STATE OF NEW JERSEY v. EDDY CASCO

NOT FOR PUBLICATION WITHOUT THE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.

EDDY CASCO,

Defendant-Appellant.

December 6, 2013

Submitted November 20, 2013 Decided

Before Judges Fuentes and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-06-0962.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a June 8, 2012 order denying his petition for post-conviction relief (PCR). We affirm.

A grand jury indicted and charged defendant with first-degree murder, N.J.S.A. 2C:11-3a (1) or (2). Defendant's plea counsel negotiated an agreement that lessened defendant's possible jail time significantly. Defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), and the judge sentenced defendant in accordance with that agreement to eighteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed and we affirmed on our excessive sentencing calendar, R. 2:9-11. State v. Casco, No. A-5160-07 (App. Div. November 17, 2009).

Defendant filed his petition for PCR. Judge Lisa Rose heard oral argument and denied the petition. She memorialized the reasons for denying the petition in a nineteen-page written opinion. Judge Rose thoroughly considered and rejected defendant's contentions that trial counsel failed to (1) visit defendant and discuss his plea; (2) fully explain the elements of a passion/provocation defense; (3) explore an intoxication defense; (4) fully advise defendant of any plea negotiations or of the possible extent of his sentence; (5) share discovery with defendant; and (6) adequately represent defendant at sentencing. Judge Rose found defendant's contentions were belied by the record and that defendant failed to establish a prima facie case of ineffectiveness of counsel.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REVIEW ALL RELEVANT ASPECTS OF THE DEFENDANT'S CASE WITH HIM PRIOR TO TRIAL, INCLUDING THE POTENTIONAL FOR RELYING UPON A PASSION/PROVOCATION DEFENSE AT TRIAL, WHICH LED THE DEFENDANT TO ENTER INTO A PLEA AGREEMENT RATHER THAN PROCEEDING TO TRIAL.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT'S INTERESTS AT SENTENCING BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS AND BY FAILING TO DEMONSTRATE THE INAPPLICABILITY OF ONE OF THE TWO AGGRAVATING FACTORS FOUND BY THE TRIAL COURT TO EXIST.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We thus affirm substantially for the reasons expressed by Judge Rose in her comprehensive opinion. We add only the following brief comments. In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel:

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have plead guilty and would have insisted on going to trial.'

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (alterations in original).]

Although the question addressed in Nunez-Valdez concerned defendant's immigration status, we have applied the same standards to assess the validity of a claim of ineffective assistance of counsel in the context of a guilty plea that did not involve the immigration status of the defendant. See State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nunez-Valdez standards to assess the materiality of erroneous information provided by defense counsel concerning the defendant's right to possess a firearm.)

We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test as well as the standard established under Nunez-Valdez.