STATE OF NEW JERSEY v. CRISTINA ORTIZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2828-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRISTINA ORTIZ,

Defendant-Appellant.

________________________________

May 22, 2015

Submitted May 12, 2015 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-03-0639.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

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

PER CURIAM

Defendant appeals from a November 22, 2013 order denying her petition for post-conviction relief (PCR). Defendant argues that her plea counsel rendered ineffective assistance. We affirm.

Defendant and two co-defendants agreed to shoot another individual. One of the co-defendants drove defendant to the individual's location, and defendant fired a handgun at that individual but missed. Co-defendant drove off, circled back, defendant fired another shot, but missed again. Defendant and her co-defendants were subsequently arrested.1

Defendant pled guilty to Counts One, Three, and Four, and the State dismissed the remaining counts. Defendant established a factual basis. The judge then accepted the plea, and later sentenced defendant to ten years on Count Three, concurrent with five-year prison terms on Counts One and Four, subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.2 Defendant appealed her sentence as excessive and we affirmed. State v. Ortiz, No. A-3322-11 (App. Div. Aug. 29, 2012).

Defendant filed this petition arguing that her plea counsel failed to obtain an expert to determine whether defendant's purported use of medication prevented her from pleading guilty voluntarily and knowingly. The PCR judge denied the petition without an evidentiary hearing.

On appeal, defendant raises the following arguments

POINT I

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

POINT II

AS A RESULT OF [PLEA] COUNSEL'S FAILURE TO RETAIN AN EXPERT TO DETERMINE WHETHER DEFENDANT'S SCHIZOPHRENIA, AND THE PSYCHOTROPIC MEDICINE SHE WAS TAKING, AFFECTED HER ABILITY TO ENTER A KNOWING AND VOLUNTARY PLEA, DEFENDANT LACKED A FULL UNDERSTANDING OF THE CONSEQUENCES OF HER GUILTY PLEA, AND SHE WAS DEPRIVED OF HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

For a 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); 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, ___, U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___, 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 [or she] received proper advice from his [or her] trial attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674).

Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (alterations in original) (citation and internal quotation marks omitted).]

Although the question addressed in Nu ez-Vald z concerned the defendant's immigration status, we have applied the same standards to assess the validity of a claim of ineffective assistance of counsel in the context of a guilty plea that did not involve the immigration status of the defendant. See State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nu ez-Vald z standards to assess the materiality of erroneous information provided by defense counsel concerning the defendant's right to possess a firearm).

We are persuaded that defendant understood the ramifications of her guilty plea, entered her plea knowingly and voluntarily, and that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test, as well as the standard established under Nu ez-Vald z. Defendant never presented the PCR court with a report from an expert, indicating that she was not capable of knowingly and voluntarily entering into her guilty plea because of medications she was allegedly taking at the time. Even if we accepted defendant's argument that plea counsel should have obtained an expert to determine how defendant may have been affected by any medications she was allegedly taking, there is no reasonable probability that defendant would have insisted on going to trial.

During her plea hearing, defendant's answers were lucid, her concessions were corroborated by the evidence, and there is no indication that defendant was under the influence of any medication or other drugs. At the time of her plea, defendant answered, "No" when asked if she was on "any drugs, alcohol[,] medicine, anything that would influence [the] ability . . . to know exactly what [she was] doing[.]" The judge who accepted defendant's plea was also the PCR judge and she noted that at the time of the plea, defendant "answered all the questions appropriately, [she] stood up there. [She] didn't even look like [she was] on drugs . . . ."

Finally, a defendant is entitled to an evidentiary hearing only when "a defendant 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). Here, defendant fails to demonstrate a reasonable likelihood of success on the merits and thus is not entitled to an evidentiary hearing.

Affirmed.

1 A grand jury indicted and charged defendant with two counts of second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b (Counts One and Six); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Counts Two and Seven); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count Three); second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (Count Four); and two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Five and Eight).

2 This sentence ran concurrently with a three-year prison term for a conviction on a separate indictment.