STATE OF NEW JERSEY v. HANDY MICHEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2432-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HANDY MICHEL,

Defendant-Appellant.

________________________________________________________________

December 7, 2012

Submitted September 27, 2012 - Decided

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-11-1250.

Joseph E. Krakora, Public Defender, attorney for appellant (Jay Bernstein, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Handy Michel appeals from the order denying his petition for post-conviction relief (PCR) without a plenary hearing. He argues that his counsel was ineffective in not fully explaining the parameters of the plea agreement negotiated with the State. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On May 23, 2002, defendant, with the assistance of a court-appointed Spanish interpreter, pled guilty to eight counts of five different Passaic County Indictments. On Indictment No. 01-11-1250, relating to possession of cocaine on August 28, 2001 with four co-defendants, defendant entered a guilty plea to second-degree possession of more than one-half ounce with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2) and N.J.S.A. 2C:2-6 (count two); third-degree possession of cocaine with the intent to distribute within a school zone, N.J.S.A. 2C:35-7, -5(a) and N.J.S.A. 2C:2-6 (count three); and second-degree possession of cocaine with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1, -5(a) and N.J.S.A. 2C:2-6 (count four). On Indictment No. 01-12-1351, relating to possession of cocaine with two co-defendants on October 2, 2001, he pled guilty to third-degree possession with the intent to distribute within a school zone, N.J.S.A. 2C:35-7, -5(a) and N.J.S.A. 2C:2-6 (count three); and second-degree possession with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1, -5(a) and N.J.S.A. 2C:2-6 (count four). On Indictment No. 02-01-0062, relating to his sole possession of cocaine on September 21, 2001, he pled guilty to third-degree possession with the intent to distribute within a school zone, N.J.S.A. 2C:35-7 and -5(a) (count three). The other counts of these indictments were dismissed by the State. Defendant also pled guilty to two one-count indictments, Nos. 02-04-0529 and 02-05-0594, each charging fourth-degree contempt for violating a drug restraining order, N.J.S.A. 2C:29-9(a). Defendant was promised that he would not receive a sentence in excess of nine years in prison with a parole ineligibility of four years.

The plea form, signed by defendant1 after he reviewed it with his attorney and a Spanish interpreter, indicated that he was "to cooperate with the State in the [p]rosecution of [the] co defendant[s.]" At the plea hearing, Judge Marilyn C. Clark repeated his sentence exposure and clarified that the plea agreement anticipated his cooperation. The prosecutor also made clear that the plea agreement factored in defendant s cooperation in testifying against his co-defendants at the plea hearing. The prosecutor indicated that defendant's additional cooperation could result in a further diminution of his sentence exposure. At the end of the plea hearing, defendant implicated his co-defendants in sworn testimony.

Through an interpreter, defendant stated that he was a citizen of the Dominican Republic, had been in the country legally for eight years and had completed the eleventh grade at Kennedy High School. He also stated that he "understood everything." Judge Clark advised defendant that "there is a strong likelihood that you [will] be deported after any prison sentence; do you understand that?" Defendant stated that he understood.

Defendant did not appear at the scheduled sentencing on September 27, 2002. On April 5, 2007, after being arrested on new charges, defendant was sentenced. He told the judge at the hearing:

The reason why I didn t come to court [in September 2002] was because I was fearing for my life. A co-defendant of mine was killed. And I was actually very scared and I started using drugs. I really was so far gone with myself I really didn t know what I was doing.

Defendant was sentenced pursuant to the plea agreement to an aggregate term of nine years in prison with a mandatory term of four years of parole ineligibility. He appealed the length of the sentence utilizing the Excessive Sentence Oral Argument program. We affirmed the sentence by order of August 18, 2009. Defendant then filed a timely petition for PCR.

On appeal defense counsel raises the following issues:

POINT I: THE FAILURE OF THE DEFENSE ATTORNEY TO COMMUNICATE, EXPLAIN, AND CONFIRM DEFENDANT'S UNDERSTANDING OF THE "NINE YEAR/FOUR YEAR PAROLE INELIGIBILITY" PLEA DEAL, QUALIFIES AS INEFFECIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ STANDARD, DENYING DEFENDANT THE BASIC SIXTH AMENDMENT RIGHT TO ADEQUATE COUNSEL, GROUNDED IN THE UNITED STATES AND THE NEW JERSEY CONSTITUTION, AND MATERIALLY EFFECTING THE PLEA DEAL, THE OUTCOME OF THE CASE, AND DEFENDANT'S RIGHT TO A TRIAL.

POINT II: THE PLEA AGREEMENT (FORM AND TRANSCRIPT) MUST BE OVERTURNED AS DEFECTIVE, AS THE DEFENSE COUNSEL AT TRIAL, FAILED TO PERFECT A PROPER PLEA AGREEMENT. THE PLEA AGREEMENT:

(A) DID NOT DEFINE 'COOPERATION';

(B) THE PLEA AGREEMENT DID NOT CONTAIN A SENTENCING RANGE BASED ON COOPERATION, AND

(C) DEFENDANT PROVIDED VALUABLE COOPERATION, ACCEPTED BY THE PROSECUTOR, AND SHOULD HAVE RECEIVED A LOWER SENTENCE.

Defendant also filed a pro se supplemental brief without point headings2 arguing that his counsel was ineffective in not informing him that he faced deportation as a collateral consequence of his guilty plea.

Although he initially stated in English at his PCR hearing that he did not want a Spanish interpreter, after colloquy with the judge defendant accepted the assistance of the Spanish interpreter. The prosecutor stated that defendant had given no further cooperation to the State beyond his testimony at the plea hearing. Defendant argued that he understood from defense counsel that he could receive no more than four years in prison with a nine-month term of parole ineligibility.

Judge Clark rejected defendant s argument that defense counsel was ineffective in not clearly informing defendant as to the length of the sentence he faced. She noted the numerous times during the plea hearing that both she and the prosecutor placed on the record the terms of the agreement including the length of the possible sentence and that the sentence factored in defendant s cooperation with the State against his co-defendants. The length of the possible sentence was also recorded on the plea form as "MAX 9 MIN 4." We are satisfied from our review of the record, the applicable law, and Judge Clark's findings, that this argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.

Defendant's argument that he should be accorded relief because defense counsel did not explain the deportation consequences of his guilty plea is belied by Judge Clark s clear warning on the record as well as the recent New Jersey Supreme Court decision declining to apply retroactively the federal requirement that a defendant must be informed of the level of certainty of deportation as a result of his guilty plea. State v. Gaitan, 209 N.J.339, 372 (2012).

To establish a prima facie claim of ineffective assistance of counsel, a convicted defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz test.3 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-part test, first, a defendant must establish "that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a "'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)).

In the present matter, Judge Clark carefully considered each of defendant's PCR claims. Her findings are adequately supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 472 (1999) (citations omitted), and she properly concluded that defendant failed to demonstrate a reasonable likelihood of success under the Strickland/Fritz test. Accordingly, we affirm substantially for the reasons stated by Judge Clark in her oral decision on June 30, 2010.

Affirmed.

1 Defendant printed his signature.

2 See Rule 2:6-2(a)(1).

3 Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct.

2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105

N.J. 42, 58 (1987).