STATE OF NEW JERSEY v. ALFONSO NICHOLAS

NOT FOR PUBLICATION WITHOUT THE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.

ALFONSO NICHOLAS,

Defendant-Appellant.

________________________________

October 29, 2015

Submitted September 1, 2015 - Decided

Before Judges Messano and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-10-1501.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alfonso Nicholas appeals from the April 1, 2013 order, which denied his petition for post-conviction relief (PCR). We affirm.

On April 25, 2007, defendant, then sixteen years old, engaged in a plan to sell cocaine to Brandon Faust. Following a dispute regarding the quality of the drugs, defendant pulled out a silver revolver and reached into Faust's car to retrieve the drugs. As Faust attempted to speedily drive away, defendant fired two rounds, fatally wounding Faust.

A Burlington County grand jury indicted defendant for second-degree conspiracy, N.J.S.A. 2C:5-2a(1) and (2); two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree robbery, N.J.S.A. 2C:15-1a(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Defendant pled guilty to an amended charge of first-degree aggravated manslaughter, in exchange for the State's agreement to dismiss the remaining charges and recommend a twenty-five-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility and five years of parole supervision upon release pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the plea hearing, the court engaged in a lengthy colloquy with defendant, confirming his understanding of the plea agreement and the rights he would waive by pleading guilty. Defendant acknowledged that his trial counsel had read each question on the plea forms to him; he understood and answered each question, initialed, and signed the plea forms; he voluntarily pled guilty and no one forced him to do so; he was satisfied with trial counsel's services; and he had no questions about his plea. Defendant admitted that during a drug transaction he shot Faust, in disregard of the probability that the shots would cause Faust's death.

On October 2, 2008, Judge James J. Morley conducted a sentencing hearing. Defense counsel argued for a lesser sentence than that recommended in the plea agreement. He pointed out that defendant was only sixteen at the time of the offense. Counsel also remarked that defendant had been addicted to marijuana since the age of six. The court, nevertheless, noted that defendant killed the victim just two months after completing juvenile probation, demonstrating that he had not been rehabilitated.

The judge found aggravating factors three and nine, but no mitigating factors. The judge sentenced defendant in accordance with the plea agreement to a twenty-five year prison term with an eighty-five percent parole bar on the amended charge of aggravated manslaughter. The judge also imposed a minimum of five years of parole supervision, and ordered the payment of restitution of $11,048 and the requisite fines and penalties. Defendant did not file an appeal.

Defendant filed a timely pro se PCR petition, which was subsequently supplemented by his assigned counsel. In his pro se petition, defendant argued that counsel failed to investigate and properly research "certain issues of the case" and failed to file an appeal. Defendant maintained that he was entitled to all of the mitigating factors.

On April 1, 2013, Judge Terrence R. Cook conducted oral argument on defendant's petition. Defendant asserted that trial counsel failed to argue that his cooperation in providing a statement to the detectives, in which he implicated himself and several of his co-defendants, deserved consideration of mitigating factor twelve. He also asserted that the payment of restitution to the family of the slain victim warranted consideration of mitigating factor six. Lastly, he claimed that trial counsel did not effectively argue that his age at the time of the offense, in combination with his marijuana addiction since age six, warranted application of mitigating factor four.

In response, the State asserted that defendant's unsworn statement was self-serving, at times untruthful, and not provided in anticipation of use in the prosecution of the co-defendants. The State also recognized that defense counsel argued for mitigating factor four at sentencing, citing defendant's age and early drug addiction. Finally, the State argued that defendant's payment of restitution to the family of the victim was not full compensation for their loss, so he should not receive consideration under mitigating factor six.

The judge issued a thorough and comprehensive written opinion, explaining his reasons for denying an evidentiary hearing, denying relief, and dismissing defendant's petition. He concluded that defendant failed to satisfy the Strickland test,1 since he made only "bare bones assertions of counsel's deficient performance because he chose not to argue for particular mitigating factors; and, assuming arguendo he had so argued, defendant was not prejudiced because the court would likely have sentenced the same."

On appeal, defendant raises only one argument for our consideration

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). Claims of constitutionally ineffective assistance of counsel are well-suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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.

It is well-recognized that a defendant is entitled to an evidentiary hearing "only upon the establishment of a prima facie case in support of post-conviction relief," and "[t]o establish a prima facie case, [a] defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b). It follows that a "defendant must allege specific facts and evidence supporting his allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "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).

Further, when claiming that trial counsel inadequately investigated his or her case, the defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. (citing R. 1:6-6). In other words, defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial.

In this case, defendant has failed to establish a prima facie claim of ineffective assistance of counsel. Defendant neither identified what possible evidence counsel may have discovered through an investigation, nor provided an affidavit or certification from any person who would have supported a defense to the charges he faced. In sum, defendant's claims are nothing more than bald assertions.

Furthermore, the record does not support the application of the mitigating factors defendant seeks. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Dalziel, 182 N.J. 494, 504-05 (2005). First, it is clear that defense counsel argued for consideration of defendant's age and drug addiction, which the court so considered. To the extent defendant urges further consideration of mitigating factor four, N.J.S.A. 2C:44-1(b)(4), ("substantial grounds tending to excuse or justify defendant's conduct"), he has not presented an affidavit from any expert to support his claim that the combination of his age and extended drug addiction contributed to his commission of murder on the night of the shooting. Nor has he shown the propriety of applying mitigating factors three, N.J.S.A. 2C:44-1(b)(3)("defendant acted under strong provocation"), or five, N.J.S.A. 2C:44-1(b)(5) (the victim's conduct "induced or facilitated" defendant's actions). The statements provided to the detectives by defendant and a co-defendant make clear that they conspired to sell drugs to Faust. Defendant stated that he brought the loaded gun to the location of the transaction because he did not know Faust. There was nothing in defendant's statement that suggested that Faust provoked or attacked defendant when he questioned the quality of the cocaine. Instead, defendant admitted that, when he believed Faust was going to drive away with the drugs without paying, he reached into the vehicle, grabbed the drug, and discharged the gun two times as the car drove away. Faust did not do anything to "induce" or "facilitate" defendant's conduct. Even if he did so, murder was not a reasonable response to what occurred here.

We have reviewed defendant's remaining contentions and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied from our review of the record that defendant has failed to make a prima facie showing that counsel's performance at sentencing was deficient within either prong of the Strickland/Fritz test. Hence, an evidentiary hearing was not warranted.

Affirmed.

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