STATE OF NEW JERSEY v. BORIS ANEVSKI, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2131-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BORIS ANEVSKI, JR.,

Defendant-Appellant.

________________________________

November 29, 2011

Submitted: November 10, 2011 - Decided:

Before Judges Axelrad and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-09-0750.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Anthony J. Parenti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Boris Anevski, Jr., appeals from the Law Division's May 20, 2010 order denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant had alleged, in part, ineffective assistance of trial counsel in misrepresenting to him the sentence he would receive and in failing to articulate appropriate mitigating factors. We affirm.

The record reflects that on April 26, 2005, police responded to a Pathmark store in North Plainfield on a report of a stolen vehicle. Two women at the scene reported that their car had been forcibly taken, stating an individual, later identified as defendant, approached their car, opened the door, sat in the driver's seat, and proceeded to drive away. A struggle between the women and defendant ensued, during which defendant choked the front seat passenger and repeatedly struck the backseat passenger, ultimately pushing both from the moving vehicle.

Defendant fled the scene in the vehicle, making his way onto Route 22, traveling through North Plainfield, Watchung, Scotch Plains and into Mountainside, where the police pulled him over. Defendant then exited the vehicle and fled on foot before being apprehended by police.

Defendant was indicted by a Somerset County Grand Jury on two counts of first-degree carjacking, N.J.S.A. 2C:15-2a (counts one and two); second-degree eluding, N.J.S.A. 2C:29-2b (count three); third-degree receipt of stolen property, N.J.S.A. 2C:20-7 (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).

On June 9, 2006, defendant pled guilty before Judge Edward Coleman pursuant to a negotiated plea to all of the offenses in exchange for an aggregate custodial sentence of twelve years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. That agreement was contained in a plea form executed by defendant and confirmed in a detailed colloquy during defendant's plea hearing. Defendant acknowledged his knowing and voluntary decision to waive his right to a trial and to assert any possible defenses so he could take advantage of the plea offer. He represented he understood all of the terms and consequences of the negotiated plea and sentence, including the parole disqualifier. Defendant also expressly acknowledged the benefit he was receiving by the plea agreement as each of the carjacking counts carried a potential twenty-year prison term subject to NERA and the eluding offense carried a potential ten-year prison term. Defendant also informed the court that his attorney answered all of his questions and he had no questions of the court, he understood what he was doing, and he was not under the influence of anything that would affect his thinking. Defendant then provided a factual allocution for each of the offenses to which he pled guilty.

Counsel and the court had a discussion on the record about an expert report that had been obtained by defendant's prior counsel and addressed in a prior proceeding with defendant present. The prosecutor represented that defendant was evaluated and a conclusion was reached that defendant's condition was insufficient to support a criminal responsibility-reducing psychiatric defense, such as diminished capacity, legal insanity, or intoxication.1 The court then expressly asked defendant whether he had "any questions about any of this," to which defendant replied "no." The court accepted the guilty plea as being knowingly and voluntarily entered with an adequate factual basis for the offenses.

Defendant appeared before Judge Coleman for sentencing on December 8, 2006. Defendant addressed the court in a lengthy statement asking for leniency, and also requested the court sentence him to a charge that was one degree less pursuant to N.J.S.A. 2C:44-1. Judge Coleman found aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3), (6), (9), and no mitigating factors, N.J.S.A. 2C:44-1b. He sentenced defendant in accordance with the negotiated plea to an aggregate twelve-year custodial term subject to NERA by merging count four with count one and imposing concurrent twelve-year terms subject to NERA on both counts one and two, a concurrent seven-year term on count three, and a concurrent four-year term on count five. The court also imposed appropriate fines and penalties.

Defendant appealed, challenging only his sentence, which we affirmed on February 6, 2008 on an ESOA calendar. R. 2:9-11. On April 13, 2009, defendant filed a pro se motion to correct or vacate an illegal sentence. To the extent the motion sought a reduction in sentence, it was deemed time-barred; however, Judge Coleman converted the claims pertaining to ineffective assistance of counsel to a PCR petition. A supplemental brief was filed by counsel, and oral argument was conducted by Judge John Pursel on May 19, 2010.

By written opinion and order of May 20, 2010, the court denied defendant's motion. Judge Pursel summarized defendant's arguments as follows:

Defendant asserts that trial counsel was ineffective for several reasons. First, Defendant claims that he was advised that he would receive a sentence in the 2nd degree range, thus being closer to ten years as opposed to the twelve years he ultimately received. Next, defendant contends that it was ineffective when his attorney failed to place mitigating factors on the record and when he failed to ask for the sentencing judge to sentence defendant to one degree lower. These factors coupled with an argument for cumulative error make up Defendant's claim of ineffective assistance of counsel.

Defendant continued by asserting that the trial court failed to independently consider mitigating factors, despite their lack of presence on the record.

The court detailed and rejected each of defendant's arguments, finding defendant's PCR motion was "a clear attempt to re-litigate matters previously heard" on appeal as it focused on the application of mitigating and aggravating factors argued and considered in his sentence. Nevertheless, the court was satisfied that defendant's proposed mitigating factors three (that he acted under strong provocation), four (that there were substantial grounds tending to excuse or justify his conduct), seven (that he had no previous history of criminal activity), eight (that his conduct was a result of circumstances unlikely to reoccur), nine (that his character and attitude indicate he is unlikely to commit another offense), eleven (that his imprisonment would constitute an excessive hardship), and twelve (that he was willing to comply with law enforcement) were inapplicable. N.J.S.A. 2C:44-1b(3), (4), (7), (8), (9), (11), (12).

Furthermore, even if the mitigating factors were to apply, Judge Pursel was satisfied the seriousness of the crime substantially outweighed any mitigating factors present and thus defendant would be unable to satisfy the second Strickland prong necessary to make a prima facie showing of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).

With reference to the plea and sentencing colloquy, Judge Pursel also demonstrated that defendant was well-informed on the record on several occasions as to all the terms and ramifications of the negotiated sentence. Accordingly, the court found meritless defendant's contentions on PCR that he was taken by surprise at sentencing and expected a sentence in the second-degree range or that he was misinformed in any way by counsel as to the time he would face in prison.

On appeal, defendant contends the failure of trial counsel to investigate his state of intoxication and mental illness and to fully and truthfully tell him the terms of the plea bargain resulted in a coerced plea of guilty. Accordingly, defendant contends "a hearing is required to determine why counsel did not investigate possible defenses and why [defendant] asserts that he was told that he would be sentenced within the second-degree range," which he claims is a constitutional violation of his right to effective assistance of counsel. Based on our review of the record and applicable law, we are not persuaded by defendant's arguments and affirm substantially for the reasons set forth by Judge Pursel in his comprehensive written decision. We add the following brief comments.

Defendant claims the prejudice to him is that there appears to have been no pretrial investigation in that defense counsel merely read Dr. Greenfield's report and decided there was nothing he could do with the information of defendant's drug and alcohol addiction or with his mental illness. Additionally, he never interviewed any witnesses concerning defendant's state of mind, the length and frequency of his intoxication, and did not explore any further the extent of defendant's ability to function. Nor did defense counsel obtain an updated forensic psychiatric report. Defendant, however, makes no proffer as to what such investigation would have disclosed and how it would have affected either prong of the Strickland test.

Defendant also contends an evidentiary hearing could flesh out facts of what trial counsel told him that would have led him to believe he would have been receiving a lesser sentence. However, defendant provides no specifics of any misrepresentation or basis for his confusion. Nor does defendant contend that he was incapable of understanding the plea or sentencing proceedings. As was argued to Judge Pursel, defendant does not want his plea vacated. Defendant seeks to have his sentence reduced to a ten-year custodial term subject to NERA, and expects that by asserting these baseless claims, he will achieve that goal. As Judge Pursel recognized, defendant's position is not legally sustainable; he is bound by the terms of his negotiated plea and sentence.

1 The parties and court did not expressly refer to the October 25, 2005 forensic psychiatric report of Dr. Daniel Greenfield, which evaluated defendant's condition during the period of time surrounding the incident and while in jail five months later, but it is clear from the context that this detailed report, provided in the appellate appendix, is the report to which they were referring, and which had previously been provided to the parties and the court.