STATE OF NEW JERSEY v. JASON VEGA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON VEGA,

Defendant-Appellant.

_________________________

October 31, 2013

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-04-0446.

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

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jason Vega appeals from the July 21, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

A grand jury indicted defendant and his co-defendants Rodney Fulton and Shawki Mitchell for first-degree robbery, N.J.S.A. 2C:15-1a(1); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1a(1); two counts of second-degree burglary, N.J.S.A. 2C:18-2a(1); third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2a(2); and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1).1 The charges stemmed from the shooting of the victim during a home invasion.

Defendant pled guilty to first-degree robbery in exchange for the State's agreement to dismiss the remaining counts and recommend a ten-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The trial judge sentenced defendant in accordance with the plea agreement.

Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed. Defendant then filed a PCR petition, contending that trial counsel rendered ineffective assistance by: (1) failing to pursue a psychiatric and/or diminished capacity defense based on an anxiety attack defendant allegedly suffered on the day of the crime; (2) allowing defendant to enter a plea that was not voluntary, intelligent and knowing because he was under the influence of alprazolam and lorazepam at the time of the plea; (3) failing to file a motion to dismiss the indictment based on a tainted grand jury; and (4) allowing defendant to provide an inadequate factual basis for his plea.

In a July 21, 2011 written opinion, Judge David H. Ironson concluded that defendant failed to satisfy the first prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which requires a showing that trial counsel's performance was deficient. The judge found that defendant provided no proof he had actually ingested the medications on the day of the plea, and provided no reports or expert opinions demonstrating how his alleged anxiety disorder or the medications he allegedly took affected his mental faculties.

Citing State v. Murphy, 110 N.J. 20 (1988), Judge Ironson determined that defendant failed to demonstrate that the prosecutor's conduct before the grand jury was extreme or infringed upon the grand jury's decision-making function. The judge found that the prosecutor's presentation did not prejudice defendant in any way nor interfere with the grand jury's independent role to assess the sufficiency of the evidence and determine whether the state presented a prima facie case of criminal conduct by defendant related to the charges specified in the indictment. The judge concluded that defendant suffered no prejudice by trial counsel's failure to file a motion to dismiss the indictment because challenging the grand jury would have resulted in the juror's replacement, re-presentment to the grand jury, or a superseding indictment.

With respect to defendant's guilty plea, Judge Ironson determined that defendant gave a sufficient factual basis for his plea to first-degree robbery. The judge found that defendant admitted at the plea hearing that he knew Mitchell had a weapon, and defendant stated in a certification submitted in support of this PCR petition that he knew that Mitchell had a gun after he and his co-defendants arrived at the location.

Judge Ironson concluded that even if trial counsel's performance was deficient, defendant failed to satisfy the second prong of Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, which requires a showing that the deficiency prejudiced the defense. The judge found that defendant failed to demonstrate how the outcome would have been different but for trial counsel's alleged deficient performance. This appeal followed.

On appeal, defendant raises the following contentions:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF TRIAL COUNSEL.

A. Trial Counsel Failed to Pursue A Psychiatric And/Or Diminished Capacity Defense.

B. Trial Counsel Allowed Defendant To Enter A Guilty Plea That Was Not Voluntary, Intelligent and Knowing.

C. Trial Counsel Allowed Defendant To Provide An Inadequate Factual Basis For His Guilty Plea.

D. Trial Counsel Failed to File A Motion To Dismiss The Indictment Because Of A Tainted Grand Jury.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Nash, supra, 212 N.J. at 542 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is 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.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons Judge Ironson expressed in his well-reasoned written opinion.

1 The grand jury also indicted Mitchell for third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), and first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1).