STATE OF NEW JERSEY v. WILFREDO SANTANA

NOT FOR PUBLICATION WITHOUT THE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.

WILFREDO SANTANA, a/k/a

FRED SANTANA, a/k/a FRED

WILFREDO, a/k/a FREDDY GOMEZ,

a/k/a FRANK GOMEZ,

Defendant-Appellant.

___________________________________

January 23, 2014

Submitted August 14, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment

No. 04-04-1421.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

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

The opinion of the court was delivered by

ACCURSO, J.A.D.

Defendant Wilfredo Santana appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial court properly concluded that the evidence was inadequate to sustain defendant's burden, we affirm.

Defendant was indicted on two counts of carjacking, N.J.S.A. 2C:15-2a(2), two counts of terroristic threats, N.J.S.A. 2C:12-3b, armed robbery, N.J.S.A. 2C:15-1, and aggravated assault, N.J.S.A. 2C:12-1b(1). Pursuant to a negotiated agreement, defendant, who was extended term eligible as a persistent offender, N.J.S.A. 2C:44-3(d), pled guilty to two counts of carjacking, and the State agreed to recommend concurrent sentences not to exceed twenty-five years on each of the two counts, subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to pay all mandatory fines and penalties, provide a DNA sample, waive appeal, and have no contact with the three victims, but reserved the right to argue for a shorter period of incarceration at sentencing.

At sentencing on June 3, 2005, Judge Brown found aggravating factors one, the nature and circumstances of the offense, three, the risk that defendant would commit another offense, six, the extent of defendant's prior criminal record, and nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)1, 3, 6, and 9. The judge found no mitigating factors. Judge Brown sentenced defendant in accordance with the agreement to concurrent twenty-five year terms on each count, subject to the periods of parole ineligibility and supervision required by NERA, along with the appropriate fines and penalties.

Defendant appealed his sentence, which we reviewed on a sentencing calendar, R. 2:9-11, and affirmed. Defendant thereafter filed a timely petition for PCR on September 27, 2007, alleging he received ineffective assistance of counsel in connection with his plea and sentence. Defendant claimed that his counsel misinformed him of the plea offer and the material consequences of the plea; put through the plea notwithstanding the misinformation; failed to file a motion to withdraw the plea; failed to preserve issues by entering a conditional plea; failed to bring the case to trial; failed to pursue an intoxication defense; failed to adequately investigate the case and consult with defendant; failed to adequately review the presentence report with defendant before sentencing; failed to explain the NERA consequences of the plea and sentence; failed to argue applicable mitigating factors; failed to file a motion to reconsider sentence; failed to inform him of his right to appeal; that defects in the plea process render the plea invalid without a showing of prejudice; that the evidence did not support the enhanced sentence under NERA; and that defendant was prejudiced by the seating of one of the victims and her friend in the jury box at sentencing.

After hearing argument by assigned counsel, the trial court issued a comprehensive oral opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. State v. Preciose, 129 N.J. 451, 462-64 (1992). Specifically, Judge Brown found that defendant had committed two separate carjackings in Collingswood and Cherry Hill on December 10, 2003. Defendant approached the first victim in the parking lot of a grocery store in Collingswood as she and a friend were loading their car. Defendant approached the victim with his hand in his pocket, gesturing as if he had a gun, and threatened to kill her if she did not hand over her purse and car keys. The victim handed over both, and defendant drove away with her car as the two women ran for help.

Later that day in Cherry Hill, defendant approached another woman seated in her car in the parking lot of a clothing store. Defendant opened the car door and sat next to the victim. Defendant demanded her keys and threatened to kill her. He grabbed the victim by the neck and repeatedly punched her in the face, breaking her glasses. The victim managed to bite defendant's finger and escape from her car, which defendant drove away. The police stopped defendant in the victim's car a short time later, and he admitted committing both carjackings. Defendant had a bite mark on his finger, and the victims separately identified defendant as the carjacker from a show-up immediately following his apprehension and from a subsequent photo array.

After defendant unsuccessfully moved to bar admission of his statement and the out-of-court identifications, he entered into a plea agreement with the State. Judge Brown noted that he presided over defendant's plea hearing and imposed sentence. At the plea hearing, the prosecutor stated the terms of the agreement on the record, that defendant would receive a sentence of up to twenty-five years, eighty-five percent of which would have to be served without parole. The prosecutor noted that defendant would otherwise be subject to a discretionary extended term as a persistent offender and that his exposure, absent the agreement, would be life imprisonment plus thirty years.

Judge Brown noted that he had questioned defendant at the time of his plea and that defendant, in response, had testified under oath that he understood the charges to which he was pleading guilty, his maximum exposure, the rights he was giving up, including his right to appeal, to jury trial, and to present witnesses and defenses. Further, defendant acknowledged signing the plea form (although he had actually only initialed the pages) and that his counsel had reviewed it with him, asked him the questions on the form and circled his answers. Defendant testified that the answers were true and given of his own free will. He further testified that he understood the State would be recommending a "sentence of twenty-five years that is concurrent for both charges," and that he would "have to serve eighty-five percent of that sentence before becoming eligible for parole."

Defendant testified that he understood the other terms and conditions of the plea agreement, that he was not under the influence of any drugs or alcohol that would impair his ability to understand the proceedings, that he was satisfied with his attorney's services, and had no questions for his counsel, the prosecutor, or the court. In his factual statement in support of his plea, defendant admitted threatening to kill both drivers if they didn't surrender their cars, that he stole both cars, and that he grabbed one of the women by the neck and repeatedly punched her, resulting in a facial laceration and persistent neck pain.

After his extensive review of the facts surrounding defendant's plea, Judge Brown found that defendant's allegations in his petition that his attorney promised that a $10,000 retainer would result in a ten-year sentence, that the plea form originally said "ten years," but was changed to "twenty-five years," and that he did not understand the provisions of his NERA sentence were flatly contradicted by the record and totally without merit. The judge also noted that at the time defendant entered his plea in this matter that he had already "been through the plea process at least five times" and thus his claims of not understanding "the effects of pleading guilty is unbelievable." The judge found no evidence to suggest that defendant ever requested that his guilty plea be withdrawn, nor any grounds for the withdrawal of the plea, and thus that counsel did not err by failing to make such a motion. The judge further found that defendant had no evidence to suggest that the prosecutor would have agreed to the entry of a conditional plea.

The judge found no evidence to suggest that counsel had performed an inadequate investigation, failed to find witnesses or failed to pursue a viable intoxication offense. Defendant had not identified witnesses that could have testified on his behalf and did not present an affidavit from an expert that his drug use negated an element of the crime of carjacking. The judge noted that witnesses identified defendant as the carjacker, that he was apprehended driving one of the stolen cars, and he confessed to both carjackings. As defendant's statements and the out-of-court identifications had been deemed admissible, defendant failed to demonstrate that there was a viable defense to present at trial. Accordingly, the judge found that defendant could not establish ineffective assistance of his counsel in connection with his plea under the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Judge Brown likewise rejected defendant's claims that his counsel was ineffective at sentencing. The judge recounted that defense counsel had "fervently argued both in his sentencing memorandum and on the record at the sentencing that petitioner's serious drug addiction should have been considered a mitigating factor" and that defendant's prior convictions were not for crimes of violence. The judge noted that defendant had six prior indictable convictions and although extended term eligible for a life sentence plus thirty years, defendant received a sentence less than the maximum ordinary term, which was subsequently affirmed on appeal.

Defendant renews these arguments on appeal and adds that his petition should not have been dismissed without an evidentiary hearing. Our review of the record convinces us that Judge Brown carefully considered each of defendant's claims. We agree that defendant failed to demonstrate that the performance of his counsel was substandard or that, but for any of the alleged errors, the result would have been different. Strickland, supra, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. Accordingly, we affirm substantially for the reasons expressed by Judge Brown in his oral opinion.

We also reject defendant's argument that Judge Brown should have held an evidentiary hearing on the petition. A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. Preciose, supra, 129 N.J. at 462; R. 3:22-10(b). No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under Strickland. Preciose, supra, at 462-63. As defendant did not

establish a prima facie case for relief, no evidentiary hearing was required.