STATE OF NEW JERSEY v. YSAIAS SEVERINO-LANTIGUA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3906-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YSAIAS SEVERINO-LANTIGUA,

Defendant-Appellant.

______________________________

November 15, 2016

Submitted October 25, 2016 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-02-0305.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a January 23, 2015 order denying his petition for post-conviction relief (PCR). We affirm.

In October 2011, police officers received information from a reliable informant that defendant was selling cocaine. The police set up surveillance of two residences, and conducted controlled buys of cocaine from defendant with the help of the informant. Police obtained search warrants for defendant, the residences, and defendant's vehicle. They executed the search warrants and found marijuana, cocaine, materials to package and manufacture cocaine, ecstasy pills, a nine millimeter handgun, a twenty-two caliber handgun, bullets, and large quantities of cash. The police arrested defendant.

A grand jury indicted and charged defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (Count One); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (Count Two); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (Count Three); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (Count Four); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (Count Five); second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1 (Count Six); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (Count Seven); second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1 (Count Eight); second-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 2C:39-5(b) (Count Nine); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (Count Ten); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (Count Eleven); second-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b) (Count Twelve); (13) second-degree possession of firearm while engaged in CDS related activity, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:39-4.1 (Count Thirteen); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Count Fourteen); second-degree conspiracy, N.J.S.A. 2C:35-5(b)(1), N.J.S.A. 2C:35-5(b)(2), and N.J.S.A. 2C:5-2 (Count Fifteen); third-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25 (Count Sixteen); first-degree leader of narcotics trafficking network, N.J.S.A. 2C:35-3 (Count Seventeen); and first-degree maintaining a CDS production facility, N.J.S.A. 2C:35-4 (Count Eighteen).1

In October 2012, defendant pled guilty to Count Two, first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); Count Five, third-degree possession of CDS with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7; and Count Nine, second-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 2C:39-5(b). Pursuant to the plea agreement, the State agreed to dismiss defendant's remaining counts and recommend a sentence of fifteen years in prison with a seven-year period of parole ineligibility.

In November 2012, defendant appeared for sentencing and for the first time filed a motion to withdraw his guilty plea. The judge denied defendant's motion and sentenced defendant in accordance with the plea agreement. The judge imposed a fifteen-year prison sentence with a period of seven years of parole ineligibility on Count Two; a concurrent five-year prison sentence with a period of three years of parole ineligibility for Count Five; and a concurrent ten-year prison sentence with a period of five years of parole ineligibility for Count Nine.

In May 2013, defendant filed a verified petition for PCR. The PCR judge heard argument on the petition, rendered an oral opinion, and denied the petition without conducting an evidentiary hearing.

On appeal, defendant argues

POINT I

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON [PCR.]

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO [PCR.]

A. [Plea] counsel was ineffective for failing to adequately investigate the facts and law of the case before advising defendant on a plea agreement[.]

B. [Plea] counsel was ineffective for failing to request discovery in order to challenge the veracity of the confidential informant used as the foundation for the search warrant and arrest warrant of defendant[.]2

C. [Plea] counsel was ineffective for failing to file a motion to suppress evidence from an illegal search[.]

D. Defendant received ineffective assistance when [plea] counsel affirmatively misinformed [him] about the penal consequences of his plea[.]

E. Defendant received ineffective assistance of counsel for [plea] counsel's failure to challenge the lack of a factual basis to establish his guilty plea[.]

F. Defendant received ineffective assistance [of counsel] when [plea] counsel failed to use the [Slater] factors in his motion to withdraw his plea[.]

We reject defendant's contention that the judge erred by failing to conduct 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) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Defendant asserts he was entitled to an evidentiary hearing for two reasons. Defendant first argues that he was entitled to an evidentiary hearing because it was unclear where he resided. As to the location of the searches, the judge correctly explained that defendant had access to the residences listed on the search warrants. He stated that the defendant was observed by police in both residences, his wife3testified that one of the residences was their home, defendant's mail went to that residence, and the defendant had keys to two different entrances of the other residence. Therefore, defendant's contention as to where he resided is without merit.

Defendant also contends he was entitled to an evidentiary hearing because his plea counsel failed to obtain the identity of the confidential informant (CI). It is undisputed that the CI was not an active participant in the crime for which defendant was prosecuted. Rather, he was involved in controlled buys with the police. SeeState v. Brown, 170 N.J.138, 148-50 (2001) (finding that the confidential informant's identity should not be revealed where the informant conducted two controlled buys supervised by police). As a result, we place no weight on his CI assertions.

In addition to raising these two unsuccessful arguments, defendant fails to otherwise demonstrate a reasonable likelihood of success on the merits. He is therefore not entitled to an evidentiary hearing.

After considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We add the following remarks.

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, 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 challenge to guilty pleas based on ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. 156, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. 133, ___, 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 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 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant contends that plea counsel's failure to file a motion to suppress evidence seized from the search constituted ineffective assistance of plea counsel. He contends that the search warrant stated that he lived at both residences and therefore it was "dubious." There was probable cause to search the premises. See State v. Jones, 179 N.J. 377, 388 (2004) (explaining "a search executed pursuant to a warrant is presumed to be valid . . ."). And there is no credible evidence that the result would have been different if the motion had been filed. Thus, defendant failed to meet either Strickland prong.

Defendant's assertion that plea counsel misled him into believing drug court was part of his plea is belied by the record. Defendant signed a plea form indicating that no promises were made to him. Plea counsel reviewed the comprehensive sentencing memorandum with defendant the day before sentencing and defendant did not object to the sentence. And nothing in the record supports defendant's contention that plea counsel misled him, or that there was a reasonable probability the defendant would not have pled guilty if drug court was not part of the plea deal. Therefore, defendant has failed to show either prong of Strickland.

Defendant argues that plea counsel was ineffective for not challenging the factual basis of the plea. He asserts there was no factual basis to establish the guilty plea because defendant only answered "yes" or "no," which did not, in "his own words," support the factual basis for the plea. Defendant further contends that there was no evidence in the record that he had intent to distribute CDS within a 1000 feet of a school.

To properly assert a factual basis for a plea agreement, a judge "must be satisfied that the defendant has given a factual account that makes him guilty of the crime." State v. Tate, 220 N.J. 393, 405 (2015) (citing R. 3:9-2). "A factual basis for a plea must include either an admission or the acknowledgment of facts that meet 'the essential elements of the crime.'" Id. at 406 (quoting State ex rel. T.M., 166 N.J. 319, 333 (2001)). Defendant only needed to affirm the factual basis by "an admission" or "acknowledgement of the facts," and therefore answering "yes" or "no" was sufficient to establish a factual basis. Ibid.

At the plea hearing, defendant acknowledged that one of the residences was his home, he possessed cocaine in the home, and that he intended to distribute the cocaine. He also admitted that he possessed the nine millimeter handgun found in his home. Defendant acknowledged that he knew it was a crime to intend to distribute CDS within 1000 feet of a school zone, and he admitted that his home was within multiple school zones.

The PCR judge found that there was an adequate factual basis for the guilty plea. He explained that the defendant acknowledged that one of the residences was his home, he had intent to distribute CDS within 1000 feet of several schools, he possessed a handgun, initialed the plea form, and acknowledged the recommended sentence. Furthermore, the judge explained the court found that defendant entered into the plea knowingly, voluntarily, and intelligently. In addition, the judge also found that the degree of the offense was satisfied when defendant acknowledged that 300 grams of cocaine was found in his home.

Defendant contends that plea counsel was ineffective when he failed to use the Slaterfactors in his motion to withdraw defendant's plea. SeeState v. Slater, 198 N.J.145 (2009). The PCR judge found that defendant did not provide an explanation for withdrawal of his plea other than not wanting a pool attorney. A trial court must apply the Slaterfactors when evaluating a motion to withdrawal a plea. Id.at 157-58. They must balance "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. The movant does not need to satisfy all four prongs of the test, nor is any factor dispositive on the outcome. State v. O'Donnell, 435 N.J. Super. 351, 369 (App. Div. 2014) (citing Slater, supra, 198 N.J. at 162). In addition to not asserting a colorable claim of innocence, the evidence against defendant was overwhelming and he entered into the plea agreement admitting his guilt.

Affirmed.

1 The same grand jury indicted and charged codefendants, including defendant's wife, with committing these offenses.

2 Defendant filed a pro se supplemental brief arguing this point on appeal.

3 The sentencing judge stated that although the woman was technically defendant's girlfriend, she would refer to her as wife because defendant had a long-term relationship with her, they had a child together, and they held themselves out to be husband and wife.