STATE OF NEW JERSEY v. OSCAR CONTRERAS

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2174-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSCAR CONTRERAS,

Defendant-Appellant.

____________________________________

May 2, 2013

 

Submitted April 15, 2013 Decided

 

Before Judges Maven and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-04-0649.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).

 

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Oscar Contreras appeals from a June 23, 2011 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Following an incident involving a female acquaintance, a Hudson County Grand Jury charged defendant in a five-count indictment with second-degree burglary, N.J.S.A. 2C:18-2 (count one); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count two); second-degree kidnapping, N.J.S.A. 2C:13-1b (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count four); and third-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e) (count five). Count two was dismissed prior to jury selection.

On April 28, 2009, after jury selection began and trial was about to commence, defendant entered into a plea agreement with the State. In exchange for defendant's guilty plea to the second-degree kidnapping charged in count three of the indictment, the State agreed to dismiss the remaining counts, and to recommend a seven-year prison term, subject to the No Early Release Act (NERA). Pursuant to the plea agreement, defense counsel was free to argue for a five-year sentence subject to NERA, the minimum sentence applicable to the kidnapping charge.

Prior to sentencing, defendant, now represented by new counsel, moved to retract his guilty plea. On December 17, 2009, Judge Fred J. Theemling, Jr., conducted an evidentiary hearing, at which plea counsel, defendant, and the assistant prosecutor who negotiated the plea deal, all testified. At the conclusion of the hearing, the judge found plea counsel's testimony "extremely credible and believable." In rejecting defendant's assertion that plea counsel had been ineffective for failing to conduct a proper investigation, the judge noted that suchinvestigation wouldhave been fruitless as defendant admitted to counsel that he had committed all of the acts alleged. As plea counsel testified, his strategy would simply have been to rely upon cross-examination, and to call character witnesses, had defendant elected to proceed to trial. Plea counsel further testified that he also explored the possibility of a psychiatric defense. However, although defendant was depressed, he had no prior mental health history. Further, whenever plea counsel met with defendant, he observed that defendant was "coherent, he was logical[,] .. .he understood everything I said to him, everything that was going on." Counsel was left with no concern about defendant's mental fitness, either at the time of the alleged offenses or when he entered his guilty plea.

Judge Theemling next engaged in a Slater1 analysis and determined defendant was not entitled to withdraw his plea. First, the judge noted that defendant did "not present[] specific credible facts to support his claim of innocence." Rather, defendant had admitted to plea counsel that the victim's allegations were accurate. Moreover, defendant's depression did not give rise to an insanity defense. Second, defendant sought to withdraw his plea because he felt pressured by plea counsel who, defendant claimed, did not undertake a proper investigation. However, after presiding over both the plea and motion hearings, the judge noted that "[defendant's] demeanor and behavior contradicted his claim of panic, pressure, and dissatisfaction. It is clear from the record that [defendant] entered his plea voluntarily, and knowingly[.]" Defendant himself testified during the motion hearing that "I knew what I was doing. I knew I was going to take the plea to try to stop the trial."

In considering the third and fourth prongs of the Slater analysis, Judge Theemling stated:

Third, this Court should consider the nature of the plea agreement. Here, [defendant] entered his plea by way of agreement. In exchange for his plea [defendant] received lesser charges and lesser jail exposure. As such, this factor cuts against [defendant]. However, the vast majority of criminal cases are resolved through plea bargains. This factor should not be given great weight in the balancing process.

 

Fourth, this Court should not consider any unfair prejudice to the State. Here, beyond normal trial preparation, there was no prejudice to the State and no unfair advantage to [defendant].

 

The judge concluded:

Basically, [defendant's] reasons for the pressure alleged was he was unsatisfied with the representation by his attorney, and was taking the plea to delay the proceedings so that he could make an effort to get another attorney in the future to (indiscernible) his plea. That was the only reason, really, I could see from the testimony as to why he took the plea. As I said from the very beginning, I find that [plea counsel's] testimony was very clear, [defendant] completely indicated his guilt at his first meeting with his attorney. His attorney was looking for alternates through plea efforts and other negotiations, and basically indicated, and even [defendant] indicated during his testimony, his attorney said they were going to have [to] rely on credibility, cross[-]examination, challenging the victim's credibility, fully knowing that the defendant did each and every thing that was claimed by the victim. So, I am denying his application before the [c]ourt.

 

Following denial of the motion to withdraw his guilty plea, on January 8, 2010, the judge sentenced defendant to serve a custodial sentence of five years, with an eighty-five-percent period of parole ineligibility. The court also imposed mandatory fines, penalties, and assessments. Defendant did not file a direct appeal of his sentence or the denial of his motion to withdraw his guilty plea.

In January 2011, defendant filed a pro se PCR petition. Counsel was appointed to represent defendant and filed a letter brief in May 2011. Following oral argument, Judge Theemling denied defendant's petition in a thorough oral and written opinion and accompanying order filed on June 23, 2011. The judge concluded:

In the case at bar, [defendant] argues that his [p]etition should be granted because he received ineffective assistance of counsel. First, [defendant] contends that [plea counsel] failed to conduct adequate pretrial preparation. Specifically, [defendant] asserts that counsel failed to ascertain forensic evidence, find or explore potential witnesses, request surveillance videos, follow up with leads from any source, or investigate the victim.

 

First, it should be noted that this issue can be resolved by reference to the existing record, and therefore it should have been taken up on direct appeal. This [c]ourt previously addressed the issue of ineffective assistance of counsel during [defendant's] motion to retract his plea. During that hearing, [plea counsel] placed the extent of his investigation and his trial strategy on the record. As such, an evidentiary hearing would in no way aid this [c]ourt in determining whether [defendant's] counsel was ineffective.

Moreover, the record reflects that [plea] counsel did conduct an adequate pretrial investigation given the facts of this case. [Defendant] told counsel from the beginning that everything the victim said was true. In short, [defendant] admitted his guilt to his attorney. Based on this, counsel believed that it was in [defendant's] best interest to accept the plea. Moreover, [defendant] does not assert any facts that further investigation would reveal that would contradict the victim or make it reasonable to proceed to [trial]. [Defendant's] only factual assertion, that the video surveillance would show that [defendant] was not at the victim's apartment, is completely contradicted by [defendant's] admissions. Furthermore, [plea] counsel did not investigate the victim because her statement was already taken by police on December 17, 2007. As such, [defendant] did not show at the time of the motion, and cannot show now, that counsel was ineffective.

 

Second, [defendant] asserts that he was denied the opportunity to withdraw his plea under [Rule] 3:9-3(e). Again, this issue should have been taken up on direct appeal. This [c]ourt previously denied [defendant's] motion to withdraw his plea and placed its reason[s] for doing so on the record. Thus, an evidentiary hearing would not aid this [c]ourt in deciding the present petition.

Despite this issue being proper for appeal, [defendant] seems to take issue with [plea counsel's] testimony regarding communications he had with his client. However, pursuant to N.J.S.[A.] 2A:84A-20(2)(c), it was proper for the [c]ourt to allow [defendant's] attorney to discuss privileged attorney-client communications that occurred between the attorney and [defendant]. N.J.S.[A.] 2A:84A-20(2)(c) provides that the attorney-client privilege "shall not extend . . . [] to a communication relevant to an issue of breach of duty by the lawyer to his client, or by the client to his lawyer." Pursuant to this rule, a criminal defense attorney may freely testify about conversations that he had with his client about trial decisions if the client seeks to overturn his conviction on the ground of ineffective assistance of counsel. See State v. Bey, 161 N.J. 233, 296 (1999). Similarly, in the case at bar, [defendant] sought to withdraw his guilty plea under the theory of ineffective assistance of counsel. Thus, even though the testimony may have been damaging to [defendant], it was completely proper under N.J.S.[A.] 2A:84A-20(2)(c). Moreover, [defendant] explicitly waived the privilege on the record. [] As such, this [c]ourt properly denied the motion for the reasons on the record.

 

To be sure, [defendant] did not meet the Slater factors at the time of the motion and cannot meet them now. [Defendant] admits that he could not establish a colorable claim of innocence after the testimony brought out during the motion hearing, which this [c]ourt has already deemed proper. Further, [defendant's] letters to the victim apologizing for what he did to her, including screaming at her, touching her, and convincing her not to testify, belie any claim of innocence.

 

. . . .

 

Because [defendant] has not established that counsel was ineffective, we do not reach the second prong of the [Strickland]2test. However, for the sake of completeness, [defendant] also cannot show that but for [plea] counsel's ineffectiveness, he would not have pled guilty. To obtain relief under this prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, [559 U.S. 356], 130 S. Ct. 1473, 1485, [176 L. Ed. 2d 284, 295] (2010). In this case, it would not have been rational for [defendant] to proceed to trial based on the State's extremely strong case. The State's case included statements from a security guard at the hospital where the victim drove [defendant] so he could get psychiatric help, photographs of the rope and other evidence in the victim's car, pieces of the same rope in the victim's apartment, and the weapon used during the commission of the crime. In addition, the State has letters from [defendant] addressed to the victim apologizing for his actions and requesting that she refuse to testify. As such, it would not have been reasonable for [defendant] to proceed to [trial] given the facts of this case.

 

On this appeal, defendant presents the following arguments for our consideration:

Point One

 

THE PCR COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING

 

DEFENDANT'S CASE ESTABLISHING INEFFECTIVE ASSISTANCE OF COUNSEL

 

PLEA COUNSEL'S FAILURE TO INVESTIGATE AND PREPARE FOR TRIAL

 

[MOTION COUNSEL'S] REPRESENTATION OF DEFENDANT WITH REGARD TO THE MOTION TO RETRACT HIS PLEA

 

[MOTION COUNSEL'S] FAILURE TO FILE A NOTICE OF APPEAL

 

POINT TWO

 

THE PCR COURT ERRED IN ITS REVIEW OF THE DENIAL OF DEFENDANT'S MOTION TO RETRACT HIS GUILTY PLEA

 

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we affirm substantially for the reasons stated by Judge Theemling in his June 23, 2011 decision. We add these comments.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).

Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states, in pertinent part:

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

 

Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463. To successfully demonstrate the likelihood of succeeding under the Strickland-Fritz test, a petitioner "must do more than make bald assertions[,] . . . [and] must 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).

With those principles in mind, we turn to defendant's first argument that the court erred in denying the petition without conducting an evidentiary hearing. Here, we note that the judge had previously conducted an evidentiary hearing when he considered defendant's motion to withdraw his plea. During that motion hearing, the court specifically decided the very same claims that defendant thereafter raised in his petition with respect to ineffective assistance of plea counsel and the request to withdraw his guilty plea. In deciding the earlier motion, the judge stated "I actually did not see, based upon the briefing of this case, any real need for an evidentiary hearing, but just to make sure we had a complete record, I allowed it to take place so that the Appellate Division could see, plainly, all the issues."

In his PCR decision, the judge properly determined that these identical issues could be resolved by reference to the existing record from the prior evidentiary hearing. A defendant should receive an evidentiary hearing "[w]here asserted facts in support of [the] prima facie [PCR] claim[s] . . . are outside the record." State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006) (internal quotation marks omitted), certif. denied, 192 N.J. 66 (2007). Since the facts underlying defendant's claims of ineffective assistance of plea counsel, as well as the request to withdraw his guilty plea, were already part of the record from the evidentiary hearing on the prior motion, no further evidentiary hearing was necessary to resolve those PCR issues.

We similarly conclude that no additional evidentiary hearing was needed to resolve defendant's claims of ineffective assistance of motion counsel. Here, defendant's main contention is that motion counsel erred in calling plea counsel as a witness at the motion hearing. As defendant candidly concedes, plea counsel's testimony substantially undermined defendant's arguments for withdrawing his guilty plea, and expressly negated any colorable claim of defendant's innocence. The record reflects that defendant expressly agreed to waive the attorney-client privilege with respect to plea counsel's testimony at the hearing. "This privilege, moreover, does not extend to communications relevant to an ineffective-assistance-of-counsel claim." State v. Bey, supra, 161 N.J. at 296 (1999) (citing N.J.R.E. 504(2)(c)). Further, the State represents that even if motion counsel did not call plea counsel to testify at the hearing, the State would have. Accordingly, defendant has failed to establish that motion counsel's performance was deficient, or that the result would have been different but for counsel's alleged unprofessional errors.

Defendant's next argument, that the transcripts of the prior proceedings in this matter fail to demonstrate that defendant was advised by either the court or counsel of his right to appeal, is clearly without merit. Rather, the January 8, 2010 sentencing transcript clearly reflects that the judge advised defendant of both his right to appeal as well as his right to apply for PCR relief. Moreover, there is no competent evidence before us that defendant ever instructed counsel to file an appeal, or that counsel disregarded any such instruction.

Defendant's final argument is that the PCR court erred in its denial of defendant's motion to retract his guilty plea. This issue is governed by the four factors expressed by the Supreme Court in Slater, supra, 198 N.J. at 157-58:

[w]hether the defendant has asserted a colorable claim of innocence;

[t]he nature and strength of defendant's reasons for withdrawal;

[t]he existence of a plea bargain; and

 

[w]hether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

 

Courts must consider and balance all of the factors in deciding the motion for withdrawal of a guilty plea. Id. at 162. As no factor is mandatory, the fact that one may be missing "does not automatically disqualify or dictate relief." Ibid.

Here, as noted, Judge Theemling conducted an evidentiary hearing with respect to defendant's motion to withdraw his guilty plea. The judge properly weighed and considered each of the four Slater factors, and at the PCR hearing concluded that defendant "did not meet the Slater factors at the time of the motion and cannot meet them now." We discern no misapplication of discretion in the trial judge's denial of defendant's motion to withdraw his guilty plea. State v. Bellamy, 178 N.J. 127, 135 (2003) (noting the trial court's "broad discretion" to grant or deny a motion to withdraw a plea); see also Slater, supra, 198 N.J. at 156.

Affirmed.

1 State v. Slater, 198 N.J. 145 (2009).

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).