STATE OF NEW JERSEY v. EDWARD VELEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4225-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD VELEZ,

Defendant-Appellant.

______________________________________________

May 8, 2013

 

Submitted March 18, 2013 - Decided

 

Before Judges Espinosa and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-02-0353.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

 

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

PER CURIAM

Defendant Edward Velez appeals from an October 21, 2010 Law Division order denying his petition for post-conviction relief (PCR). Defendant claims that his trial counsel was ineffective during plea negotiations and the plea hearing and that his sentence was illegal. We have considered his arguments in light of the facts and applicable law, and we affirm the order denying his petition.

During the early morning hours of October 16, 2005, defendant was driving a car with Ricardo Figueroa when they encountered Juan Peguero walking along Graham Street in Jersey City. Defendant and Figueroa identified themselves as police officers and forced Peguero into their car. As they were driving, Peguero was asked several times where his drugs were. Each time he replied that he had no drugs. Peguero was then told to empty his pockets. He complied, leaving his cell phone, $130 in cash, a debit card, and a set of house keys in the car. Peguero was dropped off on Graham Street and reported the incident to police.

Closed-circuit television monitors captured the abduction on videotape and police were able to identify the license plate of the vehicle. The registration was traced to defendant s girlfriend who told police she had lent defendant her car for the night.

A Hudson County grand jury returned a three-count indictment charging defendant and Figueroa with second-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); and fourth-degree impersonating a law enforcement officer, N.J.S.A. 2C:28-8(b) (count three).

On the scheduled trial date, defendant pled guilty to counts one and three pursuant to a plea agreement. The agreement provided that, on count one, the State would be free to seek a sentence of fifteen years with an 85% period of parole ineligibility. As to count three, the State could seek up to five years, with both sentences running concurrently. The court informed defendant that it was required to impose a sentence between ten and fifteen years, due to defendant's record as a persistent offender.

At defendant s sentencing hearing, the court granted the State s motion for an extended sentence. On count one, defendant received a twelve-year sentence with 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three, defendant was sentenced to five years, to run concurrently with the sentence imposed on count one. Count two was dismissed.

Defendant appealed and we remanded for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). State v. Velez, No. A-305-07 (App. Div. June 23, 2009). On remand, the same sentence was imposed.

On April 14, 2010, defendant filed a pro se petition for PCR. Counsel was appointed to represent defendant and on September 16, 2010, the sentencing judge, Hon. Kevin G. Callahan, heard argument. On October 21, 2010, Judge Callahan filed a written decision addressing each claim raised by defendant and denied the petition.

On appeal, defendant raises the following points for our consideration:

POINT I

 

THE COURT ERRED IN FINDING THAT TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE DURING PLEA NEGOTIATIONS AND THE PLEA HEARING.

 

POINT II

 

DEFENDANT WAS MISINFORMED OF THE PENAL CONSEQUENCES OF THE PLEA. R. 3:9-2. (NOT RAISED BELOW)

 

POINT III

 

THE MOTION FOR AN EXTENDED TERM WAS NOT TIMELY FILED. R. 3:21-4(e)(f). (NOT RAISED BELOW)

 

POINT IV

 

THE EXTENDED TERM SENTENCE IMPOSED WAS ILLEGAL, IN VIOLATION OF R. 3:21-4(e). (NOT RAISED BELOW)

 

POINT V

 

THE JUDGMENT OF CONVICTION ON RE-SENTENCE CHANGED THE MITIGATING FACTORS. (NOT RAISED BELOW)

 

POINT VI

 

THE COURT ERRED IN FINDING THAT COUNSEL WAS NOT INEFFECTIVE IN FAILING TO REQUEST A COMPETENCY HEARING.

 

POINT VII

 

THE CUMULATIVE EFFECT OF THE ERRORS OF TRIAL COUNSEL ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE.

 

POINT VIII

 

THE COURT REFUSED TO ALLOW DEFENDANT TO ARGUE FOR A SENTENCE IN THE ORDINARY RANGE. (NOT RAISED BELOW)

 

POINT IX

 

THE COURT ERRED IN DENYING THE REQUEST TO WITHDRAW THE PLEA.

We have considered these arguments in light of the record and applicable legal standards, and we affirm substantially for the reasons expressed in Judge Callahan's thorough and comprehensive written decision. We add only the following brief comments.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

As Judge Callahan noted, defendant's claim that his plea counsel assured him that he would not receive more than a ten-year sentence is flatly contradicted by the record. Similarly, the record is devoid of any support for defendant's claim that he wanted to go to trial and was coerced into pleading guilty. Judge Callahan's decision quotes extensive portions of the plea transcript which support his conclusion that defendant was fully informed of the penal consequences of his plea and that he entered the plea voluntarily. Defendant has failed to make a prima facie showing of ineffective assistance of counsel as to these claims.

Defendant's claim that plea counsel should have sought a competency hearing because "he was under tremendous stress, could not sleep and had been taking a large amount of sleeping pills" is not supported by the record. During the plea hearing, the court questioned defendant as to his ability to understand the proceedings:

[COURT]: Under the influence today of any medication, alcohol or drugs?

 

[DEFENDANT]: Yeah, I take medication.

 

[COURT]: What for?

 

[DEFENDANT]: To go to sleep.

 

[COURT]: Does that cause you not to understand what's happening here today?

 

[DEFENDANT]: I got a problem with my ear, I can't hear.

 

[COURT]: All right. Can you hear me?

 

[DEFENDANT]: Yes.

 

[COURT]: If you don't hear me, let me know.

 

[DEFENDANT]: All right.

 

[COURT]: Does your sleep medication interfere with your ability to understand what's happening here today?

 

[DEFENDANT]: Sometimes.

 

[COURT]: Well, does it today? Do you understand everything?

 

[DEFENDANT]: Yeah, I understand.

 

[COURT]: I'm not talking about that you get little sleep or something, has the effect of a sleeping pill -- it's a sleeping medication, right?

 

[DEFENDANT]: Right.

 

[COURT]: But are you understanding everything here today to cooperate with your attorney?

 

[DEFENDANT]: Yes.

 

[COURT]: So it's not affecting you.

 

[DEFENDANT]: No.

 

Under N.J.S.A. 2C:4-4, a competency hearing becomes necessary "[w]here evidence raises a bona fide doubt as to a defendant's competence." State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007). We conclude that plea counsel was not ineffective for failing to request a competency hearing based on this record as there was no indication that defendant "lack[ed] capacity to understand the proceedings against him or to assist in his own defense." N.J.S.A. 2C:4-4(a).

We find insufficient merit in defendant's remaining arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A

ffirmed.