STATE OF NEW JERSEY v. MANUEL COLON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2081-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MANUEL COLON,

Defendant-Appellant.

________________________________

June 20, 2011

Submitted: May 16, 2011 - Decided:

Before Judges Grall and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-00775.

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

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Manuel Colon appeals from the denial of his appli cation for post-conviction relief (PCR) following his plea of guilty to first-degree armed robbery, contrary to N.J.S.A. 2C:15-1, for which defendant was sentenced to ten years in prison subject to the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He urges that his attorney pressured him to accept the plea, advised him that he would be sentenced as a second-degree offender, failed to argue mitigating factors at sentencing, and failed to argue that he should be sentenced as a second-degree offender. Finding no merit in any of these contentions, we affirm.

Defendant pled guilty to first-degree armed robbery on Novem ber 7, 2005. The State agreed to dismiss the remaining charges and recommend a ten-year prison sentence, subject to NERA. The State also agreed to dismiss a companion indictment against defendant and his wife and agreed that any sentence related to his violation of probation would run concurrent to the ten-year sentence.

Defendant appeared for sentencing on January 27, 2006, before Judge Camille M. Kenny. At that time, he stated that he was not satisfied with his attorney and the way that he was rep resented. He advised the judge that he did not feel that he was getting the deal that was promised to him by his attorney. The judge asked if defendant wanted her to reject the plea agree ment. Defendant expressed that he wrote to the Ethics Committee about the representation he had, and the judge asked defendant if he wanted to file a motion to retract his plea. The judge also stated:

I'm looking at a guy with 27 arrests, 16 prior indictable convictions, who is caught basically red-handed in an armed robbery whose attorney manages to negotiate for him a sentence at the bottom of the range, the bottom of the range, the maximum is 20, and you I believe, and the Prosecutor will cor rect me if I'm wrong, but you, I believe, are extended[-]term eligible.

Defendant responded that his attorney said he would get him seven years or get him treated as a second-degree offender for purposes of sentencing and get the term lower. Defendant then said, "[I]t doesn t matter. I just want to get sentenced and get it over with." The judge stated that if defendant was not guilty she didn't want to sentence him. Defendant responded, "That's what I want - I'm going to get sentenced today because I'm guilty. I want to get this over with today." The judge asked if defendant was guilty, and he replied, "Yes, I'm guilty." He also stated, "Just do what you got to do. Just sentence me. It don't make no difference. . . . I just want to get this over with today."

Upon inquiry from the judge as to why he did not want to file a motion to retract his plea, defendant again responded that he just wanted to get sentenced that day. When the judge said that defendant could not have it both ways, he responded, "I just wanted to make sure that it's on some type of recording device that I had said in the court that I just wasn't happy with his representations. That's for my reasons for the future." He again stated that he was guilty, he wanted to be sentenced, and he wanted to go to prison.

Upon further inquiry from the judge, defendant again stated that his attorney told him "that he would see if he could get it treated as a second degree for purposes of sentencing." The judge then stated, "[I]n light of your record and the strength of the State's proofs, [your attorney] was unable to do anything more than get you to the bottom of the range and get the State to waive an extended term. Looks pretty darn good to me." The judge then offered defendant the opportunity to move to withdraw his plea, and defendant again responded that he just wanted to be sentenced. He agreed that he "copped out to a 10 with 85. I want to go to prison right away." The judge replied, "Okay." Defendant acknowledged that, when he pled guilty, he was told by the judge that his plea was ten years with eighty-five percent to be served without parole eligibility.

The judge then proceeded to sentence defendant in accor dance with the plea after finding aggravating factors 3, 6, and 9;1 she found no mitigating factors.2 The judge also imposed five years of parole supervision upon release. She then pro ceeded to sentence defendant on the parole violation. Defendant appealed his conviction and argued that the sentence imposed was excessive; we affirmed. State v. Colon, No. A-6456-05 (App. Div. June 27, 2007).

On October 14, 2008, defendant filed a pro se petition for PCR seeking to withdraw his guilty plea. He certified that his attorney failed to present him with the discovery in the case, told him he would have to plead guilty to first-degree robbery in order to secure a dismissal of the charges under the compan ion indictment, and said he would have to accept a plea for ten years with eighty-five percent parole ineligibility because there were no other options. Defendant also certified that his attorney advised him he knew the judge from previous court cases, which would enable him to get the case treated as a sec ond degree for sentencing purposes so defendant could receive a sentence of seven or eight years subject to NERA and that the worst-case scenario would be nine years with eighty-five percent parole ineligibility. Finally, he certified that his attorney failed to make the judge aware that he was in a drug-treatment program prior to his transfer to the Hudson County Jail, that he had provided his attorney with "mitigating paperwork that would provide positive light from clinical professionals," and that he asked his attorney on several occasions to make the judge "aware of these mitigating factors to no avail." PCR counsel subse quently filed a supporting brief arguing ineffective assistance of counsel during the plea negotiations and sentencing.

On April 9, 2009, Judge Kenny heard arguments on defen dant's petition and placed her decision on the record. She recited the proceedings at the sentencing and found that the transcript of the plea revealed that defendant said he was sat isfied with the services provided by his attorney, that he "had a sufficient amount of time to go over every one of the ques tions on the plea form[,] and that his attorney went over all the charges . . . in the indictments and conferred with him about the strengths and weaknesses of his case."

The judge noted that defendant was sentenced to the minimum term possible for first-degree armed robbery and found that the issues he raised were belied by the plea and sentencing tran scripts. She found that defendant's answers to the plea judge's "exhaustive questioning clearly reveals that he understood the nature of the agreement." There was never any suggestion of being sentenced as a second-degree offender during the plea colloquy. She also found, given defendant's extensive criminal background, that his counsel was effective in securing a plea bargain that limited his exposure to the minimum term possible. She found no need for an evidentiary hearing as defendant had failed to present a prima facie case in support of PCR.

The judge pointed out that defendant failed to take advan tage of her repeated offers to permit him to file a motion to retract his plea. She found the plea bargain to be substan tially in favor of defendant and concluded that he "failed to show that his counsel was deficient in any way." As such, he could not demonstrate that his counsel's performance had caused him any prejudice as he could not establish "that but for coun sel's errors [he] would not have pled guilty and would have insisted on going to trial." She also noted that there would be "no basis" to argue for sentencing in the second-degree range because defendant was extended-term eligible and there were no mitigating factors. Thus, she denied defendant's petition for PCR. This appeal followed.

Defendantraises thefollowing issuesfor ourconsideration:

POINT I - THE [PCR] COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR RELIEF BASED ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUN SEL, WHERE IT WAS SHOWN THAT HIS TRIAL COUN SEL MISTAKENLY ADVISED HIM THAT HE WOULD RECEIVE A DOWNGRADED SENTENCE AND PRESSURED HIM TO ACCEPT THE PLEA.

a. The PCR court improperly denied [defendant's] petition for [PCR] without conducting an evi dentiary hearing in this matter.

POINT II - TRIAL COUNSEL FAILED TO ARGUE APPROPRIATE MITIGATING FACTORS AND THAT [DE FENDANT'S] SENTENCE SHOULD BE "DOWNGRADED" AT SENTENCING.

In reviewing the disposition of a petition for PCR, we do not defer to the judge's legal conclusions, but we do give def erence to his or her factual findings that are "supported by adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

In Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee embodied in the Sixth Amendment of effective assistance of counsel for every criminal defendant. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, the defendant must demonstrate that the professional errors were so prejudicial as to deprive him of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

When a defendant seeks PCR on a claim of ineffective assis tance of counsel following a guilty plea, he or she must show deficient performance and "'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. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable profes sional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of coun sel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Jack, 144 N.J. 240, 248 (1996) (internal quotation marks omitted).

We have carefully considered the issues presented on appeal and are satisfied that defendant has failed to establish a prima facie case of ineffective assistance of counsel under the two- prong analysis of Strickland. As such, we conclude that defen dant's arguments "are without sufficient merit to warrant dis cussion in a written opinion." R. 2:11-3(e)(2). We affirm for the reasons expressed by Judge Kenny in her oral opinion deliv ered on April 9, 2009, which find substantial support in the record.

Affirmed.

1 N.J.S.A. 2C:44-1(a)(3), (6), (9).

2 N.J.S.A. 2C:44-1(b).