STATE OF NEW JERSEY v. MICHAEL E. DEC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6265-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL E. DEC, a/k/a

MICHAEL EDWARD DEC, a/k/a

MICHAEL H. DEC,

Defendant-Appellant.

________________________________________________________________

December 13, 2011

Argued October 26, 2011 - Decided

Before Judges Graves and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-01786-A.

Patrick P. Toscano, Jr. argued the cause for appellant.

Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief; Kimberly L. Donnelly, Law Intern, on the brief).

PER CURIAM

Defendant Michael E. Dec appeals the trial court's August 23, 2010 order denying his motion to retract his guilty plea and rejecting his petition for post-conviction relief (PCR) without an evidentiary hearing. On December 11, 2008, defendant pled guilty to Union County Accusation 08-12-01786 charging him with second-degree vehicular homicide. N.J.S.A. 2C:11-5. He also entered a guilty plea to a motor vehicle summons charging him with driving while intoxicated. N.J.S.A. 39:4-50. As part of the State's plea agreement, the second-degree charges of leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1, and eluding the police, N.J.S.A. 2C:29-2(b), as well as the motor vehicle violations of leaving the scene of an accident, N.J.S.A. 39:4-129,and reckless driving, N.J.S.A. 39:4-96, were dismissed by the State after sentencing. The State agreed that defendant would be sentenced within the third-degree range. Pursuant to the plea agreement, defendant was sentenced on February 6, 2009, to four years in prison subject to the eighty-five percent period of parole ineligibility specified in the No Early Release Act (NERA), N.J.S.A. 2c:43-7.2.

Defendant claims his attorney was ineffective in not allowing him to review every page of the State's discovery in a timely manner. He indicates he would have proceeded to trial on all charges had he been given the assistance of competent counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The State's documentary evidence reveals the following facts. On April 17, 2007, at 2:19 a.m., while driving southbound on Routes 1 & 9 in Elizabeth, defendant's 2001 silver Mercury Grand Marquis struck and killed the victim. A passenger in a nearby car who witnessed the accident told the police that defendant was traveling over fifty miles per hour and neither attempted to avoid the pedestrian nor stopped after hitting her.

Defendant fled the scene with the victim's malt liquor can stuck in his car's grill. He sped the wrong way down a one-way street. Instead of stopping when police activated their lights and sirens, he accelerated. Defendant's car had significant front-end damage, the windshield was shattered and the passenger side airbag was deployed. After his arrest, defendant had a blood alcohol content of 0.136%.

The victim was crossing in a crosswalk, but against the light, with a malt liquor can in her hand. The victim had a blood alcohol content of 0.075% and trace amounts of cocaine in her system. According to the autopsy report, a radio with earphones was in her possession when she died.

At his guilty plea, defendant testified under oath as follows:

Q Mr. Dec, I direct your attention to April 17,'08, in the City of Elizabeth, and I ask you to recall that evening.

A Yes.

Q You were operating a motor vehicle?

A Yes.

Q You were coming back from being at a bar with some friends?

A Yes.

Q You had consumed an alcoholic beverage?

A Yes.

Q And you agree with me that the alcohol reading blood test that was done on you was well over the legal limit, a .13. Is that correct?

A Yes.

Q And you had how many drinks, would you say, roughly?

A Six to seven.

Q And you agree with me now that had an effect on your ability to operate a motor vehicle?

A Yes.

Q And when you were on Route 1 at like 1 a.m., 1:30 a.m., you were operating the motor vehicle?

A Yes.

Q You were going somewhat fast?

A Yes.

Q And, unfortunately, someone was trying to cross the road and you struck that individual and now know that the individual is deceased. Is that correct?

A Yes.

[COUNSEL]: I think I've covered it, Judge.

BY THE COURT:

Q And the type of alcohol you were consuming was beer or hard alcohol? What was it?

A A mixture of both.

Q Okay.

A Two beers and like the rest was --

Q And you agree that the person died after you struck him with your car and you're the cause of that death?

. . . .

A Yes.

On appeal defendant raises the following argument,

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT ANY RELIEF ON MICHAEL DEC'S MOTION TO WITHDRAW HIS GUILTY PLEA OR FOR POST-CONVICTION RELIEF.

Both defendant's motion to withdraw his guilty plea and his PCR application rest on a claim that he was not shown important parts of the State's discovery until the day he was sentenced. Although defendant does not precisely identify the documents at issue, his counsel indicates that they include evidence of trace amounts of drugs and alcohol in the victim's system and that she may have been listening to music as she crossed the roadway. Notably, however, the victim's can of malt liquor lodged in the grill of defendant's car upon impact. Thus, he knew before sentencing that the victim was drinking on the night of the incident. Moreover, due to the circumstances surrounding the incident, he was equally aware the victim did not have the right of way in crossing the roadway when she was hit.

We review a judge's decision on a motion to vacate a guilty plea under an abuse of discretion standard and should reverse the court's decision only if it is "clearly erroneous." State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). "A denial of a motion to vacate a plea is 'clearly erroneous' if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." Id. at 100 (citing State v. Slater, 198 N.J. 145, 164 (2009)).

Pursuant to Rule 3:21-1, defendant's motion to withdraw his guilty plea after sentencing should be granted only "to correct a manifest injustice." In State v. Slater, 198 N.J. 145 (2009), the Court identified four factors which must be weighed when considering a motion to withdraw a plea. The factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58.

The motion judge determined that while defendant might now believe that he had a viable defense to the vehicular homicide charge, he did not have a colorable claim of innocence. The motion judge also concluded that any evidence not shown to defendant until immediately prior to sentencing was insignificant in light of the other known evidence and the favorable pre-indictment plea agreement he was offered.1 The judge also found the State would suffer unfair prejudice if the guilty plea is withdrawn. He noted that because it was an "early plea," the State ceased investigating and the "black box" from defendant's car was not recovered. Upon review, we find that the motion judge did not abuse his discretion in finding that all four Slater factors favored the State and denial of defendant's motion to withdraw his guilty plea was therefore warranted.

Under the Sixth Amendment of the United States Constitution, a person accused of a crime 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. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; 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. Moreover, the Supreme Court has explained that "every effort [must] be made to eliminate the distorting effects of hindsight," Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694, and "strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 315 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Counsel negotiated a favorable plea for defendant and discussed with him the most significant aspects of his case before defendant pled guilty. At the plea hearing, defendant testified that he was given "enough time to talk about the case in detail" with his counsel, all of his questions had been answered, the law and facts were explained to him, and he was "satisfied with the work [counsel]'s done."

Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a "formidable barrier" which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977). That is so because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid.; State v. DiFrisco, 137 N.J. 434, 452 (1994) (DiFrisco II), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

[State v. Simon, 161 N.J. 416, 444 (1999).]

Thus, the motion judge did not abuse his discretion in rejecting defendant's PCR application.

Nor did the motion judge abuse his discretion in not affording defendant an evidentiary hearing on his ineffective assistance of counsel claim. Rule 3:22-1 grants trial courts discretion as to whether or not to hold an evidentiary hearing. "Trial courts ordinarily should grant evidentiary hearings to resolve ineffective assistance claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. In determining whether defendant has established a prima facie case, the court should construe the facts in the light most favorable to the defendant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). In deciding the motion, the judge assumed the facts were as defendant maintained and found an evidentiary hearing was unnecessary, which implicitly suggests that, in his view, defendant failed to state a prima facie claim. We agree and find no abuse of discretion.

Affirmed.

1 The charge of leaving the scene of a fatal accident, which was dismissed as part of the plea agreement, is a second-degree crime. N.J.S.A. 2C:11-5.1. A sentence imposed under that statute must be consecutive to any other sentence imposed for the incident. Id.