STATE OF NEW JERSEY v. ISRAEL MARTINEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2433-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISRAEL MARTINEZ,

Defendant-Appellant.

_____________________________________________________________

November 3, 2011

 

Submitted October 26, 2011 - Decided

Before Judges Graves and Harris.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

08-07-0584.

Joseph E. Krakora, Public Defender, attorney

for appellant (Charles H. Landesman, Designated

Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for

respondent (Brian Uzdavinis, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Israel Martinez appeals from an order dated June 22, 2010, denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse and remand for an evidentiary hearing.

On November 17, 2008, Martinez pled guilty to first-degree employing a juvenile in the commission of a crime in violation of N.J.S.A. 2C:24-9.1 In return for the plea, the State agreed to dismiss other charges and to recommend a twelve-year prison term without any period of parole ineligibility. However, the court indicated it would not impose more than a ten-year term.

The same attorney who negotiated the plea represented defendant when he was sentenced, but a different attorney represented defendant when he entered his plea. At sentencing, defense counsel advised the court that she had spoken with the prosecuting attorney regarding a joint motion for reconsideration of defendant's sentence:

[DEFENSE COUNSEL]: The plea offer calls for [defendant] to receive a 10-year State Prison sentence with no parole stip. Just so that the defendant is clear and it's . . . on the record, we are going to sentence him today to the 10 flat, but it's in anticipation of a joint motion for reconsideration of sentence at a later date, if it's acceptable to the State, basically.

 

THE COURT: [Prosecutor], is that true?

 

[PROSECUTOR]: This case continues to be investigated. Should circumstances change, the State will join with [defense counsel] in a motion to reconsider.

 

THE COURT: Is that to address the mental health issue?

 

[PROSECUTOR]: No.

 

THE COURT: Okay.

 

[PROSECUTOR]: There are other circumstances involved here that we prefer not to put on the record.

 

THE COURT: Fair enough. Okay.

 

Defendant was thirty-seven years old when he was sentenced on February 20, 2009. The court did not identify any mitigating circumstances but found three aggravating circumstances: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of his prior criminal record and the seriousness of the offenses he committed, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-2(a)(9). Nevertheless, the court imposed a ten-year prison term, which is the minimum sentence for a first-degree offense.

Defendant did not file a direct appeal. Instead, he filed a petition for PCR dated October 8, 2009. In a supporting certification, defendant stated he met with his original attorney (the attorney who negotiated the plea and represented him at sentencing) "approximately five or six times," and she repeatedly assured him that he would "end up with seven years in prison." According to defendant, his original attorney told him if he pled guilty and was sentenced to ten years in prison, he would be brought back to court and resentenced to seven years in prison. Defendant also indicated he was represented by a different attorney at his plea hearing, who only spoke to him on the day of the plea, and defendant stated he would not have entered the plea if he was not going to be resentenced to a seven-year term.

Defendant's PCR counsel argued that an evidentiary hearing was necessary to determine what defendant's original attorney told him prior to the entry of his plea. However, the court determined defendant's claims were "too vague and speculative" to warrant an evidentiary hearing, and the court denied defendant's petition without a hearing. An order memorializing the judge's decision was entered on June 22, 2010.

In this appeal from the June 22, 2010 order, defendant contends that (1) his guilty plea should be vacated because it was not made knowingly and voluntarily; (2) his attorney was ineffective for failing to file a motion for reconsideration of his sentence; and (3) it was an abuse of discretion for the court to deny his request for an evidentiary hearing. Based on our review of the record, we conclude the trial court erred in failing to conduct an evidentiary hearing to explore defendant's allegations.

Trial courts should ordinarily hold evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim and the facts supporting the claim are not part of the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie claim of ineffective assistance of counsel, a defendant must establish a reasonable likelihood of success under the Strickland/Fritz test.2 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-prong test, a defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In the context of a guilty plea, the second part of the Strickland/Fritz test the prejudice prong focuses on whether defense counsel's performance "affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1994); accord State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

In the present matter, defendant certified his attorney assured him he would "end up with seven years in prison." In addition, he stated he would not have pled guilty if he knew he was not going to be resentenced to a seven-year term. Moreover, the sentencing transcript confirms that the prosecuting attorney and defendant's attorney discussed the possibility of a "joint motion for reconsideration of defendant's sentence at a later date."3 Under these circumstances, we conclude that defendant's PCR petition should not have been denied without affording defendant an opportunity to present testimony and evidence in support of his assertions. See State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998) (holding that an evidentiary hearing was required to fully examine the nature and extent of attorney-client conversations concerning a plea agreement), certif. denied, 158 N.J. 72 (1999).

Reversed and remanded. Jurisdiction is not retained.

1 Defendant admitted that he asked a sixteen-year-old juvenile to set fire to an automobile that was destroyed.

2 The two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

3 Rule 3:21-10(b) provides that an order may be entered at any time "changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney."