STATE OF NEW JERSEY v. JOSE QUINTANA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5164-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE QUINTANA,

Defendant-Appellant.

______________________________________

December 7, 2012

Submitted November 14, 2012 - Decided

Before Judges Reisner and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-10-4025.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Jose Quintana appeals from the December 2, 2011 order denying his application for post-conviction relief (PCR). We affirm.

I.

In June 2002, Quintana was convicted by a jury of the following charges stemming from events that occurred in June 1998: first-degree aggravated sexual assault upon a fifteen-year-old victim by vaginal penetration while armed with a weapon, N.J.S.A. 2C:14-2(a)(4) (count one); first-degree aggravated sexual assault upon a fifteen-year-old victim by fellatio while armed with a weapon, N.J.S.A. 2C:14-2(a)(4) (count two); first-degree aggravated sexual assault upon a fifteen-year-old victim by vaginal penetration during a kidnapping, N.J.S.A. 2C:14-2(a)(3) (count three); first-degree aggravated sexual assault upon a fifteen-year-old victim by fellatio during a kidnapping, N.J.S.A. 2C:14-2(a)(3) (count four); first-degree kidnapping to facilitate commission of a crime of aggravated sexual assault and without releasing the victim unharmed, N.J.S.A. 2C:13-1(b)(1) (count five); third-degree endangering the welfare of child under the age of sixteen, N.J.S.A. 2C:24-4(a) (count six); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count seven); third-degree possession of a knife with intent to use against a person, N.J.S.A. 2C:39-4(d) (count eight); second-degree aggravated assault by causing or attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count nine); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count ten); and third-degree making a terroristic threat, N.J.S.A. 2C:12-3(a) (count eleven). The jury also made specific findings that defendant had committed "crimes of violence" of aggravated sexual assault, kidnapping, aggravated assault, and that the victim was younger than sixteen.

After merger, Quintana was sentenced to an aggregate sentence of a life term plus ten years (subject to the No Early Release Act, N.J.S.A. 2C:43-7.2) with twenty-five years of parole ineligibility.

Quintana appealed the judgment of conviction and we affirmed. State v. Quintana, No. A-1024-03 (App. Div. July 26, 2006). The Supreme Court denied further review. State v. Quintana, 188 N.J. 493 (2006).

In his pro se PCR petition, Quintana alleged that he was victimized by prosecutorial misconduct, judicial misconduct, and suffered the ineffective assistance of counsel by his trial, appellate, and PCR attorneys. His September 2008 certification in support of PCR further stated, "Last but not least . . . Police fabrication is a point for consideration since any physical contact between defendant and constable was one-sided." Additionally, Quintana submitted a certification from his mother, which averred that her son suffered from serious mental health issues and never received any mental health treatment prior to his incarceration.1

The PCR judge was also the trial judge. He conducted a hearing (but not an evidentiary hearing) in November 2009, and issued an order denying PCR on December 17, 2009. One year to the day later, we remanded the matter and required "the PCR judge [to] provide counsel and the Appellate Division Clerk with his findings of fact and conclusions of law supporting denial of [Quintana's] PCR petition."

The PCR judge rendered a written opinion in April 2011, explaining why he rejected all of Quintana's claims for PCR. However, the judge identified one issue raised for the first time at the post-remand oral argument and not briefed by the parties that eluded determination: "whether [Quintana] was advised by his trial counsel as to the sentencing exposure he faced if convicted." The judge reserved decision on that issue and permitted supplemental briefing. On December 2, 2011, an evidentiary hearing was conducted where Quintana and his trial attorney were the only witnesses.

At the conclusion of the hearing, the PCR judge again denied relief. In so doing, the judge identified that the purpose of the evidentiary hearing was to collect evidence on Quintana's claim that trial counsel (1) misadvised him that the maximum sentence if he were found guilty at trial would be fifteen years and (2) failed to advise him that the State had offered a plea bargain with a maximum exposure of ten years.

The PCR judge found that Quintana's trial counsel was credible in his testimony that he had advised Quintana of the appropriate possible sentences for the charged crimes. The court expressly found that Quintana "was aware that his exposure was more than [fifteen] years." More important, the judge stated,

even if [that] weren't true, Mr. Quintana maintained his innocence throughout this trial, [and] he would not have taken a plea.

. . . .

Whether he received a plea offer of [ten] years or [fifteen] years, I'm satisfied that [fifteen] years for aggravated sexual assault of a minor with a weapon, kidnapping of a minor with a weapon were not enough for him to take a [fifteen] year plea. And so I am convinced that Mr. Quintana, even if he would have known, would not have accepted a plea, but I do find that he did know of the maximum exposure and deny his claim for post-conviction relief.

On appeal, in addition to the contentions within Quintana's pro se submissions, the following argument has been presented for our consideration:

POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO COMMUNICATE TO DEFENDANT THE STATE'S PLEA OFFER.

After reviewing the record, we are neither persuaded by this contention nor the pro se arguments contained in Quintana's multiple submissions.

II.

We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 (2012).2 First, Quintana must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. With respect to both factors of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

Also,

[t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

[State v. Gaitan, 209 N.J. 339, 350 (2012).]

These principles extend to a criminal defense attorney's representation of an accused in connection with plea arrangements. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1408-09, 182 L. Ed. 2d 379, 390 (2012). However, a defendant will not be heard to claim he would have accepted a plea offer without at least a prima facie showing that he could have truthfully pled guilty. See State v. Taccetta, 200 N.J. 183, 195-96, 198-99 (2009).

Quintana argues that he was deprived of the effective assistance of counsel because he was either misinformed about the maximum sanction that could be imposed upon him if found guilty or he was never provided with information from his attorney that the State had offered a ten-year plea arrangement.

The PCR court found that Quintana's trial counsel did tell him about the correct penal exposure and that Quintana was cautioned that he would suffer a long sentence if he were convicted at trial. Additionally, the PCR court was convinced that regardless of the duration of the State's offer, "Mr. Quintana . . . would not have accepted a plea."

We are fully cognizant of our limited role as an appellate court in reviewing findings of fact and credibility determinations of a Law Division judge. State v. Elders, 192 N.J. 224, 243-44 (2007). We must defer to the fact findings of a PCR judge who has held an evidentiary hearing and assessed the credibility of witnesses. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The PCR judge here concluded that Quintana's testimony was not believable, and defense counsel's testimony accurately reflected what was said and discussed in 2002. In order to affirm these findings, "we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions." State v. W.B., 205 N.J. 588, 603 n.4 (2011) (citing Elders, supra, 192 N.J. at 242-44). Having reviewed the record of the evidentiary hearing and the earlier proceedings, we are satisfied that such evidence exists. Accordingly, Quintana did not surmount either the performance or prejudice thresholds of Strickland.

Our review further convinces us that Quintana's pro se arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 At the time of sentencing in 2002, Quintana was found by the State's examining psychologist to be "not eligible for sentencing under the purview of the New Jersey Sex Offender Act." However, because the examiner concluded that Quintana otherwise exhibited "severe psychopathology," he recommended that Quintana "be referred for further mental health evaluation and treatment while incarcerated."

2 The Strickland/Fritz test not only applies to trial counsel, but also "governs claims that appellate counsel rendered ineffective assistance." State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).