STATE OF NEW JERSEY v. ELIEZER NONIS

NOT FOR PUBLICATION WITHOUT THE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.

ELIEZER NONIS,

Defendant-Appellant.

August 27, 2015

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-11-1712.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Eliezer Nonis appeals from an October 3, 2013 order denying his petition for post-conviction relief (PCR). In his PCR petition, defendant contended trial counsel provided ineffective assistance by failing to negotiate a better plea bargain and, although not explicitly stated by defendant, that counsel was ineffective by allowing him to plead guilty even though he was "hampered in his ability to understand the NERA consequences of his guilty plea, particularly the three-year period of post-release supervision." The PCR judge found defendant's claims lacked merit and denied the request for an evidentiary hearing.

The record discloses the following facts and procedural history. Defendant was indicted and charged with second-degree eluding, N.J.S.A. 2C:29-2(b); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6); two counts of third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2); and two counts of third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).

Prior to trial, the State extended a plea offer, providing defendant would plead guilty to two counts of second-degree aggravated assault. In return, the State would recommend defendant be sentenced as a third-degree offender for a term of imprisonment not to exceed three years for the two aggravated assaults, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with one another.

Defendant's charges arose out of a high-speed chase in which he crashed his car into two other vehicles, resulting in injuries to the other drivers and significant damage to the other vehicles. Blood drawn for the defendant after the incident revealed he was operating his vehicle with a blood alcohol content more than three times the legal limit. The pursuit was also caught on MVR video.

After a lengthy plea colloquy, the judge accepted defendant's guilty plea. Defendant was sentenced to three years in prison on each aggravated assault charge, eighty-five percent to be served without parole, to run concurrently with one another. Additional fines, penalties and restitution were imposed.

Defendant then filed a timely petition for PCR. He alleged his counsel was ineffective for not negotiating a better plea bargain and that he (defendant) was impaired by prescription drug use at the time of his plea hearing.

Following oral argument, the PCR judge issued an oral decision, denying defendant's request without an evidentiary hearing. The judge found defendant failed to meet his burden in showing that his counsel's performance was deficient and, further, failed to establish that he was prejudiced by his counsel's alleged deficiencies. In denying defendant's request for an evidentiary hearing, the judge noted the record showed defendant's answers to the court's open-ended questions concerning the sentence implications of his plea. The court also determined that defendant failed to establish a prima facie case of ineffective assistance of counsel because he did not allege facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). This appeal followed.

On appeal, defendant raises the following issue for our consideration

POINT ONE

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

We considered defendant's arguments in light of the record, briefs submitted, and governing legal principles, and find them lacking in merit. R. 2:11-3(e)(2).

We add the following brief comments. "Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)).

The record of the plea hearing shows defendant represented he was satisfied with his attorney. Moreover, the record belies his assertion that he did not understand the consequences of his NERA plea. The court asked defendant open-ended questions concerning the length of his sentence, the parole ineligibility period, and the period of re-incarceration should he violate parole. Defendant answered each question knowingly and correctly. Further, defendant executed the supplemental plea form for NERA cases which specifically alerted him to the three- year term of parole supervision.

In order for defendant to obtain relief based on ineffective assistance grounds, he 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, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended 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). We conclude that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.

Finally, "[i]t is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013). Nevertheless, we agree with the PCR court's conclusion that an evidentiary hearing was not required and would not have assisted the court in its determination. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Affirmed.