STATE OF NEW JERSEY v. LUIS POZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS POZO a/k/a LUIS G. POZO,

Defendant-Appellant.

_______________________________

February 28, 2014

feb

Submitted February 12, 2014 Decided

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1657.

Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an August 16, 2012 order denying his petition for post-conviction relief (PCR). Defendant contends that he received ineffective assistance of his plea counsel. We affirm.

A grand jury indicted and charged defendant with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1) (counts one through three); first-degree vehicular homicide, N.J.S.A. 2C:11-5b(3) (counts four through six); second-degree vehicular homicide, N.J.S.A. 2C:11-5 (counts seven through nine); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts ten and eleven); second-degree aggravated assault by auto within 1000 feet of a school, N.J.S.A. 2C:12-1c(3) (counts twelve and thirteen); third-degree leaving the scene of an accident, N.J.S.A. 2C:11-5.1 (counts fourteen through sixteen); fourth-degree leaving the scene of an accident, N.J.S.A. 2C:12-1.1 (counts seventeen and eighteen); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (counts nineteen through twenty-three). Defendant's plea counsel negotiated an agreement that lessened defendant's possible jail time from an eighteen-year term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to a fifteen-year term subject to NERA. Defendant pled guilty to counts one, two, three, twelve, and thirteen, and the judge sentenced defendant in accordance with the plea agreement.

Defendant filed his petition for PCR. Judge Peter V. Ryan conducted a hearing and denied the petition, memorializing his reasons in an August 16, 2012 written opinion. Judge Ryan considered and rejected defendant's contention that plea counsel, by failing to sufficiently argue mitigating factors two, four, and seven, was ineffective under Strickland1:

In reviewing the record it is apparent that [plea counsel] provided a factual basis for each mitigating factor he argued for[,] which include[d] [factors] two, four, seven, ten and eleven. He recited facts that he deemed appropriate for each factor. When discussing mitigating factor seven, [plea counsel] did highlight to the court that the defendant did not have a prior criminal record. Arguably, he could have reinforced the fact that defendant had never been in trouble with the law . . . ; however, that factor alone would not minimize the heinous nature of the crime he did commit. . . . At sentencing [the sentencing judge] addressed mitigating factor seven, albeit in a confusing manner. . . . [I]t is apparent that [the sentencing judge] took into account the fact that the defendant did not have a prior criminal record despite not saying so specifically. . . .

It is quite evident that [plea counsel] zealously represented his client. It was because of his efforts that the defendant received a lesser sentence than he pled to. Simply put, defendant's allegations are self-serving statements unsupported and speculative, so as not to constitute a prima facie showing [of ineffective assistance of counsel].

. . . [Plea counsel] addressed both [mitigating] factors [two and four] to the court. Although both factors are arguably inconsistent with each other[,] it is apparent that [plea counsel] tried to highlight all factors that would allow the court to understand the defendant's actions . . . .

On appeal, defendant raises the following points:

POINT I

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHTS AND RENDERED THE PLEA ALLOCUTION AND SENTENCING AS FUNDAMENTALLY UNRELIABLE AND UNFAIR.

A. [Defendant] Was Denied the Effective Assistance of Trial Counsel.

POINT II

THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY [DEFENDANT].

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We thus affirm substantially for the reasons expressed by Judge Ryan in his comprehensive and well-reasoned opinion. We add only the following brief comments. In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S.at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct.at 2068, 80 L. Ed. 2d at 698). Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel:

[T]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) 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.

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)) (internal quotation marks omitted).]

We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test as well as the standard established under Nunez-Valdez.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).