STATE OF NEW JERSEY v. JOSE FIGUEROA

NOT FOR PUBLICATION WITHOUT THE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.

JOSE FIGUEROA,

Defendant-Appellant.

_______________________________

April 10, 2014

Before Judges Sapp-Peterson and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-06-1703.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, on the brief).

PER CURIAM

Defendant Jose Figueroa appeals from the denial of his petition for post-conviction relief (PCR). Defendant seeks to set aside his conviction and vacate his guilty plea because it was the product of coercion. He also contends he was promised that if he pled guilty to armed robbery, N.J.S.A. 2C:15-1, he would be given the same sentence as his co-defendant. The PCR judge found these contentions unfounded and denied PCR, without the need of an evidentiary hearing. In a single argument on appeal, defendant argues:

THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE THERE WAS PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL PRESENTED.

We disagree and affirm.

These facts are found in the PCR record. Pursuant to a negotiated plea agreement, defendant pled guilty to armed robbery in exchange for the State's promises to drop the remaining twelve charges in Indictment No. 10-06-1703, and recommend a ten-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent to the Connecticut sentence defendant was then serving. The trial judge accepted defendant's plea and later imposed a sentence in accordance with the State's recommendation. At sentencing, the State did not object to defendant's request to serve his New Jersey sentence in Connecticut.

Defendant did not appeal from his conviction. He filed a PCR petition alleging trial counsel was ineffective for failing to investigate his case. Defendant insists he asserted his innocence, but was given material misadvice by counsel regarding his options. Further, defendant contends he was coerced to plead guilty as the "only way" to escape the "dangerous assaultive behavior" of other inmates in the Camden County jail and return to the preferable custody of the State of Connecticut. Finally, defendant maintains trial counsel promised his sentence would be the same sentence as his co-defendant's, but the negotiated agreement contained a more severe sentence.

In denying defendant's application, the PCR judge determined defendant's allegations were insufficient to sustain PCR. He noted defendant failed to provide specific information to support his claims of coercion, yet his testimony at the time he entered his guilty plea averred his complete satisfaction with counsel's representation, and no one forced or threatened him to accept the plea agreement. The PCR judge determined defendant did not specify what conduct rose to ineffective assistance, except for a broad assertion that counsel failed to investigate his case. He found defendant did not explain what facts should have been considered or discovered that would have altered the outcome of the proceeding. Finally, the judge rejected defendant's sentencing disparity claim because he provided no evidence that he and his co-defendant were similarly situated.

After finding no prima facie basis for PCR, the PCR judge entered an order denying defendant's request for an evidentiary hearing. This appeal ensued.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).

It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [] Preciose, [supra,] 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013).]

New Jersey has adopted Strickland's two-prong test. Fritz, supra, 105 N.J. at 58.

Under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that counsel was so deficient, "counsel was not functioning as the counsel guaranteed by the Sixth Amendment. . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires a defendant identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). When seeking to set aside a guilty plea, the court also examines whether a defendant "receive[d] correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In the context of a guilty plea, this prong is satisfied when a defendant establishes a reasonable probability he would not have pled guilty, but for counsel's errors. Gaitan, supra, 209 N.J. at 351.

In this matter, defendant's PCR petition is void of proofs establishing ineffective assistance of counsel. Claims of coercion while in custody are belied by his plea hearing testimony. Also, contentions that counsel failed to investigate are unaccompanied by a description of what efforts counsel should have undertaken or the exculpatory facts he should have considered.

A defendant cannot rely on simple allegations of inadequate performance, such as failure to interview witnesses or failure to obtain a psychological examination. Fritz, supra, 105 N.J. at 64-65. Rather, a defendant must establish the right to PCR by a preponderance of the credible evidence. Preciose, supra, 129 N.J.at 459. In this regard, a defendant must articulate "specific facts" that "provide the court with an adequate basis on which to rest its decision" that the defendant established a prima facie case of ineffective assistance of counsel. State v. Mitchell, 126 N.J. 565, 579 (1992). Bald assertions, unaccompanied by evidential support, are insufficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (noting that PCR relief requires more than "bald assertions" by a defendant), certif. denied, 162 N.J. 199 (1999).

Turning to the sentencing disparity challenge, this issue should have been raised on direct appeal. Any matter which could have been raised on direct appeal, but was not, cannot serve as grounds for PCR. R. 3:22-2; R. 3:22-4. Here, defendant failed to file a direct appeal challenging his sentence. Notwithstanding this procedural bar, we note the record does not contain any facts to enable a review of whether defendant's sentence is appropriate in light of the sentence received by co-defendant, asserted to have engaged in similar conduct.

Finally, we reject defendant's contention the PCR judge erred in denying his request for an evidentiary hearing. An evidentiary hearing should be held only when a PCR petition presents material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J.72 (1999). A court has no obligation to grant a request for a hearing when it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J.89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See alsoR.3:22-10(e)(2) (stating that evidentiary hearings are unnecessary if "defendant's allegations are too vague, conclusory or speculative").

We conclude, from our review of the record, defendant failed to present a prima facie case of ineffective assistance of trial counsel. Accordingly, the PCR court correctly denied defendant's request for an evidentiary hearing. See Preciose, supra, 129 N.J. at 462-63.