STATE OF NEW JERSEY v. ANTHONY J. FRANKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0659-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY J. FRANKE,

Defendant-Appellant.

___________________________________

March 29, 2011

Submitted February 16, 2011 - Decided

Before Judges Gilroy and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation Nos. 07-01-0237 and 06-10-3461.

Yvonne Smith Segars, Public Defender, attorneyfor appellant (Jeffrey R. Jablonski, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Franke appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

On September 4, 2006, the police arrested defendant and charged him with burglary, theft, and resisting arrest after he broke into a garage, stole items from a car, and attempted to elude police officers. On October 18, 2006, defendant pleaded guilty to Accusation No. 06-10-3461 charging him with third-degree burglary, N.J.S.A. 2C:18-2, in exchange for the State recommending probation conditioned on defendant serving 180 days in jail or in a work-release program, and agreeing to defendant's release from jail on his own recognizance pending sentencing. Before he was sentenced on the burglary charge, defendant committed another crime.

On December 22, 2006, defendant stole drugs from a CVS pharmacy and was arrested and charged with robbery, shoplifting, criminal mischief, and simple assault. As the result of committing another crime, defendant re-negotiated his burglary plea. On January 18, 2007, he pleaded guilty to third-degree burglary in exchange for the State recommending a three-year term of imprisonment. Defendant also pleaded guilty to Accusation No. 07-01-237 charging him with third-degree theft of property from the person, N.J.S.A. 2C:20-3a and 2C:20-2b(2)(d), for the CVS theft. In exchange for that plea and defendant's agreement not to appeal, the State recommended a four-year term of imprisonment with eighteen months of parole ineligibility.

Defendant acknowledged during the plea hearing that he had enough time to talk with his attorney, his attorney answered all of his questions, and he was satisfied with the attorney's services. On February 2, 2007, the court sentenced defendant in accordance with the plea agreement and imposed appropriate fines and penalties.

Defendant did not file a direct appeal, but instead filed a PCR petition, alleging he was wrongfully accused of theft from the person "due to the [f]act the person who stopped me was not employed [a]t the CVS I was shoplifting [a]t." The court assigned counsel to defendant and he subsequently amended the petition, alleging that trial counsel was ineffective for failing to have him admitted into a drug court program and for failing to file a motion to suppress evidence from the burglary.

In support of his petition, defendant filed a certification that his attorney met with him on the day of each plea hearing and said he had secured a plea agreement that defendant should accept, but did not discuss the case, drug court, or a suppression motion.1 Defendant also certified to his long history of drug abuse and explained that he did not disclose his drug history before sentencing because he thought the court would hold it against him. In further support of defendant's petition, PCR counsel filed a thirty-two page brief and a sixty-four page appendix.

The trial court gave defendant the opportunity to present evidence at the PCR hearing, but defendant declined. The court denied the PCR petition. After explaining that defendant's claims were procedurally barred because they could have been raised on direct appeal pursuant to Rule 3:22-3, the court decided the claims on the merits. The court determined that defendant admitted to shoplifting from another person; failed to demonstrate a prima facie case that his suppression motion would have been successful; and would not have qualified for drug court because of his prior criminal history and because of the robbery charge resulting from the CVS pharmacy theft. More significantly, defendant never told anyone, including his attorney, about his drug history or that he was using drugs when he committed the crimes.

This appeal followed. Defendant, represented by new counsel, raises the following point for our consideration:

Since Mr. Franke was denied the effective assistance of post-conviction relief (PCR) CounSEL, the matter should be remanded for a new PCR hearing, and new counsel assigned.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

"To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." State v. DeFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (internal quotations and citations omitted).

Defendant first contends the petition filed by his PCR counsel "lacked substance, and did not present all available issues collateral to the proceeding including, the opportunity to testify when specifically questioned (and perhaps even encouraged) by [the trial judge] to do so." Defendant adds that PCR counsel "failed to offer the necessary evidence by any means available including affidavits, certification, or an amended petition advancing additional legal grounds for relief at least by way of an offer of proof." Notably, defendant does not identify or explain the additional collateral issues or necessary evidence supporting "additional legal grounds for relief."

Defendant argues "the fact that a plea was entered without a modicum of consultation, examination, or investigation, should have been established through testimony." However, defendant raised this issue in his certification and his PCR attorney raised it in the brief he filed with the trial court. More significantly, this conclusory assertion does not identify what facts additional examination or investigation would have revealed, or how additional examination or investigation would have resulted in a different outcome.

Defendant's conclusory statements do not establish that PCR counsel was ineffective. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (explaining that "a petitioner must do more than make bald assertions" to establish a prima facie claim), certif. denied, 162 N.J. 199 (1999). Defendant does not specifically explain how anything PCR counsel did or failed to do would have resulted in his going to trial instead of pleading guilty. Defendant has not satisfied either prong of Strickland.

Affirmed.

1 One attorney appeared with defendant at the first plea hearing and at sentencing, but a different attorney from the same office appeared with defendant at the second plea hearing.