STATE OF NEW JERSEY v. EDGAR D. PEREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1575-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDGAR D. PEREZ,

Defendant-Appellant.

________________________________________________________________

April 10, 2012

Submitted October 25, 2011 - Decided

Before Judges Messano and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-12-1080.

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 (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Edgar Perez appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.

Defendant was indicted on two counts of kidnapping, N.J.S.A. 2C:13-1(a) and N.J.S.A. 2C:13-1(b)(2); possession of a gun with the purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a); possession of a gun without a permit, N.J.S.A. 2C:39-5(b); and armed burglary, N.J.S.A. 2C:18-2. It was argued on his behalf that he was incompetent to stand trial. The court conducted a hearing and made detailed findings regarding the testimony received from defendant, lay and expert witnesses, and a medical history that reflected defendant's ability to "plan and execute an elaborate escape [while at Trenton Psychiatric Hospital], where the defendant was able to tamper with the window, create a dummy to look like he was sleeping in his bed and managed to travel from Trenton hospital to Irvington, New Jersey, where later apprehended." The court concluded it was "[c]lear . . . that the defendant is malingering and faking this to manipulate the courts so that he never actually has to face trial."

Thereafter, defendant pled guilty to the indictment pursuant to a plea agreement in which the State agreed to recommend a sentence of twenty years subject to the No Early Release Act, (NERA), N.J.S.A. 2C:43-7.2. He was sentenced accordingly.

Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence but remanded to the trial court to enter an amended judgment of conviction to merge the two convictions for kidnapping. State v. Edgar D. Perez, No. A-0306-07 (App. Div. Jun. 05, 2008).

Defendant filed a petition for PCR on June 16, 2008, in which he argued he was denied the effective assistance of counsel because "there were pre-trial issues such as competence, Miranda,1 and psychiatric issues" that were not "fully developed or disposed of." Defendant's request for the appointment of counsel was granted and an amended petition for PCR was filed. Defendant raised additional arguments including allegations that his counsel failed to conduct an adequate pre-trial investigation; that no interpreter was provided at the time of the custodial interrogation, rendering his statement involuntary; that no interpreter was used to assist him in consultations with his attorney; that he was not provided with relevant discovery to enable him to make an informed decision regarding his guilty plea; and that his attorney pressured him into entering the plea agreement.

The PCR court conducted an evidentiary hearing at which both defendant and his trial counsel testified. The PCR court placed detailed findings on the record and denied defendant's petition by order dated June 18, 2009.

In this appeal, defendant argues he was denied the effective assistance of counsel because his attorney failed to investigate the viability of an intoxication and/or insanity defense; failed to file a motion to suppress his statement; failed to use an interpreter during meetings; failed to explain the elements of the offenses with which he was charged; and misrepresented the maximum penalty defendant faced. We are not persuaded by any of these arguments and affirm.

As the PCR court observed, at least some of the arguments defendant now raises could have been raised on direct appeal and are therefore procedurally barred. R. 3:22-4. Nonetheless, the PCR court addressed the merits of each of the claims raised and set forth detailed findings to support its conclusion that defendant was not entitled to relief.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious 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." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

To support his argument that counsel was ineffective in failing to file a Miranda motion, defendant claimed that his statement to police was not voluntary because he was under the influence of drugs and no Spanish interpreter was provided to assist him. The PCR judge noted that the Miranda form was in Spanish; that, based upon his review of the transcript, there was "no language barrier" and "defendant was not telling the truth in claiming that he didn't understand his rights or that he didn't understand what the detective was saying when he made a confession." The court also found credible the detective's testimony that defendant was not under the influence of any drugs or alcohol at the time he made his statement. Finally, the judge stated it was "apparent" defense counsel "made the right decision" in not filing a meritless motion because there was sufficient evidence to convict defendant without his statement, and the prosecutor would have withdrawn the plea offer that substantially reduced defendant's exposure.

Defendant also claimed his counsel failed to provide him with relevant discovery or keep in contact with him, and coerced him into pleading guilty by telling him he could face the death penalty if he did not plead guilty. The PCR judge found these claims "totally refuted" by the testimony of defendant's trial counsel, which he found credible. Defense counsel testified that he had an interpreter available for every substantive discussion with defendant; that he reviewed psychiatric reports with defendant and advised him that he did not have a valid psychiatric defense; that he reviewed the plea form with defendant and made sure defendant knew and understood everything. Defense counsel testified that he never raised the death penalty with defendant because it did not apply and that he advised defendant that it was his decision as to whether he wanted to go to trial or plead guilty. The PCR judge found defense counsel "very credible, especially with regard to the procedures that he went through prior to trial[.]" As to defendant's claim that he was presented with the plea offer five minutes prior to walking into the courtroom, the PCR judge stated he did not "find that to be credible at all." The PCR judge said, "I don't find that the defendant has any credibility with his present claims[,]" and indeed, termed defendant's argument that he was coerced into pleading guilty "bogus[.]"

Based upon our review of the record, we are satisfied that the PCR judge's findings are supported by adequate, substantial and credible evidence.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).