STATE OF NEW JERSEY v. JOHN LOPEZ

NOT FOR PUBLICATION WITHOUT THE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 LOPEZ,

Defendant-Appellant.

August 20, 2014

Before Judges Sapp-Peterson and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-03-0560.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Ashley L. Behre, on the brief.

PER CURIAM

Defendant John Lopez appeals from an order entered by the Law Division on May 30, 2012, denying his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal. On March 17, 2004, a Monmouth County Grand Jury charged defendant with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); second-degree possession of a weapon, a firearm, for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count five); and fourth-degree possession of a weapon, a firearm, by a prohibited person, contrary to N.J.S.A. 2C:39-7(a) (count six). Co-defendant, Maloy Amador, was also charged in the first five counts of the indictment. The indictment alleged that the criminal acts charged against defendant and Amador occurred on or about July 29, 2003. Co-defendant Tara Jones was charged in the seventh count of the indictment with third-degree hindering the apprehension of defendant, N.J.S.A. 2C:29-3.

The indictment stemmed from a shooting that occurred on July 29, 2003, in Eatontown. On that date, defendant saw two men sitting at a table behind a house on Richardson Avenue. Defendant knew one of the men from a previous encounter a few years prior, in which defendant claims the man robbed and choked him. Defendant also claims the other man was present during that incident. Defendant was still holding a grudge against the men, and went home to the apartment he shared with his parents to retrieve two handguns, a 9 millimeter and a .45, to shoot them. Upon arriving at his apartment complex, defendant saw co-defendant Amador and told him about his plan to go to the house on Richardson Avenue to confront the two men. Defendant took the .45 and gave Amador the 9 millimeter. The men then went together to confront the men.

After a brief conversation, defendant suddenly drew his .45 handgun and opened fire, shooting the man he claimed had robbed and choked him numerous times. At the same time, Amador used the 9 millimeter handgun to shoot at the other man, who had started running away.

After the shooting, defendant fled to Brooklyn, New York. The victim survived the shooting but spent two weeks in the hospital recovering from his gunshot wounds. Defendant was finally arrested in Norfolk, Virginia on August 23, 2003, pursuant to a New Jersey warrant of arrest for extradition. On November 3, 2003, defendant signed a waiver of extradition form in Virginia. On March 30, 2004, the Law Division issued a bench warrant for defendant's arrest that was lodged as a detainer. On April 29, 2004, defendant requested extradition to New Jersey by signing an Agreement on Detainers Form 2, pursuant to N.J.S.A. 159A-3. On June 6, 2004, defendant was extradited to New Jersey.

On August 12, 2004, in accordance with an executed plea agreement, defendant entered a plea of guilty to counts one and two of the indictment, charging him with first-degree conspiracy to commit murder and first-degree attempted murder. In exchange, the State agreed to request dismissal of the remaining charges against defendant in the indictment, and to recommend that he receive a maximum sentence of thirteen years' imprisonment, subject to an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to testify truthfully in the trial of his co-defendant, Amador, if necessary.

Defendant was not sentenced until the charges against his co-defendants were resolved; on March 9, 2007, defendant was sentenced by the Law Division, in accordance with the plea agreement. On June 25, 2007, defendant filed a notice of appeal from the sentence imposed, specifically challenging that portion of the judgment of conviction requiring him to pay $281.40 restitution to the State for the cost of extradition. We affirmed the judgment of conviction and sentence imposed, "in all respects other than restitution," and remanded solely for a restitution hearing1 and the resulting entry of an amended judgment of conviction. State v. Lopez, No. A-5600-06 (App. Div. October 22, 2009) (slip op. at 7-8).

On June 24, 2011 defendant filed the petition for PCR under review. In his petition, defendant asserted his right to effective counsel was violated because his trial counsel failed to file a motion to dismiss his indictment based on an alleged violation of the Interstate Agreement on Detainers Act (IAD), and his appellate counsel failed to raise the issue on direct appeal. After hearing oral argument, Judge Francis J. Veronia denied defendant s petition in its entirety, without an evidentiary hearing. This appeal followed.

II.

Defendant raises the following points on appeal:

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL S FAILURE TO MOVE TO DISMISS THE INDICTMENT PURSUANT TO THE INTERSTATE AGREEMENT ON DETAINERS ACT, AND APPELLATE COUNSEL S FAILURE TO RAISE THIS ISSUE ON DIRECT APPEAL, RESULTED IN A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II THE 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 conclude that these arguments are without merit, and affirm the denial of PCR substantially for the reasons stated by Judge Vernoia in his thorough and comprehensive written opinion of May 30, 2012. We add the following.

A defendant's claim of ineffective assistance of counsel is considered under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which has been adopted by our Supreme Court for consideration of ineffective-assistance-of-counsel claims raised under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland test, a defendant must show that his attorney's performance was deficient and he was prejudiced by the attorney's errors. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

To establish that his attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In addition, to show that he was prejudiced by the deficient performance of his attorney, a 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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. State v. Preciose, 129 N.J. 451, 462-64 (1992). In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

Defendant here has failed to present a prima facie case for ineffective assistance of counsel. As Judge Veronia explained,

[defendant] has not presented a prima facie case of ineffective assistance of counsel based upon the purported failure of his attorneys to assert an IAD defense to the charges in the indictment. . . . [N]o such defense was available based upon the undisputed facts. Because no such defense was available under the IAD, his attorneys did not fall "outside the wide range of professionally competent assistance" by failing to raise it or by failing to file a motion asserting it.

. . . .

[Defendant] did not, and could not, meet his burden under the circumstances presented here because he entered his plea of guilty before the October 26, 2004 deadline under the IAD. At the time his plea was entered, his attorney had no basis to make a motion to dismiss the indictment based upon any alleged IAD violation. Once the plea was entered, the subsequent passing of the applicable IAD time deadline was immaterial because the deadline no longer applied.

Defendant was provided effective assistance of counsel; raising the issue under the guise of the United States Constitution does not change the undisputed facts in the case. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid. Because defendant has failed to identify any mistaken exercise of the trial court's discretion, we affirm the denial of PCR.

Affirmed.

1 We explained, "the authority for imposition of restitution for extradition costs contained in N.J.S.A. 2C:43-3.4, is discretionary with the court, and requires a hearing to consider, inter alia, the ability of defendant to pay or, if given a fair opportunity, his future ability to pay restitution, see N.J.S.A. 2C:44-2(b)(2), the financial resources of the defendant and the nature of the burden that its payment will impose, as well as the defendant's likely future earnings, see N.J.S.A. 2C:44-2(c)." Ibid.