STATE OF NEW JERSEY v. ANTHONY ALVES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5679-07T45679-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY ALVES,

Defendant-Appellant.

__________________________________

 

Submitted January 21, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1273.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Alves appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

I.

The underlying facts are briefly stated. In April 2003, the Department of Corrections transferred Alves to Kentock House, a residential halfway house in Newark, to complete his sentence from a prior conviction. On July 26, 2003, Alves left Kentock House without permission. On July 28, 2003, he stole a motor vehicle. The owner reported the theft to the police, who broadcast a description of the vehicle. The police spotted the vehicle but Alves refused to stop when signaled to do so. Instead, he drove over the curb and through a bushy area onto Route 1. He was pursued by the police until he exited Route 1 at Hazelwood Avenue in Rahway, where he crashed into a tree. He was arrested and eventually indicted for third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3 (count one); third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count two); and second-degree eluding, contrary to N.J.S.A. 2C:29-2(b) (count three).

On December 22, 2003, Alves accepted a plea offer under which he pled guilty to the second-degree eluding charge. In return, the State agreed to recommend a sentence of twelve years imprisonment, with a five-year period of parole ineligibility. The sentence was premised on an extended term pursuant to N.J.S.A. 2C:44-3(f). The State also agreed to dismiss the remaining charges. At the time of the plea, Alves agreed that he was driving a stolen vehicle and that "[d]ue to the rate of speed and the weaving and the chasing that [he] knew [he was] putting people at risk because [he] was taking some chances with the chase."

Alves was sentenced in accordance with the plea offer on April 12, 2004, with the sentence to be concurrent with the sentence he was serving at the time. He appealed the sentence as excessive and argued that the sentencing judge erred by failing to hold a hearing on the appropriateness of an extended term. The appeal was considered during a sentencing calendar on May 4, 2005. We affirmed in an order entered on May 5, 2005. Alves did not seek certification of our opinion by the Supreme Court.

Alves filed his PCR petition on March 19, 2007. The petition was amended on December 14, 2007. In his amended petition, he raised the following points:

POINT I: COUNSEL'S FAILURE TO ADEQUATELY CONSULT WITH PETITIONER IN PREPARATION FOR HIS CASE AND FAILURE TO PROPERLY INVESTIGATE WITNESSES SO AS TO ENABLE PETITIONER TO SET FORTH A MEANINGFUL DEFENSE, DEPRIVED PETITIONER OF EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II: COUNSEL'S NEGOTIATION OF AN EXTENDED TERM PLEA AND FAILURE TO ARGUE THAT AN EXTENDED SENTENCE WOULD VIOLATE THE DICTATES OF STATE V. NATALE AND BLAKELY V. WASHINGTON. U.S. Const. amend. VI, XIV; N.J. Const. art. I, 8, 9, 10, 11 DEPRIVED THE PETITIONER OF EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL ATTORNEY FAILED TO PRESENT APPLICABLE MITIGATING FACTORS SUPPORTING SENTENCES LOWER THAN THE EXTENDED TERM RECOMMENDED IN THE PLEA AGREEMENT. U.S. Const. amend. VI, XIV; N.J. Const. art. I, 10.

Judge James F. Mulvihill heard the PCR application on February 8, 2008. Without holding an evidentiary hearing, he denied the petition. Judge Mulvihill stated his reasons as follows:

To establish ineffective assistance of counsel, defense must demonstrate under the Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),] test that (1), "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." And it's best to examine each of the defendant's arguments to determine if he established ineffective assistance of counsel.

As to the failure to adequately consult during the plea proceedings, defendant was asked a series of questions by the Court to ensure that he had received satisfactory representation through his attorney, Robert White, who was then an assistant deputy public defender. Defendant answered in the affirmative when asked if Mr. White went over the plea form with him in detail, if he answered all of his questions, and was he satisfied with his services, and he did that under oath.

Two, counsel's negotiation of an extended term. Defendant has thirteen adult arrests, resulting in ten convictions. Due to the extensive record of defendant, it is completely reasonable to assume that the Court based its sentencing of the defendant on his prior record. There was no [State v. Natale, 184 N.J. 458 (2005),] violation. No other aggravating factors were found except risk and need to deter. And trial counsel managed to negotiate a lower sentence than previously offered by the prosecutor, and a very reasonable offer in view of the circumstances of the case and his prior record.

Point three, that defense counsel failed to present applicable mitigating factors supporting sentences lower than the extended term. And Mr. White did not argue for any mitigating factors. He asked the Court to sentence defendant in accordance with the plea agreement, and the Court believes that Mr. White would have done that because he got a very good deal for his client. And I don't know how Mr. White could have put forth any mitigating factors. I guess you said he should have put forth mitigating factors. Certain ones, right.

[DEFENSE COUNSEL]: One, two and eight.

THE COURT: One, two and eight.

[DEFENSE COUNSEL]: Yes, your Honor.

. . . .

Mitigating factors. [T]he defendant's conduct neither caused nor threatened serious harm. That's totally ridiculous. I mean someone who is on Route 1 eluding the police, weaving in and out of traffic and then crashes his vehicle, he's very likely to kill somebody or paralyze somebody. So, that's not even in the realm of possibility.

Number two, he didn't contemplate his conduct would cause or threaten serious harm? Anybody who drives a car like that must know that it's a probability he's going to kill somebody. That's ridiculous. And number eight, his conduct was a result of circumstances unlikely to reoccur? He had a prior eluding I believe, didn't he?

[ASSISTANT PROSECUTOR]: Yes, I believe.

THE COURT: He had a prior eluding. It's likely he's going to do this again. And once he gets out of prison, he's going to do this again. That's what's likely. How could Mr. White argue something like that? So, for all those reasons, the petition for conviction relief is denied.

The appropriate order was entered on the same day. This appeal followed.

II.

On appeal, Alves raises the following issues:

POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING PREPARATION OF THE DEFENSE CASE.

A. Counsel failed to interview and investigate favorable witnesses.

B. Counsel failed to investigate or develop a defense based on defendant's mental condition.

C. Counsel failed to consult with defendant in a meaningful manner.

D. Counsel's strategy was deficient and amounted to ineffective assistance of counsel.

POINT II: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA BARGAINING STAGE.

A. Counsel was ineffective in negotiating an unfavorable plea.

B. Counsel was ineffective while negotiating the plea since he did not argue that imposition of an extended sentence was unconstitutional.

POINT III: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING SENTENCING.

POINT IV: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE PLEA UNFAIR.

POINT V: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . ;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that 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. Further, because prejudice is not presumed, State v. Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 55-56; see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

B.

Having reviewed Alves' arguments on appeal in light of the record before us, we find them to be without merit and not warranting an extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons set forth in Judge Mulvihill's comprehensive oral decision. We add only the following.

Although Alves contends that his trial counsel was ineffective because he "failed to interview and investigate favorable witnesses," he does not identify any such witnesses, nor does he outline the nature of their potentially favorable testimony. Although he contends that trial counsel should have developed a diminished capacity defense, Alves fails to present facts upon which such a defense might be premised, other than his lengthy criminal record. His citation of State v. Savage, 120 N.J. 594, 620-21 (1990) is totally inapposite because the defendant in that case had a history of psychiatric hospitalization.

Alves also complains of a general failure by trial counsel to consult with him and to develop a favorable strategy, but does not suggest what would have resulted from more intensive consultation or the nature of the more favorable strategy. His brief is replete with vague theories, but no factual basis for any of them. The facts of the case were quite simple and, as far as we can determine from the record, uncontested. Alves was supposed to be in a halfway house at the time he was arrested in a stolen car that had crashed into a tree following a police chase on Route 1. At the plea hearing, he testified that he was satisfied with trial counsel, and acknowledged that counsel had responded to all of his questions.

With respect to the sentence, Judge Mulvihill's oral decision quite aptly addressed the patent inapplicability of the three mitigating factors suggested by PCR counsel at the oral argument. While trial counsel might have suggested mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("substantial grounds tending to excuse or justify the defendant's conduct"), with respect to Alves' purported desire to visit his ailing mother, we see no basis to believe that the sentence would have been different given the crime to which he pled guilty and the circumstances of the offense.

As Alves appears to concede, he is not entitled to re-sentencing under State v. Natale, 184 N.J. 458 (2005), and State v. Pierce, 188 N.J. 155 (2006), because his case did not fall within the pipeline retroactivity recognized by Natale and implicitly by Pierce. In any event, the bargained for extended term under N.J.S.A. 2C:44-3(f) was based upon Alves' possession of a vehicle that he admitted was stolen at the plea hearing. See Natale, supra, 184 N.J. at 495 (citation omitted) (holding that "[i]n a plea setting, the maximum sentence authorized for Sixth Amendment purposes depends on the defendant's admissions at his plea hearing and his prior criminal convictions, if any.").

Finally, because Alves failed to present a prima facie case of ineffective assistance of counsel, we find no error in Judge Mulvihill's decision to deny the petition without holding an evidentiary hearing. Preciose, supra, 129 N.J. at 462 ("[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief.").

 
Affirmed.

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A-5679-07T4

March 4, 2010