STATE OF NEW JERSEY v. JORGE QUINTANILLA

NOT FOR PUBLICATION WITHOUT THE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.

JORGE QUINTANILLA,

Defendant-Appellant.

__________________________________

December 28, 2015

Submitted December 16, 2015 Decided

Before Judges Alvarez and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-06-1040.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan M. Galler, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jorge Quintanilla appeals from a March 4, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count one); third-degree possession of a weapon with unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree possession of a weapon under circumstances not manifestly appropriate for its use, N.J.S.A. 2C:39-5(d) (count three). The judge merged count two into count one and sentenced defendant to the minimum sentence for murder, a thirty-year term of imprisonment without possibility of parole, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent nine-month term on count three. Pursuant to NERA, the judge also ordered defendant to serve a five-year term of parole supervision upon his release from prison.

On defendant's direct appeal, we affirmed the convictions, as well as the sentence imposed on the murder conviction. However, we remanded the matter so that the judgment of conviction (JOC) could be amended to reflect a merger of defendant's convictions for murder (count one) and possession of a weapon under circumstances not manifestly appropriate for its use (count three). State v. Quintanilla, No. A-3388-09 (App. Div. Feb. 27, 2012), certif. denied, 211 N.J. 607 (2012).

On October 1, 2012, defendant filed a PCR petition, contending that his trial counsel rendered ineffective assistance of counsel. Defendant did not elaborate on any of his claims and, instead, merely listed them as point headings in the petition. With regard to the only contention relevant to the present appeal, defendant stated that his trial and appellate counsel were ineffective because "they failed to raise [an] issue regarding the trial court[']s failure to advise petitioner, prior to trial, that he would be sentenced under [NERA] if convicted." Defendant did not attach a certification to his petition or further explain this contention. Defendant's assigned counsel subsequently submitted a brief that referred to this allegation and asserted that defendant "was not adequately informed that he 'was facing 85% parole ineligibility, there is no reference to NERA, nor does the [p]retrial [m]emorandum put [defendant] on notice that pursuant to NERA, he was also facing parole supervision upon his release.'"1

Following oral argument, the trial judge issued a thorough written decision denying defendant's petition. Contrary to defendant's claim that he was never advised of the impact of NERA, the judge found that the pretrial memorandum specifically stated that, if defendant went to trial, he faced a maximum term of life in prison on the murder charge and that he faced a maximum parole ineligibility period of 85% of life. Therefore, the judge found that defendant's contention lacked merit.2 This appeal followed.

On appeal, defendant raises the following contention

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO ADEQUATELY INFORM HIM OF THE POTENTIAL SENTENCING CONSEQUENCES [OF] PROCEEDING TO TRIAL.[3]

More specifically, defendant argues that his attorney failed to advise him that, if he were convicted of murder, a NERA offense, he would have to serve a mandatory period of parole supervision once he completed his sentence pursuant to N.J.S.A. 2C:43-7.2(c). Defendant contends that, had he known of this requirement, he might not have rejected the State's plea offer to plead guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), which, pursuant to N.J.S.A. 2C:43-7.2(d)(2), is also a NERA offense, in return for the State's agreement to recommend that defendant receive a twenty-five-year sentence, with an 85% period of parole ineligibility. We disagree.

When petitioning for PCR, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing, and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant 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 v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

We have considered defendant's contention in light of the record and applicable legal principles and conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

The pretrial memorandum does not specifically state that defendant would be required to serve a mandatory term of parole supervision once he was released from prison. However, even if defendant's attorney did not separately advise him of this requirement, defendant has still failed to demonstrate that this was an error that would have affected the outcome under the second Strickland prong.

Only "an attorney's gross misadvice of sentencing exposure that prevents [a] defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). Here, defendant did not provide the trial judge with a cogent explanation of how his trial attorney's alleged failure to tell him about the mandatory parole term factored into his decision to reject the plea offer and go to trial. Defendant did not even submit a certification with his PCR petition stating that this alleged mistake affected his decision in any way. Cummings, supra, 321 N.J. Super. at 170 (a defendant seeking PCR must present facts "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification").

Thus, defendant's present contention that he might have pled guilty had he known he would have to serve a mandatory term of parole is a classic "bald assertion" that did not warrant an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. Defendant was sixty-six years-old at the time the pretrial memorandum was entered and, therefore, likely concerned with the overall length of his sentence and the period of time he would have to serve before being eligible for parole. These topics were fully covered in the pretrial memorandum. Because both murder and aggravated manslaughter are NERA offenses, defendant would have been required to serve a mandatory term of parole regardless of whether he pled guilty or was convicted following a trial. Under these circumstances, we conclude that defendant failed to satisfy the second prong of the Strickland test.

Affirmed.

1 Defendant did not include a copy of his attorney's brief in his appendix. See R. 2:6-1(a)(2) (stating that "[b]riefs submitted to the trial court shall not be included in the appendix, unless either the brief is referred to in the decision of the court or agency, or the question of whether an issue was raised in the trial court is germane to the appeal"). However, this passage was quoted in the trial judge's written opinion.

2 As required by our decision on direct appeal, the judge also issued an amended JOC to reflect the merger of both counts two and three into count one.

3 Defendant also argues that his petition "should not have been procedurally barred." However, in his written opinion, the judge discussed all of defendant's allegations in detail and found that they lacked substantive merit. Therefore, we reject defendant's contention.