STATE OF NEW JERSEY v. JOEY CONTRERAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4664-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEY CONTRERAS,

Defendant-Appellant.

______________________________________

February 21, 2014

 

Submitted January 21, 2014 Decided

 

Before Judges Yannotti and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 06-09-1120 and 07-07-0884.

 

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

 

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joey Contreras appeals from an order entered by the Law Division on June 14, 2011, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Passaic County Indictment No. 06-09-1120, with third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(3) and N.J.S.A. 2C:2-6 (count two); third-degree distribution of a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7, and N.J.S.A. 2C:35-5(a) (count three); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four); and third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a) (count five).

Defendant also was charged under Passaic County Indictment No. 07-07-0884, with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eleven); second-degree possession of a weapon while committing certain illegal offenses involving a CDS, N.J.S.A. 2C:39-4.1 (counts twelve and fourteen); third-degree possession of a prohibited weapon, N.J.S.A. 2C:39-5(b) (count thirteen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:35-3(f) (count fifteen); fourth-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(12) (count sixteen); third-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count eighteen).1

On November 27, 2007, defendant pled guilty to count three of Indictment No. 06-09-1120. On March 14, 2008, defendant also pled guilty to counts eleven and seventeen of Indictment No. 07-07-0884. On March 14, 2008, the trial court sentenced defendant under both indictments.

Defendant was sentenced to five years of imprisonment, with a three-year period of parole ineligibility, on count three of Indictment No. 06-09-1120. In addition, the court granted the State's motion for imposition of an extended term, and sentenced defendant to eight years of incarceration, with a four-year period of parole ineligibility, on count seventeen of Indictment No. 07-07-0884, with a concurrent five-year sentence on count eleven of that indictment. The sentence was concurrent to the sentence imposed under Indictment No. 06-09-1120.

Defendant appealed, challenging the sentences imposed on both indictments. The appeal was heard on our excessive sentence calendar. We affirmed defendant's sentences. State v. Conteras, Docket No. A-4999-07 (Sept. 24, 2009). Defendant thereafter filed a petition for certification, seeking further review by the Supreme Court. The Court denied the petition. State v. Contreras, 201 N.J. 154 (2010).

On September 30, 2010, defendant filed a pro se petition for PCR, alleging that he was denied the effective assistance of counsel. The trial court appointed PCR counsel for defendant, and counsel filed a brief on defendant's behalf, arguing that: defendant was entitled to PCR because his attorney rendered ineffective assistance of counsel; defendant's plea was not knowingly, voluntarily or intelligently given; the errors complained of cumulatively deprived defendant of a fair hearing; and the time bar of Rule 3:22-4 did not apply.

In support of his petition, defendant submitted a certification in which he stated that his attorney "pressured" him into pleading guilty. He said his attorney failed to discuss the case and review the State's discovery with him. He stated that his attorney did not properly advise him of the plea offer and his sentencing exposure. Defendant additionally stated that his attorney failed to file a motion to suppress evidence found in his home. He also said that he wanted to withdraw his plea because it was not given voluntarily and intelligently.

The PCR judge considered the petition on June 14, 2011, and on that date filed a written opinion in which he concluded that defendant's petition should be denied. The judge found that defendant's claim of ineffective assistance of counsel was not barred by Rule 3:22-4. The judge also found that defendant was not denied the effective assistance of counsel.

The judge wrote that the record established that defendant entered his plea knowingly, intelligently and voluntarily. The judge also wrote that counsel did not err by failing to file a suppression motion. The judge noted that a suppression motion had been filed, but the plea agreement called for its withdrawal. The judge memorialized his determinations in an order dated June 14, 2011, denying PCR. This appeal followed.

Defendant raises the following argument for our consideration:

POINT I

THE PCR COURT ERRED IN DENYING CONTRERAS AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

We conclude from our review of the record that defendant's arguments are entirely without merit. We affirm substantially for the reasons stated by the PCR judge in his written opinion dated June 14, 2011. We add the following.

Where, as in this case, a defendant alleges that he was denied the effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution, the claim is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of similar claims raised under the New Jersey Constitution.

In order to prevail on a claim of ineffective assistance of counsel, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Here, defendant claims that his attorney pressured him into accepting the State's plea agreement. He alleges that his attorney failed to consult with him adequately, did not advise him concerning the plea offer and sentencing exposure, and did not file motions or interview witnesses. Defendant claims that counsel's deficient handling of the matter placed undue pressure upon him to accept the State's plea offer. He argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition.

As the Supreme Court explained in State v. Preciose, 129 N.J. 451 (1992), a trial court has the discretion to determine whether an evidentiary hearing is required on a PCR petition. Id. at 462. A trial court ordinarily should grant an evidentiary hearing to resolve an ineffective-assistance-of-counsel claim if the defendant has presented a prima facie claim for PCR. Ibid. In determining whether a prima facie claim has been established, the court should view the facts in the light most favorable to a defendant. Id. at 462-63.

In this case, the PCR court correctly determined that an evidentiary hearing was not required because defendant failed to present a prima facie case of ineffective assistance of counsel. As the court noted in its written opinion, the record shows that, despite his claim to the contrary, defendant entered his plea knowingly, intelligently and voluntarily.

At the plea hearing of March 14, 2008, the judge stated that he assumed defendant was pleading guilty because he knew he had committed each of the offenses, and he wanted to accept the terms of the agreement that his attorney had arranged for him. Defendant said, "Yes." The judge then reviewed the terms of the plea agreement, noting in particular defendant's sentencing exposure. The judge emphasized that he could not allow defendant to plead guilty unless he was, in fact, guilty of the offense.

The judge again reviewed the sentences that could be imposed, and he asked defendant whether he understood the terms of the agreement. Defendant said, "Yes, sir." The judge asked defendant whether he had any questions at all about the plea agreement, and defendant replied, "No, sir."

The judge then asked defendant whether he was satisfied with the services that had been provided by his attorney. He responded, "Yes, Your Honor." The judge asked counsel whether he was satisfied that defendant understood completely all of the information on each page of the plea papers, the nature of the proceeding, the terms and consequences of the plea, and whether defendant was entering the plea knowingly and voluntarily. Counsel replied, "Yes, sir."

Defendant provided the court with a factual basis for his plea to counts eleven and seventeen of Indictment No. 07-07-0884. He admitted that on April 2, 2007, he was in possession of a handgun, for which he had not obtained a permit. In addition, defendant admitted that on the same date, he possessed marijuana in a public housing facility, and he intended to sell some of the marijuana to others.

In addition, defense counsel questioned defendant concerning the plea. The following colloquy ensued:

Q. You understand that you don't have to plead guilty if you don't want to?

 

A. Yes.

 

Q. If you pleaded not guilty, you would have the right to a trial, the right to be defended at that trial by a lawyer like myself, and you would have several other constitutional rights. All of those rights are now gone if the judge accepts this plea. Do you understand that?

 

A. Yes.

 

Q. And the only thing left for the judge to do will be to sentence you which he's going to do immediately succeeding this plea hearing. Do you understand that?

 

A. Yes.

 

Q. Did you have enough time to talk to me about your case and your guilty plea?

 

A. Yes.

 

Q. Are you satisfied with my representation?

 

A. Yes.

 

Q. And are you pleading guilty voluntarily of your own free will because you did commit those crimes and because you believe it's in your best interest?

 

A. Yes.

 

Q. Nobody forced you or threatened you to get you to plead guilty?

 

A. No.

 

Q. Nobody has made any promises besides what's in the plea agreement to get you to plead guilty?

 

A. No.

 

Q. And I went over all these questions and answers with you before you entered your plea. Is that correct?

 

A. Yes.

 

Q. And although I circled the answers on the plea form, these are in fact all your answers. Is that correct?

 

A. Yes.

 

Q. You understood everything we went over?

 

A. Yes.

 

Q. And you understand everything that's going on now?

 

A. Yes.

 

Q. There's nothing that would prevent you from understanding, like being under the influence of alcohol, narcotics or prescription medication?

 

A. No.

 

Q. Do you have anything that you would want to ask the judge or myself about your guilty plea?

 

A. No.

 

Thus, the record shows that defendant entered his plea knowingly, intelligently and voluntarily. Defendant's claim that he was not properly counseled concerning the plea, and his assertion that he was not advised concerning his sentencing exposure is not supported by the record. Defendant's statements at the plea hearing also refute any claim that he did not commit the offenses to which he pled guilty.

Moreover, as the transcript of the PCR proceeding indicates, defendant's trial attorney filed a motion to suppress evidence, which was withdrawn as a condition of the plea agreement. In his petition, defendant never established a likelihood of success on that motion, or any other motion that might have been filed.

Therefore, as the PCR court determined, defendant failed to establish a prima facie case of ineffective assistance of counsel. He did not present sufficient evidence to rebut the "strong presumption" that his attorney's handling of the matter fell "within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. In addition, defendant did not establish that but for counsel's alleged errors, he would have refused to plead guilty and would have gone to trial on the charges. State v. DiFrisco, 137 N.J. 434, 457 (1994).

Affirmed.

 

1 Defendant was not charged under counts one to ten of the indictment.