STATE OF NEW JERSEY v. JOREMI NARANJO

NOT FOR PUBLICATION WITHOUT THE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.

JOREMI NARANJO, a/k/a

JUREMI NARANJO,

Defendant-Appellant.

December 23, 2013

Submitted December 17, 2013 Decided

Before Judges Reisner and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 04-07-2828 and 05-06-2436.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joremi Naranjo appeals from a May 13, 2011 Law Division order denying his petition for post-conviction relief (PCR). Defendant contends that his plea counsel was ineffective because he failed "to provide him with clear and correct advice regarding community supervision for life rules and regulations" that were a consequence of his guilty plea. We affirm.

Pursuant to a plea agreement, on August 8, 2005, defendant pled guilty to a single-count indictment charging him with second-degree sexual assault, N.J.S.A. 2C:14-2c(1). Defendant also pled guilty to first-degree aggravated arson, N.J.S.A. 2C:17-1a(2), charged in a second indictment. In exchange for defendant's guilty plea, the State agreed to dismiss the remaining nine counts charged in the second indictment, and to recommend a sentence of seven years imprisonment on the aggravated arson charge and a concurrent five year prison term on the sexual assault charge. Defendant's aggregate seven year sentence was subject to the No Early Release Act (NERA)1, and Megan's Law2, including community supervision for life (CSL)3.

In addition to the standard plea form, defendant completed the NERA plea form and the supplemental plea forms for sexual offenses. Defendant testified at the plea hearing that he reviewed and understood the plea forms before signing them, his plea counsel reviewed the forms with him in detail and answered all his questions, and that he was satisfied with counsel's services. Counsel similarly represented on the record that he went over all of the plea forms with defendant, adding:

And then finally, Judge, I filled out the three page plea form for Megan's Law registration and address verification, community supervision for life[,] internet posting and SANE penalty and also civil commitment. I explained all those implications to my client, he understands that, Judge . . . .

Notably, defendant answered "YES" on the supplemental plea form to the questions that asked:

4. Community Supervision for Life

(a) Do you understand that if you are pleading guilty to the crime of . . . sexual assault . . . the Court in addition to any other sentence, will impose a special sentence of community supervision for life?

(b) Do you understand that being sentenced to community supervision for life means that: you will be supervised for at least 15 years as if on parole, and subject to conditions appropriate to protect the public and foster rehabilitation, including, but not limited to counseling; and other restrictions, which may include restrictions on where you can live, work or travel?

Prior to accepting the plea, Judge Louise D. Donaldson asked defendant if he understood all of its various consequences, including:

[The Court]: Do you understand that you will be on parole supervision for life, that means, Sir, that [i]f you are [on] parole supervision, before that we called it community supervision, but it's now called parole supervision, that for parole supervision and for at least 15 years you will be supervised as if you were on parole and you must - - there will be certain types of requirements made of you by the parole officer or the probation officer who's in charge of your case, including it could be counseling, restrictions on where you can live, where you can work or where you can travel to. Do you understand that?

[Defendant]: Yes.

[The Court]: As I understand, Sir, if you're leaving the State you need to notify your parole officer that you're going to be leaving or your probation officer. Do you understand that, Sir?

[Defendant]: Yes.

On October 14, 2005, Judge Donaldson sentenced defendant in accordance with the terms of the plea agreement. Defendant did not file a direct appeal. He filed a pro se petition for PCR in April 2010 asserting, among other things, that "[c]ounsel failed to inform [him] of the [CSL] rules and regulations." Defendant's appointed PCR counsel then filed a supplemental brief, and defendant submitted a supplemental certification that did not address the CSL issue, or otherwise identify any "rules and regulations" that caused him concern.

On May 13, 2011, Judge Donaldson conducted oral argument, issued an oral opinion, and concluded:

[D]efendant argues his plea counsel was ineffective because he failed to inform defendant of the rules and regulations of the [CSL] portion of his sentence. This argument is without merit. Not only did defendant complete a form advising him of the parameters of [] CSL, the Court was thorough in its own examination of the rules at the time of the plea. Thus, defendant was fully advised of the obligations of [CSL], and plea counsel's conduct in this regard was not unreasonable.

Moreover, defendant has not alleged that he would not have pled guilty had he been fully advised of these rules. Therefore, [he] does not show any prejudice . . . . [F]urther, the Court reviewed [] the plea transcript, and the defendant agreed that [] his plea counsel had gone over all of the questions with him and he understood those questions, including those which related to the [CSL]. Thus, defendant has failed to show [a] prima facie case of ineffective assistance with respect to the rules and regulations of [CSL].

The judge then entered an order denying the petition and this appeal followed.

Defendant raises the following argument on appeal:

POINT ONE

THE COURT ABUSED ITS DISCRETION AND ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

We begin with a review of the well-established legal principles that guide our analysis. Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S.Const.amend. VI; N.J. Const.art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992).

Ineffective assistance of counsel claims must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of a deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

This standard also applies in the context of guilty pleas, where attorney competence is required, and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

A petitioner must establish the right to relief by a preponderance of the evidence, Preciose, supra, 129 N.J. at 459, and "must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, "bald assertions" of ineffective assistance are not enough. Ibid. The court must view the facts alleged in the light most favorable to the petitioner. Ibid.

A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where "the defendant's allegations are too vague, conclusory, or speculative[.]" Ibid.; see also State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Having considered the record in light of the applicable legal principles, we conclude that defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We have previously indicated that "[c]hapter and verse are not necessary" when informing a defendant of all the details of CSL, so long as defendant understands that CSL is the functional equivalent of life-time parole. State v. Jamgochian, 363 N.J. Super. 220, 227 (App. Div. 2003). Here, that essential requirement was clearly met. Accordingly, we affirm substantially for the reasons provided by Judge Donaldson in her May 13, 2011 oral opinion.

1 N.J.S.A. 2C:43-7.2.

2 N.J.S.A. 2C:7-1 to -23.

3 N.J.S.A. 2C:43-6.4. Because defendant committed the sexual assault prior to the amendment to the statute to change "community supervision for life" to "parole supervision for life," he remains under CSL. N.J.A.C. 10A:71-6.11(a).