STATE OF NEW JERSEY v. JOHN G. DELLOBUONO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

JOHN G. DELLOBUONO, a/k/a

JOHN G. DELLBUONO,

Defendant-Appellant.

_______________________________________

September 5, 2014

 

Submitted May 19, 2014 Decided

 

Before Judges Kennedy and Sumners.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 05-06-2435 and 07-08-2653.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). Defendant contendshis due process rights pursuant to the Fourteenth Amendment of the United States Constitution were denied and he received ineffective assistance of counsel. We affirm.

I.

These are the relevant facts based upon the record.

On March 25, 2008, defendant pled guilty pursuant to a negotiated plea agreement to first-degree kidnapping, N.J.S.A. 2C:13-1b(1), of his girlfriend, who is also the mother of his child. Under the terms of the plea, twelve other charges were dismissed, including: first-degree conspiracy to commit murder/witness tampering, first-degree kidnapping, second-degree endangering the welfare of a child, second-degree aggravated assault, and third degree hindering apprehension or prosecution.

Prior to entering the plea, defendant discussed the nature of the charges and the plea agreement with his counsel. Thereafter, the prosecutor detailed the elements of the agreement, stating:

[Prosecutor]: Your Honor, it's my understanding the defendant is going to plead guilty to Count 1 of the indictment charging first degree kidnaping of the victim, . . . . In return the State is recommending a term of 13 years New Jersey State prison. 85 of which 85 percent without parole that the defendant would have to serve.

 

. . . .

 

. . . And he has filled out a supplemental plea form for the No Early Release Act.

 

Counsel then addressed the court indicating his concurrence with the prosecutor and confirming that he reviewed the plea and No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, forms with defendant.

In the plea form, which defendant acknowledged under oath that he signed, defendant agreed that, in exchange for his guilty plea, the State would recommend that he receive a thirteen-year sentence subject to the provisions of NERA, requiring him to serve eighty-five percent of his sentence before eligible for parole.

The plea judge then engaged in an appropriate colloquy with defendant to confirm defendant's understanding of the plea terms. When asked to provide a factual basis for first-degree kidnapping, defendant stated that he unlawfully confined the victim by preventing her from leaving her residence "despite her repeated demands to leave," for "a period of three to four hours," and "blocking the front door and holding her at knife point." The judge was satisfied with the factual basis elicited and accepted defendant's guilty plea. On May 2, 2008, after the sentencing judge weighed the aggravating and mitigating factors, defendant was sentenced in accordance with the plea to a term of thirteen years subject to NERA.

Defendant did not file a direct appeal. Rather, almost three years later he filed a PCR petition seeking to overturn his conviction and have a trial. Defendant contended his due process rights pursuant to the Fourteenth Amendment of the United States Constitution were denied because the sentencing judge improperly assessed the aggravating and mitigating factors. Healsoalleged ineffective assistance of counsel because his counsel failed to conduct an adequate pretrial investigation; failed to investigate the efficacy of presenting the defense of diminished capacity; and induced him to plead guilty to a crime he did not commit. As a result, defendant contends he did not enter his guilty pleaknowingly, intelligently, and voluntarily.

The PCR judge denied the petition, concluding an evidentiary hearing was not warranted. In his oral opinion, the judge stated:

[The] PCR [petition] also raised an issue concerning the sufficiency of the guilty plea, the facts concerning the guilty plea. . . .

 

. . . .

I read the colloquy . . . . There's no difference of any sort, but I think it's more [than] sufficien[t] and it's true as [the prosecutor] points out in the colloquy itself he says he held her for four to five hours . . . against her will . . . . One never knows what a jury's going to do but as I said this is a man who is in his mid to late forties who is facing at best just on the kidnapping is facing a 30 year sentence which under NERA would be essentially a life sentence. So the factual statement in my judgment is more than sufficient.

 

. . . .

 

I do want again [to] comment on the claims and we see them with some frequency that the defense attorney should have argued for the undercutting . . . . of the plea bargain. First under the first prong of Strickland-Fritz[1] . . . when there is a plea bargain [defense attorneys] do not argue for the undercutting of that plea bargain. They do not argue for a lessor term.

 

. . . .

 

So I can't even say under the first prong of Strickland-Fritz that it was -- that failure of the defense to argue mitigating, aggravating to try to undercut the plea bargain -- and by the way, I don't see any mitigating here.

 

. . . .

 

. . .[U]nder the second prong of Strickland-Fritz the defense has not shown that had the defense done anything differently at sentencing that it would have resulted in a lessor [] sentence. The reality . . . is that you had a first degree kidnapping.

 

. . . [I]f he goes down on the kidnapping first degree and got what I consider to be a light sentence, which would have been 13 years, . . . that looks like his best case scenario.

 

. . . .

 

. . . [T]here's nothing before me that would have shown that had the defense attorney done a, b, or c it would have in any way lessened the true exposure that [defendant] faced in this particular case.

 

This appeal followed raising the following arguments:

POINT I

THE TRIAL COURT'S ORDER DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HIS DUE PROCESS RIGHTS WERE VIOLATED WHEN HE PLED GUILTY TO A CRIME HE DID NOT COMMIT, AND DURING THE SENTENCING HEARING WHERE THE COURT DID NOT CONSIDER APPLICABLE MITIGATING FACTORS.

 

POINT II

THE TRIAL COURT'S ORDER DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

 

POINT III

THE TRIAL COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

We have carefully reviewed the record in light of these contentions and applicable legal standards, and conclude defendant's arguments are without merit.

II.

Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus. State v. Preciose, 129 N.J.451, 459 (1992) (citation omitted). It is a safeguard against unjust convictions, State v. Afanador, 151 N.J. 41, 49 (1997), and defendant's last chance to raise constitutional challenges to the fairness and reliability of a guilty verdict. State v. Loftin, 191 N.J. 172, 197 (2007). "A PCR hearing is 'not a pro forma exercise, but a meaningful procedure' to root out mistakes that cause an unjust result either in a verdict or sentence." State v. Hess, 207 N.J. 123, 144-45 (2011) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)).

New Jersey Court Rules 3:22-1 through 22-13 govern PCR petitions. Pursuant to Rule 3:22-2(a), a defendant may seek relief based upon on the "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." However, PCR "is neither a substitute for direct appeal, nor an opportunity to relitigate cases already decided on the merits." Preciose, supra, 129 N.J.at 459 (citations omitted). Consequently, under Rule3:22-4, any issue that was not raised on directappeal cannot be a basis for PCR unless it could not have reasonably been raised on direct appeal, denying relief would result in fundamental injustice, or would violate the Constitution of the United States or the State of New Jersey. R.3:22-4

Defendant sets forth two separate grounds for relief under the Fourteenth Amendment of the United States Constitution. First, he contends his due process rights were violated because his guilty plea was involuntary and should be withdrawn. Second, he contends that counsel failed to raise mitigating factors one, two, three, four, five, and eleven, N.J.S.A. 2C:44-1(b), to obtain a sentence shorter than thirteen years subject to NERA. This contention is essentially an ineffective assistance claim and we will address it separately below. As for defendant's contention regarding the adequacy of his guilty plea, we conclude there is no merit.

Defendant's claim that his guilty plea was involuntary and should be withdrawn is procedurally barred pursuant to Rule 3:22-3 because it could have, and should have been, raised on direct appeal. Defendant failed to file an appeal. He cannot litigate now what he should have done on appeal.

Moreover, none of the exceptions under Rule3:22-4 apply to warrant adjudication of defendant's claim that his guilty plea was involuntary. Defendant does not establish that he could not have reasonably raised the claim earlier; a fundamental injustice would result if the claim is barred; or denial of his PCR petition would violate federal or state constitutional law. R.3:22-4. Defendant fails to satisfy any of Rule 3:22-4's exceptions due to lack of factual support that his plea was involuntary.

Defendant's guilty plea conformed with all procedural requirements. The sentencing judge followed Rule3:9-2, which provides a judge may not accept a plea of guilty without first determining "there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." In accordance with State v. Slater, 198 N.J.145, 155 (2009) (citation omitted), defendant set forth in his own words that he committed first-degree kidnapping when he stated that he kept the victim from leaving her home by threating her with a knife.

Defendant contends his plea testimony did not establish the necessary facts to prove two key elements of first-degree kidnapping: moving the victim a substantial distance or confining the victim. We conclude there is no merit to these contentions.

First-degree kidnapping is established, in pertinent part, where a person "unlawfully removes another from his place of residence . . . , or a substantial distance from the vicinitywhere he is found, or if he unlawfully confines another for a substantial period" with the purpose to "facilitate commission of any crime . . . [.]" N.J.S.A.2C:13-1(b)(1). Defendant argues his plea did not state he removed the victim a "substantial distance" or that his actions represented "unlawful confinement to inflict bodily injury." This contention is without merit because the State was not required to prove that defendant removed the victim a substantial distance.

The next element of kidnapping challenged by defendant is unlawful confinement. As stated in the kidnapping statute, "confinement is unlawful . . . , if it is accomplished by force, [or] threat . . . ." N.J.S.A.2C:13-1(d). Defendant contends that his plea testimony did not establish unlawful confinement by force or threat to inflict bodily injury because he never explicitly stated he caused injury to the victim, but rather he only admitted to retrieving the knife. We are not persuaded by defendant's assertion.

Defendant admitted in his plea allocution that he retrieved a knife and used it to prevent the victim from leaving her residence. He confirmed that he never let the victim leave despite her repeated demands, and that she only became free when the police entered the house to rescue her. Thus, defendant provided the court with an adequate factual basis that he confined the victim by force and threat of injury in accordance with the kidnapping statutory definition.

Defendant's plea was also entered into voluntarily with the advisement of trial counsel. Plea bargains [596] may be accepted only if the court is assured that a defendant enters his plea "knowingly and voluntarily, that is with a full understanding of the charge and consequences of the plea." Slater, supra, 198 N.J. at 155; R.3:9-2.

Here, the record reflects that prior to defendant providing the factual basis for his guilty plea, the judge cautioned defendant to engage in thoughtful consideration before pleading guilty. The judge stated:

I'm giving you all your options from the standpoint that once we begin, sometimes, I'm not suggesting you, but sometimes certain people have a change of heart. I didn't understand, my lawyer didn't tell me this, the [c]ourt didn't tell me this, the prosecutor did this. And it's for your protection, as well as [counsel], the [p]rosecutor and me.

 

Defendant then requested time to discuss the plea with counsel. Following the discussion, a thorough colloquy ensued establishing that defendant completed the plea form, which contained the same information to which defendant testified at the plea hearing. Defense counsel noted that he had "gone over all the questions on the form" with defendant, including the supplemental NERA plea form. In response to the court's questions, defendant acknowledged that he reviewed the plea form with counsel, understood it, and admitted that he was pleading guilty because he committed the offense.2

For the foregoing reasons, we conclude that the PCR judge properly dismissed defendant's claim that his Fourteenth Amendment due process rights were violated because there was a sufficient factual basis for defendant's plea and the plea was entered into voluntarily.

III.

We next address defendant's arguments that his constitutional rights were violated because he had ineffective assistance of counsel. Defendant contends counsel failed to present the defenses of diminished capacity and intoxication; induced him to plead guilty to a crime he did not commit; and failed to present mitigating factors to lessen his sentence.

Our standard of review is "necessary deferential" to the findings of a PCR court so long as the findings are supported by sufficient credible evidence in the record. State v. Nash, 212 N.J. 518, 540 (2013).

As noted above, a defendant may seek PCR on the grounds that there was a substantial denial of his constitutional rights in the conviction proceedings. R.3:22-2(a). A claim of ineffective assistance of counsel is rooted in the Sixth Amendment of the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution, which guarantee a criminal defendant the right to an attorney. Washington, supra, 466 U.S. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d 692; Fritz, supra, 105 N.J. at 58. Allegations that counsel was so ineffective as to deprive a defendant of his right to counsel are properly raised in PCR proceedings because evidence of such allegations is often outside the trial record. Preciose, supra, 129 N.J. at 460.

A court reviewing PCR petitions based on claims of ineffective assistance should grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Id. at 462. "The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Reviewing courts retain discretion to conduct evidentiary hearings; however, it is not required that they must be granted. Preciose, supra, 129 N.J. at 462. When determining whether to grant an evidentiary hearing, the reviewing court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Id. at 462-63. If there are disputed issues as to material facts regarding entitlement to post-conviction relief, a hearing should be conducted. State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). However, bald assertions of ineffective assistance are insufficient to sustain a claim for PCR. Cummings, supra, 321 N.J. Super. at 170.

In order to establish a prima facie case of ineffective assistance, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d 693.

The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. The test is whether "counsel's conduct fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d 693. To set aside a guilty plea on the basis of ineffective assistance, a defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J.434, 457 (1994), cert.denied,516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)).

Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. To prove this element, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 699.

Defendant's first ineffective assistance claim is that counsel failed "to conduct an adequate pretrial investigation to consider the efficacy of presenting a diminished capacity defense[.]" Defendant maintains his "long history of substance abuse and mental health issues" and his extreme intoxicated state at the time of the incident prevented him from having the necessary mental state to commit first-degree kidnapping. He relies upon a medical assessment and a psychological evaluation, received eight years and one year, respectively, before the incident occurred documenting that he suffered from depression, anxiety disorder, and substance abuse. He asserts counsel neglected to have an evaluation performed by an appropriate expert that would have supported a diminished capacity defense. We conclude this argument is without merit.

The claim of diminished capacity is the defense that the State did not prove all the elements of the charges. State v. Reyes, 140 N.J.344, 354 (1995). The defense is codified in N.J.S.A.2C:4-2, which provides:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, [44] it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

 

The defense of intoxication, codified at N.J.S.A. 2C:2-8, provides in pertinent part that:

a. Except as provided in subsection d. of this section, intoxication of the actor is not a defense unless it negatives an element of the offense.

 

. . . .

 

d. Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.

 

To establish a defense of intoxication, a defendant must show that his mental faculties were so prostrated by substances in his body that he was incapable of forming the intent to commit the offense charged. State v. Cameron, 104 N.J. 42, 53-54 (1986).

Here, defendant has not presented a prima facie case of diminished capacity such that he was incapable of forming the necessary intent for first-degree kidnapping. As the PCR judge noted, none of the medical records submitted by defendant established a psychiatric disorder that rendered him incompetent or unable to know right from wrong at the time of the incident. Defendant's mere assertion that he was "extremely intoxicated at the time of the incident" does not negate an element of the offense. He does not proffer a medical expert's opinion that an element of the offense was negated at the time of the incident due to a mental disorder, substance abuse, addiction, or intoxication. Consequently, there is no basis to grant defendant's PCR petition on the grounds that counsel's performance was deficient for not pursuing a diminished capacity defense.

Defendant's second argument that counsel was ineffective is that counsel failed to present mitigating factors one (conduct neither caused nor threatened serious harm), two (not contemplate conduct would cause or threaten serious harm), three (acted under a strong provocation), four (substantial grounds tending to excuse or justify the conduct, though failing to establish a defense), five (victim of the conduct induced or facilitated its commission)and eleven (imprisonment would entail excessive hardship). N.J.S.A.2C:44-1(b)(1), (2), (3), (4), (5), and (11). This argument is without merit.

Defendant's argument rests upon his assertion that the harm to the victim was self-inflicted because of her own violent actions during the incident. Defendant claims that he was not the aggressor but merely reacting to the victim's conduct and attempting to prevent her from leaving the house with their child. In addition, he presumably contends that he was so intoxicated that he was unable to appreciate that his actions would cause harm to the victim. We agree with the PCR judge that the record before us does not establish that counsel was deficient for failing to argue the aforementioned mitigating factors.

Defendant provides no factual support for his self-serving contentions that his conduct was not threatening, that the victim was somehow responsible for his conduct, and that an excessive hardship would occur if he was sentenced in accordance with the negotiated plea agreement. SeeState v. Marshall, 148 N.J. 89, 158 (defendant not entitled to an evidentiary hearing where allegations are too vague, conclusory, and speculative), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

We also find it significant that the plea agreement contains the handwritten statement, "defendant waives his right to appeal if sentenced in accordance with the negotiated plea agreement." This was apparently acknowledged by the PCR judge when he stated that given the numerous charges and the gravity of the offenses defendant faced if he went to trial, the sentence of thirteen years subject to NERA represented a significant mitigation of defendant's imprisonment exposure. Defense counsel was able to reduce the State's initial plea offer of a twenty-year term to thirteen years. Even if the mitigating factors applied, there is no reason to believe the sentence would have been reduced. Thus, the PCR court properly rejected defendant's argument concerning counsel's failure to present mitigating factors at sentencing.

Lastly, defendant contends that counsel was ineffective in that he induced defendant to plead guilty to a crime defendant did not commit. We disagree and conclude the argument is without sufficient merit to warrant discussion in a written opinion pursuant to R.2:11-3(e)(2). We only add the following brief comments.

Defendant provided no evidence to support the contention that his counsel induced him to plead guilty to a crime he did not commit. He merely makes a bald allegation that counsel induced him to plead without any factual support. Id.As discussed above, the record demonstrates that the plea was entered willingly and voluntarily.

Affirmed.

 

 

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

2 In essence, defendant's PCR argument seeks a withdrawal of his plea. But defendant did not file a timely motion to withdraw his plea. Moreover, a plea can only be withdrawn after sentencing to correct a manifest injustice. R. 3:21-1. A defendant must articulate specific, credible facts that support a claim of innocence. Slater, supra, 198 N.J. at 159-60. For the reasons mentioned earlier, defendant has not met this burden.