COURT STATE OF NEW JERSEY v. PEDRO QUEZADA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6301-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO QUEZADA, a/k/a DOGGY,

Defendant-Appellant.

_________________________________

December 6, 2010

Submitted November 4, 2010 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.

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

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Lynne G. Seborowski, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant pled guilty to conspiracy to commit murder on May 11, 2006, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3(a)(1) or (2), and was sentenced by the court on November 17, 2006, to a ten-year custodial sentence with an eighty-five percent No Early Release Act (NERA), N.J.S.A.2C:43-7.2, parole disqualifier. The court also ordered a five-year period of parole supervision upon defendant's release from prison. Defendant did not file a direct appeal. On August 25, 2009, defendant filed a petition for post-conviction relief (PCR) on the basis of ineffective assistance of counsel. Specifically, defendant claimed his trial counsel: (1) was not fully prepared for trial because he failed to properly investigate the allegations; and (2) failed to explain to him what defenses were available to him. The PCR court denied the motion without an evidentiary hearing and the present appeal was filed.

On appeal defendant raises the following points for our consideration:

POINT I

[] DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE MOTION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3.

We have considered the arguments advanced by defendant in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-2(e)(2), and affirm substantially for the reasons expressed by Judge Fredrick J. Theemling, Jr., in his well-reasoned written opinion of March 12, 2009. We add the following brief comments.

Post-conviction relief based upon ineffective assistance of counsel requires a petitioner to satisfy the two-pronged test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by New Jersey Courts in State v. Fritz, 105 N.J. 42, 58 (1987). Specifically, under the Strickland-Fritztest, a defendant seeking post-conviction relief based upon a claim of ineffective assistance of counsel must show: (1) that counsel's performance was deficient; and (2) that there exists "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J.451, 463-64 (1992) (quoting Strickland, supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed.2d at 698).

Moreover, where, as in this case, the claim of ineffective assistance of counsel is based upon a guilty plea, our Court has explained that a defendant must show that trial counsel's assistance was not "'"within the range of competence demanded of attorneys in criminal cases"' and '"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."'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

Defendant failed to establish either prong. As to his claim that trial counsel failed to properly investigate the allegations, the court properly rejected this claim as a bald assertion because defendant offered no facts to support this contention. State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999). Next, the court observed that defendant failed to point to any defenses that would have applied and therefore should have been asserted. Consequently, the court properly found that defendant failed to meet the first prong under Strickland.

Likewise, the court concluded that under Strickland's second prong, there was no basis to conclude that but for defense counsel's ineffective assistance of counsel, defendant would not have pled guilty. The court noted that defendant pled guilty on the same day a jury returned a guilty verdict against his co-defendant for first-degree conspiracy to commit murder, with the evidence in that trial pointing to defendant as the ringleader.

Finally, because Judge Theemling was also the same judge who presided over the entry of defendant's guilty plea, he recalled the circumstances surrounding the entry of the plea and found that defendant knowingly, intelligently and voluntarily waived his right to trial.

Affirmed.