STATE OF NEW JERSEY v. ANTON L. BERNABELA

NOT FOR PUBLICATION WITHOUT THE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.

ANTON L. BERNABELA, a/k/a

ANTON BERNABELLA,

LAFFOREST GLOVER,

Defendant-Appellant.

_______________________________

July 23, 2015

Before Judges Yannotti and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-09-0845.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anton L. Bernabela appeals from an October 22, 2013 Law Division order denying his petition for post-conviction relief (PCR). In his PCR petition, defendant alleged trial counsel provided ineffective assistance by failing to investigate and locate witnesses and evidence to support his defense. The PCR judge denied this claim as a bald assertion unsupported by proofs showing what evidence counsel should have discovered and presented. Further, defendant alleged counsel failed to properly advise him regarding the State's plea offer. On this issue, the PCR judge conducted an evidentiary hearing. He found defendant's claim lacked merit and denied PCR.

On appeal, defendant argues

POINT ONE

THE PERFORMANCE OF THE DEFENDANT'S TRIAL ATTORNEY WAS DEFICIENT WHERE HE DID NOT REVIEW WITH THE DEFENDANT THE STRENGTHS AND WEAKNESSES OF THE CASE BEFORE THE DEFENDANT FORMALLY REJECTED THE PLEA OFFER. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. Art. I, para. 10 (1947)).

POINT TWO

THE DEFENDANT WAS PREJUDICED WHERE, IN ADDITION TO A MORE SEVERE PRISON TERM BEING IMPOSED AFTER A TRIAL AT WHICH HE WAS FOUND GUILTY, IT APPEARS THE DEFENDANT WANTED TO AMICABLY RESOLVE THIS MATTER AS LATE AS THE FIRST DAY OF TRIAL BY PLEADING GUILTY TO A LESSER TERM. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. Art. I, para. 10 (1947)).

We have reviewed of the arguments in light of the record and applicable law. We affirm.

Defendant was indicted and charged with first-degree carjacking, N.J.S.A. 2C:15-2, and fourth-degree joyriding, N.J.S.A. 2C:20-10(d), when, on June 14, 2007, he and four others called a cab; assaulted the driver, who jumped from his vehicle; and drove the taxi away. The facts are detailed in our unpublished opinion, affirming defendant's conviction. State v. Bernabela, No. A-2737-08 (App. Div. June 17, 2011) (slip op. at 2-5), certif. denied, 209 N.J. 98 (2012).

Prior to trial, the State extended a plea offer providing defendant could plead guilty to assault and the State would recommend a three-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, (requiring defendant serve 85% of the term prior to parole eligibility), and dismiss the other charges. Initially, defendant rejected the plea offer because it included a custodial sentence. Understanding the matter would be tried, counsel explained his proposed trial strategy: to argue the facts did not support carjacking, but rather two separate acts of assault and theft.

On the morning of trial, defendant had a change of heart. At defendant's request, defense counsel inquired about the availability of the plea offer. The assistant prosecutor advised the offer was no longer available.

Defendant was tried and convicted by the jury of carjacking. He was sentenced to ten years in prison, subject to NERA.

Filing his petition for PCR, defendant alleged counsel was ineffective because he failed to properly prepare a defense and induced defendant's rejection of the plea offer with a "guarantee" he would "win at trial" because the facts did not show conduct that is a carjacking. Defendant maintained he would have accepted the plea, but counsel's promises erroneously convinced him to reject the deal.

Defendant testified during the evidentiary hearing, relating the facts as set forth above. His attorney, who was called by the State, also testified. Counsel stated defendant was unwilling to plead guilty, so he explained a proposed strategy, knowing the State had video evidence of the incident. Counsel informed defendant he would argue his conduct portrayed two separate offenses, not one carjacking. Counsel denied he told defendant to go to trial because he would win, or even uttered a guarantee of success. Counsel insisted he never opined on the likelihood of acquittal, labeling such statements "professionally irresponsible," and did not even recite a possible percentage chance of acquittal.

Assessing the credibility of the witnesses, the PCR judge found counsel credible and rejected defendant's claims of a guaranteed acquittal at trial. PCR was denied. This appeal followed.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test for PCR review). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove

First, . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "The test is not whether defense counsel could have done better, but whether he met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).

"This test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, "[a] defendant must show that there is a reasonable probability 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

Effective assistance of counsel must also be provided during the plea stage of the criminal proceeding. "[T]he central role that plea bargains play in the criminal justice system requires a standard of representation in that process that satisfies the Sixth Amendment." Cortez v. Gindhart, 435 N.J. Super. 589, 600 (App. Div. 2014), certif. denied, 220 N.J. 269 (2015). See also Missouri v. Frye, __ U.S. __, __, 132 S. Ct. 1399, 1407, 182 L. Ed. 2d 379, 389-90 (2012) (noting plea bargaining is a critical stage of the proceeding requiring effective legal assistance).

Although defendant disagrees with the trial judge's factual finding that counsel did not guarantee victory at trial, he now suggests "the failure of the defendant's trial attorney to review with [him] the strengths and weaknesses of the case before . . . defendant formally rejected the plea offer amounted to deficient conduct." This contention is unsupported by the record.

Counsel's direct examination during the evidentiary hearing contained this colloquy

Q: Did you discuss with him the nature of the charges?

A: Yes.

Q: And did you discuss with him his custodial exposure?

A: Yes.

Q: And what did you say that exposure was?

A: He was offered and signed a pretrial memo rejecting the State's offer of three years at 85 percent. And that was in March of 2008.

. . . .

Q: Can you tell me what you discussed with your client about the 3, 85 percent . . . in the time leading up to the signing of the pretrial memo?

A: [W]e did talk about the case and I told him what the offer entailed. He made it very clear to me that he did not wish to serve any custodial time. And therefore, that's why he rejected the 3 at 85 percent. . . . He indicated he absolutely did not want to spend a day in jail.

Q: Was there any flexibility in his position?

A: No. Not until later on . . . .

Q: Well let's stay in . . . the time leading up to the pretrial memo.

A: Not leading up to the pretrial memo, no.

. . . .

Q: Did you factually analyze the case for him?

A: Yes.

The PCR judge found defendant rejected the plea offer. Thereafter, counsel discussed available legal arguments, offering his best theory of the case, with the understanding the anticipated evidence admitted by the State included a video of the incident.

Following our review, we determine the record does not support defendant's claim that counsel's performance was deficient or his assistance was ineffective. Rather, the facts support the PCR judge's findings and demonstrate counsel exercised reasonable judgment based upon defendant's decision to reject the plea offer in favor of trial.

The PCR judge found defendant rejected the custodial term in the plea, only changing his mind on the day trial commenced. By that time, the plea cutoff date had passed and the State withdrew its offer. We defer to these factual findings made by the PCR judge, Nash, supra, 212 N.J. at 540-41, and reject defendant's claim an evidentiary hearing was necessary to review whether a plea remained available. In light of conclusion showing Strickland's first prong is not met, we need not consider defendant's claim of prejudice as required by Strickland's second prong.

Finally, any arguments presented which we have not specifically discussed were found to lack merit, R. 2:11-3(e)(2), or were not considered because they were raised for the first time on appeal. State v. Galicia, 210 N.J. 364, 383 (2012).

Affirmed.