STATE OF NEW JERSEY v. PABLO CRUZ JIMINEZ

NOT FOR PUBLICATION WITHOUT THE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.

PABLO CRUZ JIMINEZ,

Defendant-Appellant.

___________________________________________

October 9, 2015

Submitted September 16, 2015 Decided

Before Judges Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0578.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Pablo Cruz Jimenez, appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

In May 2007, defendant was indicted and charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three).1

On October 23, 2006, defendant, along with two co-defendants, travelled to a bank in Paterson. Defendant told the co-defendants the victim would be making a deposit at the bank. One of the co-defendants exited the van and took a bag of money from the victim at gunpoint. He returned to the van and gave the bag to defendant. They began to flee in the van, but dispersed on foot when a tire went flat. Witnesses observed defendant running with the bag. While in flight, defendant discarded it. He also changed his clothes but, notwithstanding his attempt at evasion, was apprehended by police when he emerged from a back yard. The police recovered the bag in the vicinity of defendant's arrest.

On December 22, 2009, defendant pled guilty to count one of the indictment. The plea agreement called for a recommended sentence of ten years in state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). After extensive negotiations between defendant's counsel and the State, defendant entered into a plea agreement after the pleas of the co-defendants were entered which included their testimony, if required, for the State. During their respective pleas, the co-defendants implicated defendant as the principal actor in the crime.

Prior to defendant's plea, the judge, who was also the PCR judge, granted a motion filed by defendant's trial counsel seeking to admit expert testimony regarding a "fight or flight" defense.

During the plea colloquy, defendant initially failed to provide an adequate factual basis as required by Rule 3:9-2. Following the State's objection and trial counsel's subsequent off the record conference with defendant, a factual basis for the robbery was established. The plea colloquy included a voir dire of defendant by trial counsel, the State, and the judge. The colloquy also included defendant's testimony that he was not completely truthful when interviewed by the defense expert. Defendant acknowledged during the plea he was satisfied with trial counsel's representation.

On March 5, 2010, defendant was sentenced in accordance with the plea agreement. The remaining charges in the indictment were dismissed. Defendant did not appeal his conviction or sentence.

In April 2013, defendant filed a PCR petition which was supplemented by new counsel in January 2014. Defendant argued he was denied effective assistance of counsel because trial counsel essentially "forced" and otherwise "pressured" defendant into taking a plea deal, and told defendant his only choice was to plead guilty as he would not represent defendant at trial. Defendant alleged trial counsel made other misrepresentations and did not adequately prepare for trial.

In a thorough and well-reasoned oral opinion, the judge denied defendant's petition. This appeal follows.

Defendant raises the following argument on appeal

POINT I

THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE PCR COURT'S FINDINGS, WHICH WERE BASED SOLELY ON ITS BELIEF THAT TRIAL COUNSEL COULD NOT BE INEFFECTIVE BECAUSE DEFENDANT WAS THE RECIPIENT OF THE "BEST" AVAILABLE PLEA BARGAIN, WAS CONTRARY TO [PCR] PRIMA FACIE STANDARDS.

POINT II

THE COURT'S RULING DENYING [PCR] VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

"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 (citations omitted). "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. See R. 3:224(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), 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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Further, in satisfying the second prong, because prejudice is not presumed, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047 n.26, 80 L. Ed. 2d at 668n.26 (citation omitted). See also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The United States Supreme Court has applied 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 407 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.

Defendant contends he was forced into accepting the plea, and argues the PCR judge erroneously relied "solely" in making his determination on the belief that defendant was the recipient of the best available plea bargain. We disagree.

In addition to noting the plea negotiations engaged in by trial counsel, the PCR judge relied on other factors in holding that trial counsel provided effective assistance, including the pretrial motion to admit expert testimony in support of a novel defense. The judge also noted the comprehensive colloquy that established the factual basis for the guilty plea.

It is undisputed that defendant's conviction after trial would have exposed defendant to a potential sentence of twenty years subject to NERA. Defendant was advised during the plea process of the potential for imposition of this sentence. The State's proofs at trial would have been forceful; including the testimony of fact witnesses, the cooperating co-defendants, and compelling physical evidence. Through the employment of an objective analysis it may be reasonably concluded that, given the strength of the State's case, there would be a strong likelihood of conviction.

When viewed in light of the sentence, the court could have imposed upon conviction, the argument that defendant's counsel was ineffective by negotiating a plea on his behalf is unavailing. This is especially so in that the product of the agreement was defendant receiving the minimum sentence for a first-degree robbery conviction.

We note that "adequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543. Here, we find counsel's performance with respect to his representation of defendant including a successful pretrial motion and negotiation of a favorable plea agreement was well within and, arguably, exceeded the minimum standard of effective assistance of counsel. Stated succinctly, it was not only appropriate for defendant's counsel to advise him of the risk of proceeding to trial, it was his duty.

The record is devoid of any basis to support the finding that counsel's performance was deficient or that he was not functioning in a manner guaranteed by the Sixth Amendment. SeeState 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). Therefore, we conclude defendant has not made out a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J.at 463.

Notwithstanding our determination as to the failure to make out a prima facie case, we briefly address the second Stricklandprong. We hold with respect to the second prong, that defendant has failed to demonstrate how any alleged deficiency resulted in a prejudice that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J.at 52 (citation omitted).

Finally, we reject defendant's argument the court erred in denying his petition without an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2015). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.

Affirmed.

1 One of defendant's two co-defendants was charged with additional offenses.