmes
A-3886-07T4
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once with a six-inch folding knife, killing him. According to
defendant's statement, he walked away, hid in the next block,
waited for a cab to get to the train station, and went home to
Newark. Eight days later, the police came to his house and
arrested him for murder.
On November 21, 2002, defendant was charged under Monmouth
County Accusation No. 02-11-2320, with the following six counts:
(1) first-degree murder, contrary to N.J.S.A. 2C:11-3 (count
one); (2) first-degree aggravated manslaughter, contrary to
N.J.S.A. 2C:11-4 (count two); (3) second-degree aggravated
assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count three); (4)
third-degree aggravated assault with a deadly weapon, contrary
to N.J.S.A. 2C:12-1(b)(2) (count four); (5) third-degree
possession of a weapon for an unlawful purpose, contrary to
N.J.S.A. 2C:39-4(d) (count five); and, (6) fourth-degree
unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d)
(count six). On that same date, defendant signed a waiver of
indictment and entered into a plea agreement, pursuant to which
he pled guilty to count two (first-degree aggravated
manslaughter) and count six (fourth-degree unlawful possession
of a weapon). In exchange for the plea of guilty, the State
agreed to recommend the dismissal of the remaining charges and
to recommend an aggregate ten-year sentence with an eighty-five
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percent parole ineligibility under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.
At the sentencing hearing on January 31, 2003, the judge
followed the terms of the plea agreement and entered a judgment
of conviction sentencing defendant to a prison term of ten years
on count two, of which defendant must serve eighty-five percent
before becoming eligible for parole, and a term of twelve months
on count six, to be served concurrent to the sentence on count
two.
Defendant did not appeal the judgment of conviction;
however, four years later, on February 6, 2007, he filed a pro
se PCR motion seeking the assignment of counsel, discovery and
transcripts. In the certification in support of his petition,
defendant stated that he "need[ed] the discovery to show he was
provoked by the victim, and he wishe[d] to present evidence
. . . that he could be sentenced to one degree lower on the
charge without changing the charge pled to." Defendant
specifically asserted that "[p]etitioner does not wish to vacate
the plea for aggravated manslaughter . . . he only wishes to
have an evidentiary hearing held in order for the court to
determine the facts relevant in his petition and Memorandum of
Law which will be submitted[.]"
A-3886-07T4
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The PCR judge denied the PCR petition, concluding that the
requested relief is procedurally barred because the issues
presented could have been raised on direct appeal, and further
finding that the additional mitigating factors which defendant
contends should have been considered by the sentencing judge,
would not have warranted a sentence for a crime one grade lower
than the first-degree crime to which defendant pled guilty.
On appeal from the order denying his PCR petition,
defendant makes the following arguments in his brief:
POINT I: DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL ON HIS PETITION FOR
POST-CONVICTION RELIEF. (Not Raised Below)
DEFENDANT'S PETITION FOR POST-
POINT II:
CONVICTION RELIEF SHOULD HAVE BEEN GRANTED
ON THE GROUNDS THAT DEFENSE COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE IN VIOLATION OF
DEFENDANT'S RIGHTS UNDER THE SIX AMENDMENT
TO THE U.S. CONSTITUTION AND ARTICLE I,
PARA. 10 OF THE NEW JERSEY CONSTITUTION.
A. Defendant was denied
effective assistance of
counsel during trial
preparation and plea
negotiations.
B. Defendant was denied
effective assistance of
counsel at sentencing.
POINT III: THE PCR COURT ERRED BY RESOLVING
DISPUTED ISSUES OF FACT AGAINST DEFENDANT
AND DENYING DEFENDANT'S REQUEST FOR A
HEARING ON HIS PCR PETITION.
A-3886-07T4
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POINT IV: DEFENDANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WAS VIOLATED AS A
RESULT OF THE CUMULATIVE ERRORS AND
OMISSIONS OF HIS TRIAL COUNSEL AND PCR
COUNSEL IN FAILING TO PREPARE DEFENDANT'S
CASE. (Not Raised Below)
POINT V: DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF IS NOT PROCEDURALLY BARRED
BY RULE 3:22-
4 OR RULE 3:22-5.
We see no need to discuss each of defendant's arguments
because they lack sufficient merit to warrant discussion in a
R. 2:11-3(e)(2). As we have already noted, we
written opinion.
agree with the PCR judge that the mitigating factors now raised
by defendant would not have prompted a different result, and
defendant could have appealed the sentencing judge's exercise of
discretion following the plea agreement. We nevertheless add
these few comments.
First, it is well established that "[f]or a defendant to
establish a case of ineffective assistance of counsel, the
defendant must show that '[defense] counsel's performance was
deficient,' and that 'there exists a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" State v. Nunez-Valdez,
200 N.J. 129, 138-39 (2009) (quoting State v. Preciose,
129 N.J.
451, 463-64 (1992)). See also Strickland v. Washington,
466 U.S. 668, 694,
104 S. Ct. 2052, 2068,
80 L. Ed. 2d 674, 698
(1984). In State v. Fritz,
105 N.J. 42, 58 (1987), our Supreme
A-3886-07T4
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Court approved the two-part Strickland test for evaluating
ineffective assistance claims under our State constitution.
"[T]here is 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.'"
State v. Echols,
199 N.J. 344, 358 (2007) (quoting Strickland,
supra,
466 U.S. at 689,
104 S. Ct. at 2065,
80 L. Ed. 2d at
694). Moreover, a "challenged error must be so serious as to
undermine the court's confidence in defendant's conviction."
at 359. The petitioner bears the burden of proof to
Id.
establish the grounds for PCR by the preponderance of the
credible evidence, id. at 357, and the PCR judge appropriately
concluded that defendant did not meet his burden of proof.
State v. Webster,
187 N.J. 254, 257 (2006) recognized, as
defendant states, that an attorney has a duty "to communicate
with the client, [to] investigate the claims urged by the client
. . . [to] determine whether there are additional claims that
should be brought forward . . . [and to] advance all of the
legitimate arguments that the record will support." See also
State v. Rue,
175 N.J. 1, 19 (2002). However, these cases do
not lead us to conclude that a remand is warranted under the
facts of this case. A review of the transcript of oral
arguments on the PCR petition reveals that PCR counsel actually
advanced defendant's argument that the facts would have
A-3886-07T4
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supported additional mitigating factors, such as provocation,
self-defense and diminished capacity due to defendant's
impulsive behavior disorder; but the PCR judge's response --
with which we are in agreement -- was that "the test . . . is I
have to be satisfied that the mitigating factors outweigh the
aggravating and there would be a substantial injustice. And you
can't say that in this case."
"[T]he standard governing downgrading is high." State v.
Megargel,
143 N.J. 484, 500 (1996); State v. Read,
397 N.J.
Super. 598, 612 (App. Div.), certif. denied,
196 N.J. 85 (2008).
[T]he standard for downgrading an offense
for the purpose of sentencing under section
44-1f(2) [N.J.S.A. 2C:44-1(f)(2)] is two-
pronged: first, the court must be "clearly
convinced" that the mitigating factors
"substantially" outweigh the aggravating
ones, and second, the court must find that
the "interest of justice" demands that the
sentence be downgraded. The reasons
justifying a downgrade must be "compelling,"
and something in addition to and separate
from, the mitigating factors that
substantially outweigh the aggravating
factors.
[Megargel, supra,
143 N.J. at 504-05.]
The applicable statutory provision, N.J.S.A. 2C:44-1(f)(2),
more fully states:
In cases of convictions for crimes of the
first or second degree where the court is
clearly convinced that the mitigating
factors substantially outweigh the
aggravating factors and where the interest
A-3886-07T4
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of justice demands, the court may sentence
the defendant to a term appropriate to a
crime of one degree lower than that of the
crime for which he was convicted. If the
court does impose sentence pursuant to this
paragraph, or if the court imposes a
noncustodial or probationary sentence upon
conviction for a crime of the first or
second degree, such sentence shall not
become final for 10 days in order to permit
the appeal of such sentence by the
prosecution.
[N.J.S.A. 2C:44-1(f)(2).]
Notably, the relief permitted by that provision is so
extraordinary that the effective date of the sentence is
postponed to permit an appeal by the prosecution.
As the State points out, defendant does not identify any
particularized information that PCR counsel failed to produce
that would have brought about a different result on his PCR
petition. Defendant does not attach any affidavits or
certifications supporting the contention that PCR counsel failed
to investigate his position. Rather, defendant merely argues
that "[t]here is no indication from the record" or that "it does
not even appear" that PCR counsel investigated the matter. Bare
assertions without any factual support are not sufficient to
establish ineffective assistance of PCR counsel. See State v.
Cummings,
321 N.J. Super. 154, 170-71 (App. Div.), certif.
denied,
162 N.J. 199 (1999); see also State v. Slater, 198 N.J.
A-3886-07T4
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145, 158 (2009) (noting that "a bare assertion of innocence is
insufficient to justify withdrawal of a plea.").
On his pro se PCR motion, defendant essentially
acknowledges he received the benefit of the bargain when he
wish to vacate the plea for
states, "[p]etitioner does not
aggravated manslaughter pursuant to N.J.S.A. 2C:11-4.a[.]" He,
nevertheless, urges that trial counsel was ineffective, and he
should have been sentenced one degree lower than the first
degree crime to which he pled guilty. Our courts have
recognized that "a key component of plea bargaining 'is the
'mutuality of advantage' it affords to both defendant and the
State v. Means,
191 N.J. 610, 618 (2007) (quoting
State.'"
State v. Taylor,
80 N.J. 353, 361 (1979)). Thus, "plea
bargaining 'enables a defendant to reduce his penal exposure and
avoid the stress of trial while assuring the State that the
wrongdoer will be punished and that scarce and vital judicial
and prosecutorial resources will be conserved through a speedy
Ibid. (quoting Taylor, supra,
resolution of the controversy.'"
80 N.J. at 361). The PCR judge appropriately determined that
there is no compelling reason to disturb the mutuality of
advantage in this case.
It is most significant that defendant took the benefit of
the plea agreement and did not appeal the judge's exercise of
A-3886-07T4
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discretion respecting the aggravating and mitigating factors and
did not mount a timely challenge to the judge's imposition of
the sentence in accordance with the plea agreement. As the PCR
judge accurately observed, "[t]here is just nothing in this case
that would prevent this matter [sic] from simply appealing his
sentence and saying that the judge didn't cite mitigating
factors. He didn't -- these mitigating factors didn't apply."
Although the PCR judge concluded the mitigating factors now
advocated by defendant did not apply, he further stated that if
they applied, they would not have warranted a deviation from the
negotiated plea agreement. We agree.
In effect, defendant is seeking to set aside or to modify
the plea agreement. As the Court observed in State v. DiFrisco,
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.
[
137 N.J. 434, 457 (1994) (internal
citations and quotes omitted), cert. denied,
516 U.S. 1129,
116 S. Ct. 949,
133 L. Ed. 2d 873 (1996).]
Defendant did not meet that standard on his petition for PCR.
Defendant argues that the PCR judge should have granted him
an evidentiary hearing since "a hearing would have provided the
A-3886-07T4
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opportunity to remedy the lack of effort devoted to defendant's
case by his attorneys at any stage of prior proceedings." The
court "may grant an evidentiary hearing on a PCR petition if the
defendant has established a prima facie case of ineffective
State v. Ball,
381 N.J. Super. 545, 558
assistance of counsel."
(App. Div. 2005) (citing State v. Marshall,
148 N.J. 89, 157,
cert. denied,
522 U.S. 850,
118 S. Ct. 140,
139 L. Ed. 2d 88
(1997)). However, "'[i]f the court perceives that holding an
evidentiary hearing will not aid the court's analysis of whether
the defendant is entitled to post-conviction relief, or that the
defendant's allegations are too vague, conclusory, or
speculative to warrant an evidentiary hearing, then an
evidentiary hearing need not be granted.'" Id. at 558 (quoting
Marshall, supra,
148 N.J. at 158). In Cummings, we explained:
in 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. He must allege facts
sufficient to demonstrate counsel's alleged
substandard performance. Thus, when 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 upon the personal
knowledge of the affiant or the person
making the certification.
[Cummings, supra,
321 N.J. Super. at 170.]
A-3886-07T4
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Here, as discussed above, defendant did not make a prima
facie showing that he was denied effective assistance of trial
or PCR counsel. He does not "assert the facts that an
investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant
or the person making the certification." Ibid. Rather,
defendant makes "bald assertions" that both PCR and trial
counsel were deficient by not investigating or appealing the
case.
Finally1, defendant argues that the judge erred in holding
that PCR was procedurally barred under Rule 3:22-3, -4 and -5,
because "the petition is premised on a violation of defendant's
constitutional right to effective assistance of counsel[.]" Our
rules provide certain procedural bars for a PCR "[b]ecause post-
conviction relief is not a substitute for direct appeal and
because of the public policy 'to promote finality in judicial
Echols, supra,
199 N.J. at 357 (quoting State v.
proceedings.'"
McQuaid,
147 N.J. 464, 483 (1997)). Thus, under Rule 3:22-4, an
issue that defendant could have raised in a direct appeal, but
1
Because we do not conclude that the PCR court committed errors
in the individual rulings challenged by defendant, we do not
find a basis to conclude that the cumulative effect of such
rulings was erroneous and prejudicial. This argument is so
lacking in merit that it does not warrant further discussion.
R. 2:11-3(e)(2).
A-3886-07T4
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failed to do so, will be barred from consideration on a PCR
motion. As the Supreme Court has reminded us, "[a]lthough our
rules provide for certain exceptions to these general rules, we
have emphasized that it is important to adhere to our procedural
supra,
199 N.J. at 357 (quoting State v.
bars." Echols,
Goodwin,
173 N.J. 583, 594 (2002)).
We realize that, in spite of our view that the procedural
bar applies, we have expended considerable time and attention
addressing the arguments raised by defendant in his appellate
brief. All the issues he raised, apart from the claim of
ineffective assistance of PCR counsel, could have been disposed
of from the record on direct appeal. Whether the sentencing
judge erred in failing to consider appropriate mitigating
factors and whether those mitigating factors substantially
outweighed the aggravating factors were issues that could have
been raised on appeal. They were not. Hence, they are barred.
Affirmed.
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