STATE OF NEW JERSEY v. STEVEN M. TOTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0719-140T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN M. TOTH,

Defendant-Appellant.

_________________________________________________

September 15, 2016

Submitted June 2, 2016 Decided

Before Judges Fuentes and Kennedy.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment Nos. 09-10-1861 and 09-10-1704.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals the denial of his petition for post-conviction relief (PCR), following an evidentiary hearing, and argues

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S CONVICTION VACATED BECAUSE THE PCR COURT MISAPPLIED R. 3:22-2 POST-CONVICTION RELIEF INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS.

POINT II THE PCR COURT'S RULINGS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Moreover, defendant has filed a pro se supplemental brief in which he argues

WHEN THE SUPREME COURT OF NEW JERSEY ETHICS COMMITTEE FINDS AN ATTORNEY TO HAVE COMMITTED UNETHICAL CONDUCT AND THAT ATTORNEY ADMITS TO IT, THE PCR COURT SHOULD ALSO HAVE LOOKED AT SAID CONDUCT AS INEFFECTIVE ASSISTANCE OF COUNSEL.

We have carefully considered these arguments in light of the record and the applicable law, and we affirm substantially for the reasons expressed by Judge Michael Toto in his erudite written opinion issued in support of his order denying the PCR petition on June 27, 2014. We add the following.

Our review of a PCR claim after a court has held an evidentiary hearing "is necessarily deferential to [the] court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013); see also State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If a court has conducted an evidentiary hearing on a petition for PCR, we necessarily defer to the trial court's factual findings." (citing Nash, supra, 212 N.J. at 540)). However, we review any legal conclusions of the trial court de novo. Nash, supra, 212 N.J. at 540 41.

Guided by these standards, we briefly review the facts that give rise to this appeal. On June 7, 2011, defendant pled guilty to second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), third-degree theft, N.J.S.A. 2C:20-3(a), and second-degree certain persons not to have firearms, N.J.S.A. 2C:39-7(b), pursuant to a plea bargain, and on September 8, 2011, he was sentenced to an aggregate prison term of seven years subject to five years of parole ineligibility. Defendant appealed, and we affirmed. State v. Toth, No. A-0896-11 (App. Div. Jan. 16, 2013).

Thereafter, defendant filed a pro se PCR petition in which he alleged that his sentencing and appellate counsel failed to effectively represent him by, inter alia, making false representations respecting the appeal, failing to provide adequate representation on appeal, and failing to pursue certification to the Supreme Court. Defendant was assigned counsel on his PCR petition, and counsel submitted a brief in which he argued that sentencing and appellate counsel "convinced [defendant] to go along with the plea and not attempt to vacate it because she would be able to secure him a better sentence on appeal." He added that counsel's advice "purposely misled [defendant] into believing that he had no viable alternatives to accepting the plea offer."

Judge Toto granted defendant's application for an evidentiary hearing, but restricted the hearing to the advice of counsel regarding the initial plea, explaining that defendant failed to demonstrate that counsel's alleged appeal errors gave rise to a reasonable probability that the result would have been different.

Thereafter, the judge held an evidentiary hearing, where defendant's PCR counsel called D.M., his initial plea counsel, and L.G., his sentencing and appellate counsel, to testify. Briefly, D.M. stated that he filed motions on behalf of defendant, and that after the motions had been denied, he advised defendant that he "felt strongly" about defendant's chances of success on appeal, but he "made no promises." He also informed defendant about his sentencing exposure, and prior to entering his plea, D.M. told defendant that he "would likely receive seven years on the certain persons charge."

L.G. testified that she advised defendant there was "a viable issue to raise on appeal," but never promised a certain result. She further testified that she never spoke to defendant about his plea, and that defendant never spoke to her regarding the withdrawal of same. She added that she never told defendant that she could "get a lower sentence on appeal."

Defendant testified that both attorneys told him he would receive a "sentence of five years with three years of parole ineligibility," and that he would have gone to trial if he had known his sentence would be higher.

Judge Toto found the attorneys' testimony to be "reasonable and credible" and explained that their testimony was fully supported by defendant's own representation to the court during the plea colloquy. He concluded that defendant failed to demonstrate that either counsel's representation fell below an "objective standard of reasonableness." Finally, the judge found that neither attorney "made any promises regarding [defendant's] sentence" as a consequence of the appeal.

Defendant's arguments on appeal of the order denying his PCR petition assume that his counsel advised him that his "final sentence, upon appeal, would be a five with a three." These arguments, however, ignore the trial court's factual finding that neither counsel gave defendant that advice. As we have explained, we must hew to our "deferential standard of review" and "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). "In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony." State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010) (citing State v. Locurto, 157 N.J. 463, 471 (1999) and State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966)).

Applying these well-known standards, we hold that Judge Toto's factual determinations are supported by substantial credible evidence in the record, and that his analysis is unassailable. Defendant was required to demonstrate that "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so[.]" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)). Here, Judge Toto found that defendant failed to establish that he had been improperly advised and that he would have rejected the plea. These determinations are, as we have said, unassailable as they are fully supported by the record.

Lastly, we find defendant's pro se argument regarding a disciplinary order entered seven months after Judge Toto's order and opinion to be specious. It does not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.