STATE OF NEW JERSEY v. LISSETTE CORDOSO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0880-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LISSETTE CORDOSO,

Defendant-Appellant.

________________________________

December 15, 2015

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-03-0501.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an August 8, 2013 order denying her petition for post-conviction relief (PCR). She maintains she received ineffective assistance from her plea counsel, and the PCR judge erred by failing to address her arguments and make adequate findings. We affirm.

In March 2011, a grand jury indicted and charged defendant with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Nine); and first-degree robbery, N.J.S.A. 2C:15-1 (Count Ten). The State maintained defendant committed these crimes with two co-defendants. The other counts in the indictment pertain to co-defendants, who are not part of this appeal.

In January 2012, defendant pled guilty to second-degree conspiracy to commit robbery (Count Nine). At the plea hearing, defendant testified she agreed with co-defendants to commit a robbery at a convenience store. She indicated she was aware of both her own and co-defendants' tasks to commit the crime. The plea judge reviewed with defendant the penal consequences of the plea. Defendant testified she pled guilty voluntarily, had sufficient time to talk to plea counsel, and was satisfied with his services. The plea judge then accepted the plea, finding defendant pled guilty knowingly, freely, and voluntarily.

In April 2012, the court sentenced defendant, in accordance with the negotiated plea agreement, to eight years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2a. The judge dismissed Count Ten of the indictment, and imposed the prison term concurrent to another matter pending in a different county. The judge also issued a no-contact order with the victim and location of the robbery. Defendant did not file a direct appeal from her conviction.

In September 2012, defendant filed a pro se petition for PCR. With the assistance of PCR counsel, defendant filed an amended verified petition claiming plea counsel failed to argue mitigating factor N.J.S.A. 2C:44-1b(4)1 at sentencing, erroneously assessed the State's evidence, and failed to file a Miranda2 motion. The PCR court then scheduled oral argument on the amended petition.

At oral argument before the PCR judge, PCR counsel relied on his brief without orally supplementing his written contentions. The PCR judge rendered an oral opinion denying the amended petition. She concluded defendant failed to establish a prima facie case of ineffective assistance of counsel, and that defendant's contentions amounted to bald assertions, which were insufficient to warrant an evidentiary hearing. The PCR judge, who had taken the plea and was thoroughly familiar with the case, recounted how defendant pled guilty knowingly, intelligently, and voluntarily.

On appeal, defendant argues

POINT [I]

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HER CLAIM THAT HER ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO ADVOCATE FOR HER AT SENTENCING AND FAILING TO CONDUCT ADEQUATE PRETRIAL INVESTIGATIONS.

POINT [II]

IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT DENIED RELIEF WITHOUT STATING FINDINGS OF FACT OR CONCLUSIONS OF LAW REGARDING [DEFENDANT'S] CLAIM THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVOCATE FOR HER AT SENTENCING. (Not raised below).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Sherry Hutchins-Henderson in her oral opinion. We add the following comments.

We reject defendant's contention that she was entitled to an evidentiary hearing. A defendant is entitled to an evidentiary hearing only when he or she "has presented a prima facie [case] in support of [PCR,]" meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (first alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant fails to demonstrate a reasonable likelihood of success on the merits, and thus she is not entitled to an evidentiary hearing.

For defendant to obtain relief based on ineffective assistance grounds, she is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced her 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); accord State v. Fritz, 105 N.J. 42, 58 (1987). Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. 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, 1405, 182 L. Ed. 2d 379, 387 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). Defendant must demonstrate with "reasonable probability" the result would have been different had she received proper advice from her trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. [at 2068], 80 L. Ed 2d [at 698]).

We are persuaded the alleged deficiencies raised by defendant clearly fail to meet either the performance or prejudice prongs of the Strickland test. Even if we assume defendant has met the performance prong of the Strickland test, she has not shown with "reasonable probability" the result would have been different had she received proper advice from her plea counsel.

As to the first prong of Strickland, defendant generally maintains plea counsel failed to file a Miranda motion to suppress defendant's statement to the police, assess the State's evidence adequately, and zealously represent her interests at the sentencing hearing. These contentions are belied by the record.

Defendant testified she conspired with co-defendants to commit the robbery, she pled guilty because she was guilty of the crime, and she pled guilty without any pressure and understood she was waiving her right to proceed to trial. She also testified at the plea hearing no one threatened or coerced her to plead guilty, she did so voluntarily, and she was satisfied with the legal services of plea counsel.

We reject defendant's contention plea counsel was ineffective by failing to zealously represent her interests at the sentencing hearing. Here, defendant maintains plea counsel should have raised mitigating factor N.J.S.A. 2C:44-1b(4) because she purportedly suffers from bipolar disorder. "[T]he failure to present mitigating evidence or argue for mitigating factors" may constitute ineffective assistance of counsel where "mitigation evidence was withheld from the sentencing court." State v. Hess, 207 N.J. 123, 153, 154 (2011). Here, however, "[t]he record before us contains no indication of any similar withholding from the trial court of information that could bear on the court's sentencing analysis." State v. Friedman, 209 N.J. 102, 121 (2012).

Defendant did not produce any credible proof to substantiate her assertion she suffers from bipolar disorder or explain how this condition, if established, constitutes substantial grounds tending to excuse or justify her conduct and how it would have resulted in a reduced sentence. Defendant was the beneficiary of a favorable plea agreement into which she knowingly and voluntarily entered, fully understanding the nature and sentencing consequences thereof.

As a result, as to the second prong of Strickland, defendant produced no competent evidence to demonstrate with "reasonable probability" the result would have been different. Even if defendant had shown her plea counsel's assistance was deficient, which is not the case, defendant has not satisfied prong two of Strickland.

Finally, we reject defendant's contention that the judge failed to address her arguments and make sufficient findings. Rule 3:22-11 requires a PCR judge "state clearly [his or her] factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). "Naked conclusions" are insufficient. Ibid.

Here, the judge, who also accepted defendant's plea, reviewed defendant's testimony from the plea hearing, determined defendant pled guilty knowingly and voluntarily, and specifically related how defendant was satisfied with counsel's services. She then concluded there was not "any basis" to grant an evidentiary hearing, counsel was not ineffective, and emphasized defendant benefited from a favorable plea agreement entered into after "plea negotiations went on for a very, very long time." Even assuming the judge failed to adequately address defendant's argument that plea counsel was ineffective for failing to argue mitigating factor N.J.S.A. 2C:44-1b(4), this constitutes, at most, harmless error because defendant produced no competent evidence to demonstrate with "reasonable probability" the result would have been different.

Affirmed.

1 N.J.S.A. 2C:44-1b(4) permits a court to consider "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[.]"

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).