STATE OF NEW JERSEY v. JOHN DIAZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01298-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN DIAZ,

Defendant-Appellant.

__________________________________

April 9, 2014

Submitted March 26, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-02-0080.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Diaz appeals the order that denied his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. He argues that the attorney who represented him at his sentencing for making terroristic threats should have attempted to have him sentenced simultaneously for violating the probationary term he was serving on a prior offense. Defendant also argues that he was entitled to an evidentiary hearing on his PCR petition. Having considered defendant's arguments, the record, and controlling law, we affirm.

Defendant was serving a four-year probationary sentence for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), when he committed an act of domestic violence against his former girlfriend on August 3, 2009. That same day, defendant was incarcerated after a court issued a temporary restraining order against him. While in jail awaiting a hearing on a final restraining order, defendant obtained a cellular phone, called his former girlfriend several times, and threatened to kill her if she did not withdraw the domestic violence complaint. Defendant left a message in the victim's voice mailbox stating that if she did not drop the charges, "I'm going to destroy your van and I'm going to kill you when I get out."

As the result of defendant threatening to kill a witness against him in a pending case, a Cumberland County grand jury charged him in a three-count indictment with third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count one); second-degree witness tampering, N.J.S.A. 2C:28-5(a)(2) (count two); and fourth-degree criminal contempt for violating a temporary restraining order, N.J.S.A. 2C:29-9 (count three). On the day defendant's trial on those charges was scheduled to begin, he pled guilty.

Defendant agreed to plead guilty to count one in exchange for the State recommending a flat three-year custodial term, dismissing the remaining two counts, and dismissing several outstanding municipal court charges. When defendant entered the plea, he was serving a four-year probationary sentence that a court had imposed for a weapons offense. During the course of the plea proceeding, defendant acknowledged that he was on probation and further acknowledged that he understood his plea could result in a violation of probation.

At sentencing, defendant's counsel told the court that defendant had been charged with violating the terms of his probation on the prior weapons offense. Counsel asked if there were "any chance we can sentence [defendant] on [the probation violation] today." The court replied that because the probation violation concerned a conviction in another county, "I can't deal with it." When defense counsel declared, "I doubt [defendant] would have pled," the court interrupted and said that counsel could talk to his client.

The Cumberland County assistant prosecutor handling defendant's sentencing then informed the court that the Salem County Prosecutor's Office would recommend a sentence of three years on defendant's probation violation, concurrent with the three-year sentence to be imposed on the charge of terroristic threats. Defendant did not move to withdraw his plea after the assistant prosecutor made that representation. The court sentenced defendant in accordance with the plea agreement.

Defendant appealed his sentence, which we heard on a sentencing calendar pursuant to Rule 2:9-11 and affirmed in an order filed on September 21, 2011. Three months later, on December 20, 2011, defendant filed his PCR petition.

In his pro se petition, defendant alleged the following deficiencies in his attorney's performance:

(A) Failed to investigate the facts of the case and know that [the victim] lied and there were no substancial [sic] phone calls and nowhere near thirty from the county jail.

(B) Failed to explain to [defendant] that the State could not prove a threat to kill [the victim] because there was no immenent [sic] threat or capability to harm he [sic]. ([Defendant] was incarcerated).

(C) Defrauded [defendant] by playing upon his emotions at the time of trial and representing that [defendant's] mother had met with him and she wanted him to plead guilty, when, in fact, [defense counsel] never met with [defendant's] mother nor did she make the statements attributed to her, and

(D) Was ineffective as Criminal Counsel for all of the foregoing and being unprepared for trial by not investigating [defendant's] case, nor researching the law which would have told him (and [defendant]) that the State of New Jersey had no case against him and he did not have to enter a plea to any charge.

The court appointed counsel to assist defendant and counsel filed a supplemental letter brief raising the following arguments:

A. Ineffective Assistance of Counsel.

B. Petitioner was denied his Constitutional right to effective assistance of counsel due to the failure of trial counsel to adequately prepare for trial.

C. Petitioner's pro se filings.

Defendant, who was no longer incarcerated, waived his appearance at the PCR hearing. Defendant's attorney made the following argument, among others, concerning defendant's probation violation:

One additional issue in recalling is that as a side issue into the [p]lea, trial counsel, also, failed to make any attempt to address the violation of probation, that would have necessarily come with the guilty [p]lea in this matter; and it wasn't until sentencing that that issue arose. It was dealt separately in another county.

The court denied the petition. In its decision, the court noted, among other things, that defendant "at no time, made any [m]otion to withdraw his guilty [p]lea." The court also noted that defendant was facing a maximum custodial term of twenty years with ten years of parole ineligibility. Further, the court explained that it had no control over a violation of probation pending in another county. The court entered an order denying defendant's PCR petition. Defendant appealed.

In this appeal, defendant raises the following arguments:

POINT ONE

THE FAILURE OF TRIAL COUNSEL TO INCLUDE DEFENDANT'S FORTHCOMING VIOLATION OF PROBATION IN DEFENDANT'S PLEA AGREEMENT, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

The Sixth Amendment guarantees to persons accused of crimes the right to effective assistance of legal counsel in their defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a claim that counsel was not effective, a convicted defendant must satisfy the two-part test enunciated in Strickland: first, that counsel's performance was deficient; second, that the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). The defective performance is prejudicial if "there is 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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland, 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)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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. (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

The court hearing a PCR petition may, in its discretion, conduct an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

[R. 3:22-10(b).]

Here, even assuming that defense counsel's performance was deficient because he did not attempt to have defendant sentenced simultaneously for making terroristic threats and for violating the terms of his probation, defendant has not established a prima facie case of the second Strickland prong. Defendant has not established that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. When defendant entered his plea, he acknowledged that he was on probation and would have to separately "deal with that." At the inception of the sentencing hearing, defense counsel raised the issue of the probation violation. The assistant prosecutor represented to the court that the Salem County Prosecutor's Office would recommend a concurrent sentence on defendant's probation violation. Defendant received a concurrent sentence.

Defendant expected nothing else. In fact, he suggests that the risk he faced due to his attorney's ineffective assistance was being sentenced to a consecutive custodial term for violating his probation by making terroristic threats. That did not happen. Defendant received precisely the result he says he would have anticipated had his attorney consolidated the sentencing procedures. Defendant has not demonstrated a prima facie claim under Strickland. Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).