STATE OF NEW JERSEY v. GEORGE SANTAMARIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3715-03T42254-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE SANTAMARIA,

Defendant-Appellant.

_____________________________

 

Submitted December 21, 2005 - Decided February 15, 2006

Before Judges Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,

998-03-0698D.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, George Santamaria, was tried in absentia, before a jury, on September 17, 1998, and found guilty of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5). The trial court on December 22 1998, imposed sentence on the convictions as follows: a twenty year term of incarceration for first-degree robbery (count one); a ten year consecutive term for the second-degree burglary (count three); a five year concurrent term for the fourth-degree unlawful possession of a weapon (count seven); and an eighteen month consecutive term for the aggravated assault upon a police officer (count ten). The other counts of the indictment were merged or dismissed. The sentence included a twenty-two year period of parole eligibility and the assessment of fines and penalties.

On direct appeal, we affirmed defendant's conviction and sentence. State v. Santamaria, No. A-4846-98 (App. Div. July 5, 2000). The New Jersey Supreme Court denied defendant's petition for certification on October 17, 2000. State v. Santamaria, 165 N.J. 605 (2000).

Defendant filed a motion for post-conviction relief arguing that trial counsel failed to effectively represent him during plea bargaining to assure he fully understood the consequences of declining the plea; employ mental health experts to assess his capacity at the time of his confession; and object to instances of alleged prosecutorial misconduct. The motion was denied on December 2, 2004 after argument without an evidentiary hearing.

Defendant raises the following issues on appeal:

POINT I

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO ENSURE THE DEFENDANT POSSESSED THE MENTAL CAPACITY TO UNDERSTAND HIS PLEA OFFER AND POSSIBLE PENAL CONSEQUENCES OF TRIAL[.]

POINT II

THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON

THE ISSUE OF TRIAL COUNSEL'S FAILURE TO PROVIDE

ADEQUATE REPRESENTATION DURING THE PLEA BARGAINING

STAGE OF THE PROCEEDINGS[.]

POINT III

THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE REQUIRING

CORRECTION BECAUSE THE SENTENCING JUDGE IMPOSED A

GREATER THAN PRESUMPTIVE TERM ON FACTS NOT FOUND BY A

JURY[.]

Appellate review of a decision for post-conviction relief is based on the findings and conclusions of the trial court. R. 3:22-11; R. 2:2-1(a)(3). While we afford deference to a trial court's factual findings when supported by adequate, substantial and credible evidence, we are not bound by and give no deference to the trial court's legal conclusions. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, ___U.S.___, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

After careful review of the record in light of defendant's contentions and the applicable law, we are satisfied the arguments expressed in Point One and Point Two are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Connor in his oral decision issued November 22, 2004. We add only the following.

Defendant suggests an evidentiary hearing is required on counsel's failure to provide adequate representation during the plea bargain stages of the proceeding. Ordinarily, a trial court should grant an evidentiary hearing to resolve ineffective-assistance-of-counsel claims once a defendant presents a prima facie case in support of post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1992). A prima facie claim of ineffective assistance of counsel requires the allegation of 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). Bald assertions are insufficient to establish a prima facie claim. Ibid.

To establish a prima facie case of ineffective assistance of counsel, a defendant must: (1) demonstrate that counsel's performance was so deficient that he "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) establish that the attorney's deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42 (1987). Under Strickland, supra, reviewing courts are instructed to be "highly deferential," and to indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)); see also Harris, supra, 181 N.J. at 431.

In this matter, defendant fails to demonstrate defense counsel's performance was so deficient that, but for her alleged errors, the result of the proceedings would have been different. See State v. Fritz, 105 N.J. 42, 52 (1987)(citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Thus, based on the facts set forth in defendant's papers, we conclude that he failed to establish a prima facie case of ineffective assistance of counsel obviating the need for an evidentiary hearing.

We turn to defendant's sentence. Defendant argues the sentence imposed was "illegal," in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). He seeks remand and resentencing.

Following, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), our Supreme Court held:

Under New Jersey's Code of Criminal Justice, a defendant cannot be sentenced to a period of imprisonment greater than the presumptive term for the crime he committed, unless the judge finds one or more statutory aggravating factors. See N.J.S.A. 2C:44-1(f)(1). The Code does not require that a judicial finding of an aggravating factor be encompassed by the jury verdict or that it be based on an admission by the defendant at a plea hearing. We now hold that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee. To bring the Code into compliance with the Sixth Amendment in a way that the Legislature would have intended, we are compelled to eliminate presumptive terms from the sentencing process. Hereafter, without reference to presumptive terms, judges will sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors.

[State v. Natale, 184 N.J. 458, 466 (2005).]

Recognizing this decision presented a "new rule of law" compelled by Blakely, the Court determined the degree of retroactivity to be applied, mandating "[p]ipeline retroactivity --applying [the] holding to defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised Blakely claims at trial or on direct appeal." Defendant was not "in the pipeline," as his direct appeal was concluded in 2000. Moreover, defendant did not raise a Blakely issue in his direct appeal. Accordingly, defendant's assertion that the sentence should be vacated is without merit.

 
Affirmed.

(continued)

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February 15, 2006