STATE OF NEW JERSEY v. JOHN ALIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1887-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

JOHN ALIVERA,

Defendant-Appellant/

Cross-Respondent.

_________________________________

SubmittedMay 31, 2011 Decided June 7, 2011

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Camden County, Law Division, Indictment No. 03-06-2076.

Yvonne Smith Segars, Public Defender, attorney for appellant/cross-respondent (Gilbert G. Miller, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent/cross-appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief.)

PER CURIAM

Defendant John Alivera appeals from the trial court's June 12, 2009 order that denied his petition for post-conviction relief ("PCR") alleging ineffective assistance of counsel. The State cross-appeals from a provision of that same order, which reduced defendant's period of parole ineligibility by approximately thirty-six days. For the reasons that follow, we affirm the order, with a slight modification respecting defendant's sentence.

Facing a capital murder prosecution for dousing his former girlfriend's mother with gasoline and burning her to death, on July 16, 2003, defendant entered a negotiated plea to first-degree murder, N.J.S.A. 2C:11-3a(1) and (2). Under the terms of the plea agreement, the State agreed to dismiss the numerous other counts in the indictment. In exchange for defendant's guilty plea to non-capital murder, the State agreed to recommend that he be sentenced to forty-three years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA").

As noted, the victim was the mother of defendant's former girlfriend. The girlfriend had broken off their relationship. Angered about the break-up, defendant went to the mother's residence, placed her at gunpoint, bound her with duct tape, doused her with gasoline, lit a match, and departed in a waiting cab while the mother burned to death. Defendant was eventually tracked down in California and gave a confession on videotape.

During the course of the plea colloquy, the trial judge meticulously verified that defendant was entering the plea voluntarily, that he understood the consequences of his plea, and that he had discussed the plea with his trial attorney. Although defendant had a history of treatment with psychotropic drugs, he assured the court under oath that he had not taken any medication that would compromise his ability to understand the proceedings that day.

The plea form and the plea colloquy made clear that defendant would be exposed at sentencing to a maximum term of life in prison, that the State would recommend a sentence of forty-three years, and that the sentence imposed would be subject to a parole disqualifier under NERA. The prosecutor represented at the plea hearing that, applying eighty-five percent to the recommended sentence of forty-three years, the corresponding parole ineligibility period would be "exactly 36.45 years." The trial judge adopted the prosecutor's calculation, reiterating to defendant that a forty-three-year sentence would produce a 36.45-year period before defendant could be eligible for parole. In actuality, the prosecutor's calculation was incorrect, as eighty-five percent of forty-three years is 36.55years, not 36.45years. This minor computation error, amounting to a tenth of a year (or about 36 days), went unnoticed at the time.

Defendant was sentenced on August 29, 2003. Defendant's trial attorney urged the court to consider, as a mitigating factor, defendant's long-standing psychiatric problems dating back to the age of four when he was first admitted to a psychiatric hospital. The prosecutor, meanwhile, urged that the court impose a forty-three-year custodial term because of the severity of the offense and the horrific manner in which it was carried out.

Consistent with the plea agreement, the trial judge imposed a forty-three-year custodial term, subject to NERA. The judge provided the following insightful comments explaining why that lengthy sentence was warranted:

So, not only did you [defendant] commit a horrendous crime, but in doing so you took the life of someone who was obviously very special. And you did set a woman on fire. You bound her, [and] you doused her with gasoline. She knew exactly the horror and the pain and the torture that would soon result. And unfortunately, it did.

You had ample opportunity in that time frame to shrink back in horror from what your plan was. You could have retreated from it. You didn't have to light that match after you doused her with gasoline. You could have untied her, loosened those handcuffs and left.

Instead what did you do? You flicked a lit match or cigarette on her, set her afire and stepped outside to the waiting cab and left as she burned to death.

No adjective that I could possibly think of could ever accurately describe the pathological and demented thing that you did. There are no words that could describe it.

And for that reason, I certainly agree with [the prosecutor] that the nature and circumstances of the offense and your role in it made it an especially heinous, cruel and depraved act.

I think it goes without saying [that] any murder by its nature is heinous because it involves the taking of an innocent life. But, in this case that you hand-cuffed her, put duct tape over her mouth and poured an accelerant on her, set the fire and walked out deliberately leaving your identification at the scene so that your ex-girlfriend, her daughter, would know exactly who had killed and exactly who had tortured her mother, is certainly especially heinous, cruel and depraved.

The corresponding judgment of conviction, dated September 2, 2003, reflected the forty-three-year term imposed by the court, as well as the eighty-five percent parole ineligibility period. The judgment did not mention the number of years that corresponded to the eighty-five percent parole bar.

Defendant filed a direct appeal. However, his appellate attorney advised him in a letter that he did not have a likelihood of success on the existing record, and that a preferable course of action was to instead file a PCR application regarding his claims of ineffective assistance. The attorney's letter did point out to defendant that he could try arguing that he was not sufficiently advised at sentencing of the NERA parole supervision consequences of his conviction, but that, if he did so, the State could repudiate the plea agreement and reinstate the indictment for capital murder. Defendant followed counsel's advice and withdrew his appeal.

Defendant subsequently filed this PCR, contending that both his trial and appellate counsel were ineffective. He claimed that his trial attorney should have had him evaluated by a mental health expert, possibly to support a defense of insanity or diminished mental capacity. He also claimed that his trial attorney had improperly "coached" him about what to say at the plea hearing. He further argued that his appellate counsel improperly pressured him to withdraw his direct appeal. Additionally, he raised various other criticisms of his former counsel.

The PCR judge, Judge Holden,1rejected defendant's application in a bench ruling and a corresponding order dated June 12, 2009. From his review of the plea record, Judge Holden found that trial counsel was well aware of defendant's psychiatric background, and evidently had made an informed decision that there was no basis for a defense of insanity or diminished capacity. The judge also found that defendant had not submitted any legally competent evidence that would have supported such a defense. The judge found the same lack of substantiation as to defendant's allegation that his trial attorney had improperly influenced him on what to say at the plea hearing. The judge similarly rejected defendant's claim that his appellate counsel was ineffective.

Judge Holden did agree with defendant on one point: his reliance upon the miscalculated parole ineligibility period, a figure which had been repeatedly discussed on the record at the plea hearing. The judge modified the judgment of conviction accordingly, conforming the parole ineligibility period to the "36.45" years that was represented by the prosecutor and repeated by the trial judge when the plea was taken.

Defendant now raises the following points on appeal:

POINT I

DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS.

POINT IV

THE BASE TERM OF DEFENDANT'S SENTENCE MUST BE MODIFIED.

On that latter point, defendant argues that the forty-three-year custodial term should be reduced to forty-two years and 322 days, so as to correspond to the now-revised "36.45 year" period of parole ineligibility. The State, meanwhile, has cross-appealed the PCR judge's modification of the judgment, arguing that the 36.45 years without parole should be corrected to 36.55 years, and the forty-three-year custodial term kept intact.

Having reviewed the first three points raised by defendant in his brief, we conclude that they all lack sufficient merit to warrant discussion in this written opinion. R.2:11-3(e)(1)(E). We detect absolutely no ineffective assistance of counsel by either defendant's trial attorney, nor his attorney on direct appeal, under the well-settled standards of ineffectiveness set forth in Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984), and State v. Fritz, 105 N.J. 42, 54 (1987). Only a few comments are in order.

Defendant's assertion that he might have been able to mount a successful claim of self-defense or diminished mental capacity is speculative and unsupported by any expert proof. Such "bald assertions" cannot sustain a PCR application. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We also concur with the PCR judge that defendant's contention that his trial attorney improperly "coached" him into accepting the negotiated plea is unpersuasive and is belied by the plea colloquy. If anything, trial counsel's skillful negotiations spared defendant exposure to even more serious, i.e., capital consequences, perhaps even what used to be death row. See State v. Castagna, 187 N.J. 293, 314 (2006) (requiring the court, in examining claims of ineffectiveness, to consider "the totality of counsel's performance," rather than isolated claims of deficiency). Additionally, the letter from defendant's appellate counsel, frankly explaining the dim prospects for success on direct appeal, clearly shows the competent nature of his representation.

Because defendant did not present a prima facie case entitling him to PCR, the trial court did not err in dismissing the petition without conducting an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

That said, we do find it appropriate, as requested by defendant, to order that the judgment of conviction be further modified to revise the custodial term to forty-two years and 322 days. We reject the State's alternative solution to increase the parole ineligibility period to 36.55 years, as that was not the figure that was presented to defendant when he entered his plea on July 16, 2003. The de minimis adjustment that we have ordered comports with the eighty-five percent formula mandated by NERA. It also fully implements Judge Holden's decision, as to which we find no abuse of discretion.

Affirmed. The matter is remanded solely for the limited purpose of modifying the judgment of conviction consistent with this opinion.

1 Judge Holden was not the trial judge.