STATE OF NEW JERSEY v. WILFREDO PAGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0068-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILFREDO PAGAN, a/k/a WILFREDO

GONZALEZ,

Defendant-Appellant.

_______________________________

December 16, 2011

 

Submitted November 28, 2011 - Decided

 

Before Judges Parrillo and Grall.

 

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Indictment Nos. 03-05-0437 and 02-04-0420.

 

Joseph E. Krakora, Public Defender,

attorney for appellant (Michael C.

Wroblewski, Designated Counsel, on

the brief).

 

Camelia M. Valdes, Passaic County

Prosecutor, attorney for respondent

(Christopher W. Hsieh, Senior Assistant

Prosecutor, of counsel and on the brief).

 

PER CURIAM

This is an appeal from a denial of post-conviction relief. Pursuant to a plea agreement with the State, defendant Wilfredo Pagan pled guilty to charges in two multi-count indictments.

Specifically, defendant admitted that on December 13, 2002, he committed first-degree carjacking, N.J.S.A. 2C:15-2a(1); and third-degree terroristic threats, N.J.S.A. 2C:12-3. He entered that guilty plea in return for the State's agreement to: dismiss charges of first-degree robbery, N.J.S.A. 2C:15-1; and second-degree burglary, N.J.S.A. 2C:18-2; waive an extended term; and to recommend a twenty-two-year sentence on carjacking, subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, concurrent with his sentence for third-degree terroristic threats.

Defendant also acknowledged that he committed first-degree robbery on October 25, 2001. In that case, the State agreed to dismiss charges of second- and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(1), -1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a handgun after being convicted of disqualifying crimes, N.J.S.A. 2C:39-7. The State further agreed to recommend a twenty-year sentence for first-degree robbery to run concurrent with defendant's sentences for carjacking and terroristic threats.

On March 21, 2004, defendant was sentenced in accordance with his plea agreements, and judgments of conviction were filed on March 22, 2004. This court affirmed defendant's sentences after hearing oral argument on his appeal in accordance with Rule 2:9-11, and the Supreme Court denied his petition for certification. State v. Pagan, 192 N.J. 74 (2007).

Defendant filed this petition for post-conviction relief on December 10, 2008. He indicated that he would raise a claim of ineffective assistance of counsel based on the decision of his attorney, who knew defendant had brain damage and suffered from schizophrenia, to proceed with plea bargaining and sentencing without first obtaining an evaluation of his competency. In addition, defendant asserted he did not intend to take the car of the carjacking victim. Counsel was appointed and submitted a supplemental brief raising the same issues.

The issue of defendant's competence was addressed at the plea hearing. The pertinent portions of the colloquies between the judge and defense counsel and the judge and the defendant are as follows:

[The court addressing defendant:]

Q. Okay. You understand, Mr. Pagan, that if after you tell me what you did and I agree to accept that if I do that will end the prosecution of all of the matters in both of these indictments.

 

Do you understand that?

 

A. Yes.

 

Q. The only thing that would happen in these cases is we would then prepare for the sentencing event and you already know what the sentence is going to be.

 

Do you understand?

 

A. Yes.

 

Q. Okay. So what's happening in addition to your pleading guilty is you're ending the prosecution of this case and because you're doing that, you are giving up certain rights that you have.

 

. . . . [Paragraphs advising defendant of the trial rights he was waiving omitted.]

 

Now by ending the case, as I said at the beginning of this long question, by ending the case by pleading guilty, none of that's going to happen. So you're giving up your right to have that.

 

Do you understand that?

 

A. Yes.

 

Q. All right. Is there anything that I have said or anything that's written on these papers or anything at all about what you're doing now that you have any question at all about? Don't be afraid to ask, if you do.

 

A. No, nothing.

 

Q. Okay. Is there anything that in your mind is not right or out of order about what you're doing now?

 

. . . .

 

Now here's the point. You're being given the opportunity to tell me now if anything like that is involved. The law won't let you come back later on and make a claim like that.

Do you understand?

 

A. Yes.

 

Q. So if there's anything in your mind that's not right or out of order about what you're doing now, you should tell me about it now. You won't be allowed to do it later on.

 

Do you understand that?

 

A. Yes.

 

Q. Is there anything in your mind not right or out of order about what you're doing now?

 

A. No.

 

Q. Are you satisfied with the services you've received from [counsel]?

 

A. Yes.

 

Q. Yeah. All right.

 

THE COURT: [Counsel], do you represent to the [c]ourt that from everything you've experienced with Mr. Pagan, that he understands completely the information on his plea papers, understands the terms of his plea bargain, understands the nature of this proceeding and the consequences of his guilty plea and that he's offering the guilty pleas knowingly, voluntarily and intelligently?

 

[COUNSEL]: Yes, Your Honor.

 

. . . .

 

[Counsel addressing the judge at the close of plea proceeding.]: I have one last request. You did remand my client from last week to keep him to try to put this plea through. He's been at Ann Klein. He needs to return there. If you Honor would sign the order

 

THE COURT: Okay. I take it you have explored that aspect of the case?

 

[Counsel]: Yes, I did, Judge. Actually, there's an expert that was retained by the defense and

 

THE COURT: Okay.

 

[Counsel]: it has no bearing on the plea.

 

THE COURT: Okay. All right. Thank you, [counsel]. So I'll sign the paper to have Mr. Pagan taken back.

 

Defendant did not submit any medical or psychiatric records to support his post-conviction claim of ineffective assistance. At oral argument on defendant's petition for post-conviction relief, defendant's PCR counsel advised the court:

Your Honor, we're here today based on my client's motion for post-conviction relief. This matter was we were here once before to conference it, and I was going to have his medical records. He was going to be evaluated because one of his arguments is that he was not competent to plead guilty or be sentenced back when this happened because of various anxiety and depression medications. He suffers from has brain damage, schizophrenia, various, you know, mental-health issues that he suffers from and he felt that he wasn't able to understand or appreciate the nature of his plea.

However, the Public Defender's Office who assigned me the case was not willing to have an expert read his medical records and evaluate his competency for the date that he pled guilty. My request was denied, and based on that, I have not provided his medical records to either Your Honor or [the county prosecutor] because I don't know if that would be in his best interest. I'm not a medical expert. I have no idea.

 

So we're here now to just proceed with his certification [on] the arguments that he raised in his brief. And he is arguing exactly what I said. That he was of impaired mental state the day he pled guilty. His attorney knew that, which is indicated by the fact that his attorney had filed a motion to adjourn the matter for competency to be evaluated, but then nothing ever happened with that. His attorney had to have some kind of knowledge that something was happening to him that he could not understand what was going on. But then he was never evaluated.

 

He is arguing that he begged his attorney to have his competency evaluated. He refused. He feels that his attorney took advantage of his confused mental state and his limited ability to understand what was happening. That he was kind of manipulating him and pressuring him to plead guilty by telling him, hey, your sister [is] in the courtroom, if you don't plead guilty it's going to break her heart if you have to go to trial and you go to prison for, you know, 95 years or whatever it may have been. He said to him you'll lose that trial. You'll never see your sister again. So he was, in a sense, toying with his emotions. And based on that, my client felt he had no choice but to plead guilty.

 

He also begged his attorney to challenge the proofs of the carjacking as well. He said it was never his intention to take control or possession of the victim's car, and at most it may have been a robbery. That was it. But certainly not a carjacking. But his attorney failed to challenge any of the charges.

 

And based on these arguments, Your Honor, he feels that he was provided with ineffective legal counsel. And as a result, he was prejudiced. He is now serving a 22-year with 85 percent under the No Early Release Act prison term, and he feels that he should not be serving that much time. He feels that he was not given proper legal representation, and he's asking that he's still asking that he be evaluated and his medical records be looked at.

After considering the transcript of the plea proceeding, including the factual basis defendant provided, and the arguments presented on the petition, the judge gave the following reasons for denying post-conviction relief:

[Defendant] did factually testify that . . . while he was mixing Angel Dust and drugs, he recalls jumping in the car, grabbing the steering wheel and there was a crash. And he was asked if the vehicle was moving . . . and while it was moving you were trying to gain control of the vehicle. And the answer was yes.

 

It is rather clear that he did admit to the crime of carjacking, and there didn't seem to be any question of the other indictment, the robbery. And there was nothing in the record of the plea to indicate in any way or cast any doubt onto Mr. Pagan's competency to enter a an informed plea at the time and admits to the crimes.

And there was also a point at the very end of the plea where the [c]ourt asked, . . . "I assume, Mr. Pagan, that you were trying to take this lady's car and holding up this man to get money to buy drugs. Is that what you needed?" Answer, "Yes."

 

And it was there was a follow-up question, "So you knew what you were doing. You had to get the money to buy drugs for yourself[?]" Answer, "Right."

 

I really have no basis to find anything. This was a very informed plea that was taken, that the defendant was competent at the time. . . . Given that there were medical records, and I assume they are showing that Mr. Pagan may have had some mental-health issues at the time, without extrapolation by an expert to indicate that he had some type of problem either in the nature of insanity or diminished capacity at the time of the offense, or extrapolate to show that he was not competent to enter an informed plea at the time of the plea, I have absolutely no basis to set the plea aside and grant the application for post-conviction relief. So it will be denied.

Because the State does not argue that defendant's petition is time-barred, we address the merits. We agree with the judge's determination that defendant is not entitled to relief because he did not establish a prima facie case of deficient performance. In order to obtain relief from a conviction due to ineffective assistance of counsel, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)). The record of the plea proceeding discloses that the attorney representing defendant at the time had retained an expert to evaluate defendant's mental state but subsequently concluded that there was no issue relevant to the entry of a guilty plea. Furthermore, the record of the post-conviction relief hearing demonstrates that the attorney who represented defendant in that proceeding obtained defendant's medical records and saw nothing to which she could point to demonstrate that her predecessor erred. Thus, no professional error was shown, and in the absence of that showing the petition was properly denied.

Affirmed.