STATE OF NEW JERSEY v. BRET SOBOLEWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2749-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRET SOBOLEWSKI,

Defendant-Appellant.

________________________________________

March 26, 2013

Submitted March 13, 2013 Decided

Before Judges Axelrad and Happas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 94-01-0093.

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 (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Sobolewski appeals from a June 1, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant alleged ineffective assistance of trial counsel in his first conviction contending he was not properly counseled prior to entering his plea. We affirm.

Defendant s criminal history includes four adjudications and three convictions. Defendant was charged in a five-count Middlesex County indictment1 with third-degree burglary, N.J.S.A. 2C:18-2 (count three); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count four); and third-degree escape, N.J.S.A. 2C:29-5 (count five).

Defendant was also charged in a four-count Camden County indictment with third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5) (counts one and two); third-degree attempted escape, N.J.S.A. 2C:5-1 and 2C:29-5 (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2 (count four).

The Middlesex County charges were consolidated with the Camden County charges for resolution through a single plea agreement. Pursuant to a plea agreement, as to the Camden County indictment, defendant pled guilty to third-degree attempted escape (count three) and fourth-degree resisting arrest (count four). With respect to the Middlesex County indictment, defendant pled guilty to third-degree burglary (count three) and third-degree escape (count five).

Pursuant to the negotiated plea, on September 13, 1991, defendant was sentenced to three years probation (concurrent terms) and 364 days of county jail with 141 days jail credit. The court also imposed appropriate fines and penalties. Defendant did not file a direct appeal from his conviction and sentence.

On January 1, 1993, defendant was charged in a two-count Camden County indictment with second-degree robbery, N.J.S.A. 2C:15-1 (count one); and fourth-degree eluding, N.J.S.A. 2C:29-2(b) (count two). Defendant was still serving the term of probation imposed on September 13, 1991 when he committed the offenses charged under this indictment. Pursuant to a plea agreement, defendant pled guilty to second-degree robbery (count one) and to violating probation on his 1991 conviction.

Pursuant to the negotiated plea, on September 24, 1993, defendant was sentenced to a flat six year term for second- degree robbery. Appropriate fines and penalties were imposed. As to defendant s violation of probation, the court revoked his probation and sentenced him to concurrent flat three year terms to run concurrently with the six year term imposed on the robbery conviction. Defendant did not file a direct appeal from these convictions. On January 4, 1994 defense counsel filed a motion for a change of the September 24, 1993 sentence which was denied. Two motions for reconsideration were filed during the next sixteen months. Both motions were denied.

Almost eighteen years later, on August 20, 2009, defendant filed a PCR petition in which he alleged ineffective assistance of trial counsel in not advising him that by pleading guilty to burglary, rather than theft, in the initial Middlesex County indictment, he would be subjected to enhanced penalties in the event of some future federal conviction.2

Judge Samuel D. Natal issued a written opinion and order on June 1, 2010, denying PCR. He found the petition was time barred and defendant failed to demonstrate excusable neglect for the delay. He also considered defendant s substantive points, finding each to be lacking in merit. This appeal followed.

On appeal, defense counsel raises the following arguments for our consideration:

POINT ONE:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.

POINT TWO:

THE COURT MISAPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

POINT THREE:

THE LOWER COURT ERRED IN FINDING PETITIONER'S CLAIMS WERE BARRED PROCEDURALLY FROM BEING RAISED IN THIS PETITION BECAUSE THEY WERE NOT RAISED ON DIRECT APPEAL.

POINT FOUR:

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE HIS FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT, THERE WAS NO PREJUDICE TO THE STATE, AND BECAUSE THE INTEREST OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

In a pro se brief, defendant argues:

A. THE DIRECT, AND SUBSTANTIAL COLLATERAL CONSEQUENCES OF DEFENDANT'S PLEA AGREEMENT WAS NOT EXPLAINED TO HIM. DEFENDANT'S PLEA WAS THEREFORE NOT KNOWINGLY, VOLUNTARILY, OR INTELLIGENTLY MADE. IND. NO. 2647-12-90, 2454-9-90.

B. THE NATURE OF THE CHARGES WERE NEVER EXPLAINED TO ME. MY PLEA WAS THEREFORE NOT KNOWINGLY, VOLUNTARILY, OR INTELLIGENTLY MADE. IND. NO. 2647-12-90, 2454-9-90.

We have considered the points raised in accordance with the record, arguments advanced, and applicable legal principles. We affirm substantially for the reasons articulated in Judge Natal's written opinion. We add the following comments.

We consider a defendant's claim of ineffective assistance of counsel under the standards recently reiterated in State v. Parker, 212 N.J.269, 279 (2012) (citing State v. Fritz, 105 N.J.42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id.at 687, 104 S. Ct.at 2064, 80 L. Ed. 2dat 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).

A defendant claiming that his attorney was ineffective in his representation "must demonstrate first 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.'" Parker, supra, 212 N.J.at 279 (quoting Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed. 2dat 693). A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'The 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.'" Parker, supra, 212 N.J.at 279-80 (quoting Strickland, supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed. 2dat 698; State v. Hess, 207 N.J.123, 146 (2011); State v. Winder, 200 N.J.231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Parker, supra, 212 N.J.at 279 (citing Fritz, supra, 105 N.J.at 58).

Additionally, a defendant must demonstrate, in the context of a guilty plea, that he would not have pled guilty but for his counsel's defective representation. State v. Nunez-Valdez, 200 N.J.129, 139 (2009) (citing State v. DiFrisco, 137 N.J.434, 457 (1994)).

Defendant argues that his current federal sentence was enhanced due to his guilty plea to burglary in 1991.3 According to defendant, he would have elected to stand trial if he knew that his guilty plea to burglary would subject him to enhanced penalties in the event of a future federal conviction.

Defendant's claim that he was not properly informed of the consequences of his plea is without support in the record. At the plea hearing, it was established that defendant initialed and signed the plea form and understood the terms of the plea agreement. Defendant provided an appropriate factual basis for his plea to burglary. Defendant has provided no support for his contention that there was an arbitrary decision to plead to burglary rather than theft. Moreover, at the time of his plea, there were no federal charges pending or anticipated; thus, no reason to address a potentially enhanced federal sentence. In addition, defendant failed to address the impact his 1993 plea to second-degree robbery had on his enhanced federal sentence.

Defendant must establish a prima facie claim of ineffective assistance of counsel before an evidentiary hearing should be granted. State v. Preciose, 129 N.J.451, 462-63 (1992). "Bald assertions" are insufficient for this purpose. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199, (1999). Defendant fails to satisfy this standard.

Lastly, in light of the Parker decision, we are obliged to address the single statement in defendant's brief that PCR counsel was ineffective in not requesting oral argument. In Parker, the Court addressed the limited issue of whether defendant "was entitled to oral argument in connection with his first petition for post-conviction relief." Id. at 277. Here, as in Parker, the court did not entertain oral argument. We are satisfied, however, that although the better practice would have been to conduct oral argument or to give a reason why oral argument was unnecessary, the failure to do so does not warrant reversal.

The defendant in Parkerexpressed to the investigating officers that a drug dealer for whom he worked would have had him killed unless he agreed to kill the victim. Id.at 273-274. Defendant claimed he acted under duress when he committed the crime. Ibid. The PCR judge explained that the defendant did not submit any certifications or affidavits with his PCR motion supporting his defense of duress. Id.at 283. However, the Supreme Court found that the defendant's petition did include a copy of the defendant and his co-defendant's sworn statements provided to the police at the time of their arrests which set forth in detail the defendant's duress claim. Ibid. Thus, the Supreme Court was satisfied that the sworn statements that the defendant presented in his petition were sufficient to have warranted oral argument. Id.at 284.

This matter is distinguishable from Parker. In Parker, the defendant filed a timely petition for PCR approximately four years after he was sentenced. Id.at 275. Additionally, the lack of oral argument led to a misunderstanding of the evidence presented by the defendant. Id.at 283. Moreover, in Parker, the defendant properly raised the issue of oral argument in his PCR appeal. Id.at 276.

In the present matter, defendant filed his petition almost eighteen years after sentencing. This is well beyond the time limit set forth in Rule3:22-12(a). Defendant also failed to provide any proof of conflicting evidence that would warrant oral argument. Furthermore, defendant did not properly raise the issue of oral argument as a point heading required by Rule 2:6-2(a)(5). Defendant merely set forth a statement in his brief that no oral argument was held.

Although the Supreme Court in Parkernoted that a judge should approach each PCR petition with the view that oral argument should be granted, it did not hold that every defendant is entitled to present oral argument as a matter of law. Id.at 278, 282. We are satisfied that on this record, the PCR judge did not take "too narrow a view" of defendant's arguments nor abuse his discretion by disposing of the motion on the papers. SeeParker, supra, 212 N.J.at 284.

A

1 Counts one and two of the Middlesex County indictment pertained only to co-defendants.

2 There is no dispute that defendant is currently serving a federal sentence but the record does not reflect the basis for that incarceration.

3 Defendant contends that he is currently serving a 262 month sentence but had he pled guilty to theft, he would have received a 120 month sentence.