STATE OF NEW JERSEY v. PAUL GONZALEZ-ORTEGA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1114-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL GONZALEZ-ORTEGA,

Defendant-Appellant.

__________________________________________

November 29, 2012

Submitted August 13, 2012 - Decided

Before Judges Ashrafi and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-05-0889.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Paul Gonzalez-Ortega, appeals from the March 15, 2010 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.

A grand jury indicted defendant for first-degree aggravated sexual assault upon a minor less than thirteen years of age, N.J.S.A.2C:14-2a(1); second-degree sexual assault, N.J.S.A.2C:14-2b; second-degree debauching the morals of a child, N.J.S.A.2C:24-4a; third-degree concealing evidence, N.J.S.A.2C:29-3(b)(1); third-degree witness tampering, N.J.S.A.2C:28-5a; and fourth-degree violation of a no contact order, N.J.S.A.2C:29-9a. The indictment stemmed from charges that defendant had sexual intercourse with a twelve-year-old girl and after his arrest wrote letters to the victim in violation of a no-contact order. Defendant, who was twenty-six at the time, knew that the girl was a minor.

Defendant retained attorney Paul W. Bergrin to represent him in the criminal proceedings. Bergrin arranged for another attorney Dana M. Scarrillo to assist with the case.1

On June 15, 2005, defendant, represented by Scarrillo, appeared before Judge Patrick J. Roma and pled guilty to first-degree aggravated sexual assault and fourth-degree contempt. As part of the plea agreement, the State recommended that the defendant be sentenced on the aggravated sexual assault count as a second-degree offender to eight years in prison subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2, and receive a concurrent eighteen-month sentence for the fourth-degree contempt count. Before accepting his plea, the judge questioned the defendant extensively regarding his understanding of the plea and sentence, its factual basis, and the voluntariness of his decision. On September 30, 2005, Judge Roma sentenced defendant consistent with the plea agreement. Defendant did not file a direct appeal.

On April 23, 2009, defendant filed a pro sePCRpetition. On October 30, 2009, assigned counsel filed a brief in support of defendant s petition for post-conviction relief, contending his trial attorney provided ineffective assistance of counsel.

At the March 5, 2010 PCR hearing, defendant argued that Bergrin and his firm were compromised in their ability to effectively represent defendant as a result of contemporaneous state and federal criminal investigations of Bergrin, which resulted in federal indictments in 2009. Judge Roma analyzed the claim of conflict of interest under the standard in State v. Bell, 90 N.J.163, 171-73 (1982), where the court recognized an actual conflict or actual prejudice only if "the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice." In determining whether a substantial likelihood of prejudice existed, the judge relied on State v. Pych, 213 N.J. Super. 446 (App. Div. 1986), certif. denied, 107 N.J.90 (1987), where the court found no significant likelihood of prejudice when an attorney was indicted in one county while his client was under indictment in another county.

Judge Roma concluded that, as Bergrin was not indicted in the same county or by the same grand jury as the defendant, no evidence showed that the judge or prosecutor was aware of the investigation, and Bergrin was not indicted until several years after the defendant s plea and then by federal authorities, defendant had not shown a significant likelihood of prejudice. In addition, the judge noted that Bergrin played a minimal role in defendant s representation and Scarrillo, about whom defendant has presented no evidence of an investigation or an indictment, actually negotiated the plea agreement.

Judge Roma determined that the defendant was not prejudiced by his attorney s representation, as required for an ineffective assistance counsel claim under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L. Ed. 2d 674, 693(1984). Consequently, the judge denied the PCR petition. This appeal followed.

On appeal, the defendant raises the following contentions:

POINT ONE THE TRIAL COURT ERRED IN DENYING DEFENDANT S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PLEA COUNSEL.

POINT TWO DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

POINT THREE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

Both the United States Constitution and New Jersey Constitution guarantee the right to the assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J.5, 23 (1997) (citation omitted).

We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J.42, 58 (1987). In order to establish an ineffective assistance of counsel claim, a defendant must first show "that counsel s performance was deficient." Fritz, supra, 105 N.J.42, at 52 (quoting Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed.2d at 693). The defendant must then demonstrate "that the deficient performance prejudiced the defense." Ibid.

In claiming ineffective assistance of counsel related to the performance of plea counsel, the defendant must show that "counsel s assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco,137 N.J.434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). In addition, the defendant must show that "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." Ibid.(quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

A defendant is generally entitled to an evidentiary hearing only if he or she makes a prima facie showing of "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J.89, 158 (1996) (citing State v. Preciose, 129 N.J.451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super.154, 169 (App. Div.), certif. denied, 162 N.J.199 (1999).

An effective counsel is one "who represents his client with undivided loyalty, 'unimpaired by conflicting interests.'" State v. Cottle, 194 N.J.449, 466-67 (2008) (quoting State v. Bellucci, 81 N.J.531, 538 (1980)). Thus, when an attorney is "hobbled by conflicting interests that so thoroughly impede his ability to exercise single-minded loyalty on behalf of the client," he or she is unable to render effective assistance as guaranteed by our constitution. Ibid.

In analyzing whether a conflict of interest has deprived a defendant of effective assistance of counsel, our Supreme Court applies a two-tiered approach. Cottle, supra, 194 N.J.at 467; Norman, supra, 151 N.J.at 24-25. In the first tier, which refers to a per se conflict of interest, "prejudice is presumed in the absence of a valid waiver, and the reversal of a conviction is mandated." Cottle, supra, 194 N.J.at 467. Few circumstances give rise to a per se conflict. In the context of a conflict between a lawyer s representation and a lawyer s involvement with law enforcement, the Court has only found a lawyer is engaged in a per se conflict where an attorney is "contemporaneously under indictment in the same county as his client, and being prosecuted by the same prosecutor's office . . . absent a valid waiver by the client." Id.at 473. In the second tier, where there is no per se conflict, an actual conflict will be found only where "the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice." Bell, supra, 90 N.J.at 172.

We have carefully considered defendant's contentions in view of the applicable law, and we affirm substantially for the reasons stated in Judge Roma's March 10, 2010 oral and November 23, 2010 written opinions. R.2:11-3(e)(2). We add only the following brief comments.

Defendant's principal claim is that Bergrin and his firm were compromised in their ability to effectively represent him because of a conflict with the simultaneous criminal investigation of Bergrin that resulted in a federal indictment many years later. We agree with the trial judge that defendant has not provided sufficient evidence showing that Bergrin's loyalty was so hobbled by an ongoing criminal investigation that he was unable to provide legal services to defendant in an "independent and vigorous manner" to demonstrate a per se conflict. SeeCottle, supra, 194 N.J.at 473. Hence, defendant must demonstrate a significant likelihood of prejudice. Id.at 467. Here, Bergrin was not under indictment in 2005 in the same county by which the defendant was indicted. Additionally, Bergrin was not indicted until several years later by the federal authorities, not the Bergen County Prosecutor's Office. Therefore, the facts here fall far short of what is required to find a significant likelihood of prejudice. SeePych, supra, 213 N.J. Super.at 457-58. Significantly, defendant does not point out any specific deficiency in Bergrin's or Scarrillo's competence or performance in obtaining a very favorable plea.

From our review of the entire record, we are convinced that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorneys' performances were deficient or resulted in a substantial likelihood of prejudice to his case.

Affirmed.

1 The arrangement between the two attorneys is not disclosed in the record but Scarrillo signed the plea agreement "for Paul W. Bergrin."