STATE OF NEW JERSEY v. ISRAEL NUNEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6154-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISRAEL NUNEZ,

Defendant-Appellant.

________________________________________________________________

November 23, 2010

Submitted November 3, 2010 - Decided

Before Judges Payne and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-01-0116.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

EdwardJ. De Fazio, Hudson County Prosecutor, attorneyfor respondent (Lynne G. Seborowski, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Israel Nunez appeals from an April 9, 2009 order that denied his petition for post-conviction relief (PCR). We reject defendant's contention that trial counsel rendered ineffective assistance by failing to adequately explain the nature and consequences of defendant's guilty plea and by failing to raise arguments at the time of sentencing that would have resulted in a more favorable sentence than the one the judge imposed. We affirm the order under review.

I.

In December 2005, a Hudson County grand jury charged defendant in a fifteen-count indictment with the attempted murder of a police officer (count one), two counts of second-degree attempted aggravated assault against two other police officers (counts four and five), second-degree eluding police (count two), second-degree aggravated assault for injuring a pedestrian while eluding police (count three), unlawful possession of a weapon (count six), possession of a weapon for an unlawful purpose (count seven), possession of hollow nose bullets (count eight), three counts of theft or receiving stolen property (counts ten, eleven and twelve), endangering the welfare of a child (count thirteen), resisting arrest (count fourteen) and certain persons not to possess weapons (count fifteen). The charges stemmed from an incident on August 26, 2005, when defendant deliberately swerved his vehicle into a police car in an attempt to strike the officer. In the course of that incident and while attempting to elude police, defendant injured a pedestrian while dragging her along the ground. The vehicle defendant was operating was stolen and he was in possession of a firearm even though a prior conviction rendered such possession unlawful.

In an unrelated complaint, defendant was charged with aggravated assault on a corrections officer at the Hudson County Correctional Facility (HCCF).

On March 9, 2006, after more than three months of discussion between the prosecutor and defense counsel, defendant entered a negotiated plea of guilty to four counts of the fifteen-count indictment and to the charge at the HCCF. In particular, he entered a guilty plea to second-degree aggravated assault (count one), which had been amended for purposes of the plea from the more serious charge of attempted murder. Defendant also pled guilty to another count of second-degree aggravated assault (count three), third-degree receiving stolen property (count twelve) and second-degree certain persons not to possess weapons (count fifteen). The indictable charge arising out of defendant's conduct at the HCCF was amended to the disorderly persons offense of obstructing a governmental function and defendant entered a plea of guilty to that reduced charge.

During the plea colloquy the judge specifically asked defendant if anyone had promised him anything, other than the agreement that had been placed on the record, to induce him to enter the guilty pleas. Defendant answered "no, sir." When asked if he had had sufficient time to review the discovery, police reports and possible defenses with his attorney, defendant answered "Absolutely." Defendant also agreed that he understood each of the questions on the plea form; and when the judge asked him if he was "satisfied with the representation of [his] attorney" defendant answered "Yes."

At that point, the judge asked defense counsel to elicit from his client a factual basis to support each of the guilty pleas. In the course of providing a factual basis, defendant answered his attorney's questions in a straightforward manner. He never gave the slightest indication that he was in any way dissatisfied with the legal advice he had received, that he was unsure about whether he should be pleading guilty, or that he was confused by any aspect of the plea agreement or the sentence. After defendant provided a factual basis and entered pleas of guilty, the judge specifically found that defendant's pleas of guilty were entered "freely and voluntarily" and that defendant "understood what he was doing, he waived his rights and understood the sentence that could be imposed pursuant to the plea agreement."

Defendant waived his right to be present at the time of sentencing on June 30, 2006. The judge found the existence of three aggravating factors, the risk defendant would commit a future offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). He found no mitigating factors. Pursuant to the plea agreement, the judge sentenced defendant on count one to a ten-year term of imprisonment, subject to the eighty-five percent parole ineligibility period required by N.J.S.A. 2C:43-7.2 (NERA); on count three, to an identical concurrent term; on count twelve, to a concurrent five-year term of imprisonment that contained no parole ineligibility period; and on count fifteen, to a consecutive ten-year term of imprisonment subject to a five-year period of parole ineligibility. On the disorderly persons offense, the judge imposed a consecutive six-month sentence. All of the sentences were ordered to be served concurrently to a violation of parole sentence defendant was then serving. The remaining eleven counts of the indictment were dismissed.

Defendant's appeal was heard on an Excessive Sentence Oral Argument calendar (ESOA), see R. 2:9-11, at which time defense counsel argued that the judge's finding of aggravating factors three, six and nine "was a very bare bone sentencing procedure" because the judge conducted "no . . . analysis" of the facts that would support each of those aggravating factors. Defense counsel did, however, acknowledge that defendant had "numerous priors" and that "this was apparently a very carefully [constructed] plea deal." We affirmed defendant's sentence, holding that the sentence was not manifestly excessive nor unduly punitive and did not constitute an abuse of discretion. State v. Nunez, No. A-5110-06 (App. Div. February 7, 2008).

In December 2008, defendant filed the PCR petition that is the subject of this appeal, asserting that trial counsel rendered ineffective assistance by failing to properly explain the penal consequences of the plea and by failing to raise any mitigating factors at sentencing.

On April 9, 2009, after hearing oral argument, Judge Theemling denied the petition, finding that defendant had not established a prima facie case of ineffective assistance of counsel or any other basis warranting either the vacating of defendant's guilty plea or an evidentiary hearing on defendant's ineffective assistance claim. In a written opinion, Judge Theemling concluded that defendant had presented nothing other than a "bald assertion" to support his contentions that trial counsel failed to properly explain the plea offer:

. . . It is not enough to make a bald assertion that one's trial counsel was ineffective. It seems, however, that a bald assertion is exactly what this court is confronted with today. [Defendant] claims that his trial counsel did not adequately explain the plea offer to him, however, he does not even attempt to explain what he understood the terms of the plea to be. Nor does he explain what trial counsel did, in fact, convey to him regarding the terms of the plea offer.

In effect, [defendant] claims that there was some sort of misunderstanding, or miscommunication between himself and trial counsel, but he does not endeavor to elucidate what he thought the terms of the plea to be, nor how trial counsel allegedly misinformed, under-informed, or failed to inform him of the terms of the plea agreement, i.e., (trial counsel led me to believe that I was going to get probation, but I ended up getting 10 years in state prison). In other words, [defendant] does not offer any specific facts that illustrate how trial counsel's performance was outside the range of professionally competent assistance. I find that [defendant] has failed to show that his attorney's performance was deficient. Therefore, [defendant] has failed to meet the first prong of the Strickland/Fritz test.

Next, the judge rejected defendant's contention that trial counsel rendered ineffective assistance by failing to argue for the existence of mitigating factors at sentencing. The judge concluded that even if trial counsel's decision not to argue mitigating factors did fall outside the wide range of professionally competent assistance, the sentence imposed was "relatively lenient" considering the violent crimes defendant committed, and therefore defendant failed to show how the result of the sentencing hearing would have been different even if counsel had argued for the existence of mitigating factors. The judge stated:

. . . [D]efendant fails to point out the fact that his attorney was in constant negotiations with the State in an attempt to procure the best plea deal possible. In effect, [defendant's] counsel did, indeed, advocate for a lesser sentence. . . .

Moreover, [defendant] does not point to any mitigating factors that would apply to this case; as such, he fails to demonstrate how trial counsel's performance was substandard. A petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. . . .

Even if trial counsel's decision not to argue mitigating factors did fall outside the wide range of professionally competent assistance, defendant fails to show how the results of the sentencing hearing would have been different. He fails to show how he was prejudiced. . . . [Defendant] received a relatively lenient sentence considering the extremely serious and violent nature of the crime he committed; this is especially evident when one considers that he was eligible for a discretionary extended term as a persistent offender.

[(Internal quotations and citations omitted).]

On appeal, defendant raises the following claims:

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIM.

A. Defendant's petition is not barred by R. 3:22-5.

B. Defendant established at least prima facie evidence of ineffective assistance of counsel.

C. At the very least, the trial court erred in rejecting defendant's ineffective assistance claim without conducting an evidentiary hearing.

II.

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed 2d. at 693. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.

We turn to Point I(A), in which defendant maintains that the judge erred by finding that his excessive sentence claim was barred by Rule 3:22-5. The Rule provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . . or in any appeal taken from such proceeding." R. 3:22-5.

Defendant's argument mischaracterizes Judge Theemling's decision. The judge did not apply the Rule 3:22-5 procedural bar in relation to defendant's claim that trial counsel failed to explain the details of the plea and failed to argue mitigating factors at sentencing. Instead, the judge applied the procedural bar of Rule 3:22-5 only in connection with defendant's claim that he had received an excessive sentence. The judge was correct in so doing. If an "issue is identical or substantially equivalent to [an] issue previously adjudicated on its merits," the issue will be precluded from consideration in the PCR context. State v. McQuaid, 147 N.J. 464, 484 (1997). Thus, the judge correctly determined that because we had already rejected defendant's excessive sentencing claims during the ESOA proceeding, defendant was barred from raising the identical claim of excessive sentence during the PCR proceeding. We reject this aspect of the claim defendant advances in Point I(A).

We turn to the remainder of Point I(A) and to Point I(B), which we consider jointly. Defendant maintains that because he established a prima facie case of ineffective assistance of counsel, the judge erred in refusing to conduct an evidentiary hearing. In particular, defendant maintains that because the judge did not afford him a hearing

[he] had little opportunity . . . to flesh out his contention, raised in his petition papers, that his trial counsel failed to adequately explain the nature and consequences of the plea; or to detail the manner in which counsel was deficient at sentencing. An evidentiary hearing, with testimony (however brief) from trial counsel and defendant on the specifics of these contentions, would have helped clarify these post-conviction contentions and ensure that defendant's ineffective assistance claim was fully and fairly adjudicated.

Defendant's argument misconceives and mischaracterizes the purpose of an evidentiary hearing. It is not the purpose of an evidentiary hearing to afford a defendant an opportunity to elicit testimony from trial counsel in the hopes that trial counsel might, through his testimony, furnish grounds for a claim of ineffective assistance. On the contrary, a hearing is not required unless the affidavits or other proofs submitted in support of a defendant's PCR petition establish -- before an evidentiary hearing is held -- that a prima facie case of ineffective assistance has been presented. State v. Preciose, 129 N.J. 451, 463 (1992). When no such showing is made, an evidentiary hearing is not required. Ibid.

Moreover, a defendant must do more than present "bald assertions" to establish an entitlement to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant is required to provide specific details establishing how counsel's performance was deficient. As Judge Theemling properly found, defendant's contentions fell far short of the threshold Cummings establishes for the granting of an evidentiary hearing. We agree with the judge's conclusion that defendant's vague and conclusory claim that trial counsel "did not adequately explain the plea offer to him" is wholly inadequate, as defendant makes not the slightest effort to explain what he himself thought the terms of the plea to be, nor how trial counsel, to use the judge's words, "allegedly misinformed, under-informed, or failed to inform him of the terms of the plea agreement."1 Without such specific statements, defendant's arguments were nothing more than the "bald assertions" Cummings deems inadequate. Ibid.

Our conclusion that defendant has failed to establish deficient performance in connection with explaining the plea is strengthened by our review of defendant's own statements during the plea colloquy. As we have noted, defendant assured the judge he had had sufficient time to review the discovery and possible defenses with his attorney, that he understood each of the questions on the plea form and that he was fully satisfied with the representation his attorney had provided. Moreover, when providing a factual basis for his pleas of guilty, defendant never once demonstrated any hesitation about pleading guilty, any confusion about any aspect of the plea agreement or sentence, nor did he give the slightest indication that he was in any way dissatisfied with the legal advice he had received in connection with his negotiated guilty plea.

We therefore affirm Judge Theemling's conclusion that defendant's arguments fell far short of entitling him to an evidentiary hearing on the claim that trial counsel rendered ineffective assistance by failing to explain the details of the plea agreement.

We reach the same conclusion concerning defendant's claim that trial counsel rendered ineffective assistance by failing to argue for the existence of mitigating factors at sentencing. Although the record does not contain a copy of the Pre-Sentence Report, see R. 3:21-2(a), defendant does not dispute the State's contention that his prior record included seven prior indictable convictions and five state prison terms, thereby making it more difficult for trial counsel to have obtained a reduced sentence even if counsel had advanced a mitigating factor or factors. Moreover, even at this late stage, defendant has failed to point to any mitigating factors that were supported by the record. In the absence of such a showing, defendant's claim that trial counsel rendered ineffective assistance at sentencing is again nothing more than the "bald assertion" that Cummings deems inadequate. We therefore reject defendant's contention that trial counsel's performance was deficient because he failed to raise any mitigating factors at sentencing.

Affirmed.2

1 We note that the plea agreement trial counsel negotiated was obviously extremely favorable to defendant, as it resulted in the dismissal of eleven of the fifteen counts of the indictment, the amendment of the attempted murder charge to aggravated assault, and the imposition of a sentence that was concurrent to the parole violation sentence defendant was then serving.

2 In a supplemental memorandum submitted pursuant to R. 2:6-11(d), defendant urges us to order a remand to the trial court for correction of the JOC to reflect that any mandatory periods of parole supervision be served concurrently not consecutively. See State v. Friedman, 413 N.J. Super. 480, 491 (App. Div.) (holding that the periods of parole supervision required by N.J.S.A. 2C:43-7.2 must be served concurrently even though the sentences are consecutive), certif. granted, ___ N.J. ___ (2010). Here, the two NERA sentences are concurrent, not consecutive, and therefore the mandate of Friedman is not applicable. We therefore decline to order a sentencing remand.