STATE OF NEW JERSEY v. CHRISTOPHER VIDETTO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2054-05T42054-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER VIDETTO,

Defendant-Appellant.

______________________________________________________________

 

Submitted October 24, 2006 - Decided November 8, 2006

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Ind. No. 97-08-2284.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Donald T. Thelander, Assistant

Deputy Public Defender, of counsel and on the

brief).

James P. Lynch, Acting Camden County Prosecutor,

attorney for respondent (Nancy P. Scharff,

Acting Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Christopher Videtto appeals from an order of December 2, 2005, denying his petition for post-conviction relief (PCR). Defendant claims he would not have entered a guilty plea if his attorney had advised him that an unidentified witness for the State was unavailable to testify on the date his case was scheduled for trial. After reviewing the record in light of defendant's contentions, we affirm.

In a one-count indictment (Ind. No. 97-08-2284), defendant was charged with third-degree burglary of an automobile, N.J.S.A. 2C:18-2. The court scheduled the case for trial on August 3, 1998, but defendant entered a guilty plea on July 27, 1998. During the plea hearing, defendant testified as follows:

Q. Well, first of all, the date of the offense is alleged to be August 3, 1996 in Gloucester City. Is that correct?

A. Yes sir.

Q. What did you do?

A. I entered a vehicle, an unlocked vehicle and I rummaged around inside the vehicle with an intent to deprive a person of some things that might have been inside.

Q. So, you were looking for something to steal?

A. Yes sir.

Q. And when you broke into the vehicle, that's -- or when [you] entered the vehicle, you didn't have any authority to get into that vehicle, did you?

A. No, I did not, sir.

Q. So, you were entering against, obviously, the will of any owner or licensee of that vehicle, is that correct?

A. Yes sir.

Q. And the intent at that time was to take something that didn't belong to you.

A. Yes sir.

On November 13, 1998, defendant was sentenced to a three-year prison term, to be served concurrently with the sentence he was serving in Pennsylvania. Statutory assessments and penalties were also imposed. The trial court's statement of reasons for the sentence included the following:

I reviewed Mr. Videtto's present pre-sentence report. He's a recidivist, having been convicted of at least seven crimes of burglary, including the present offense, as well as the crimes of theft, simple assault, and resisting arrest. He's been incarcerated in New Jersey [S]tate prison, he has unsuccessfully been involved with inpatient drug rehabilitation programs on two occasions.

He's violated probation at least twice and he's been sentenced to 11 to 23 months in county prison, four years in New Jersey [S]tate prison, three years in New Jersey State prison, five years in New Jersey [S]tate prison, one without parole eligibility, and 15 to 30 months in county jail as recently as September 15, 1997 in Darby, Pennsylvania.

He is presently serving a sentence in Delaware County prison. He has failed to avail himself of the opportunity of drug rehabilitation. Punishment through incarceration appears to be the only possible means of disciplining the defendant in the recognition that he must abide by the rules of society and respect the property of others.

On December 2, 2005, following an evidentiary hearing in connection with defendant's PCR petition, the trial court rejected defendant's argument that his attorney was ineffective for failing to advise him prior to his guilty plea that the State would be unable to proceed to trial on August 3, 1998, because of an unavailable witness.

[T]he motion is denied for the following reasons.

One, because defendant first says I would . . . not have pled guilty if I had known the witness was unavailable. I don't find that to be credible.

. . . .

He didn't let anybody know that he didn't want to be sentenced apparently, and he . . . never brought it up in his prior PCRs himself.

I also find that the defendant has failed to meet his burden of proof in that he has not proven to me that a witness was unavailable permanently at the time, or even unavailable.

. . . .

Obviously, if there was a witness unavailable, if the witness was only unavailable on a particular day, or if it was a witness who was not a material witness, it makes a big difference in this case.

A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). New Jersey has adopted the standards set out in Strickland.

[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).]

To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test. First, he must demonstrate that his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

During the court proceedings on December 2, 2005, defendant conceded he pled guilty "pretty much just to have it all done and over with." He also acknowledged that the prospect of receiving a concurrent sentence was an important consideration. Indeed, because of defendant's prior criminal history, the State could have sought an extended term of imprisonment on persistent offender grounds. N.J.S.A. 2C:44-3(a).

We affirm because the record clearly supports the trial court's determination that defendant failed to satisfy either the deficient performance or the prejudice prong of the Strickland/Fritz test.

Affirmed.

 

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A-2054-05T4

November 8, 2006