STATE OF NEW JERSEY v. CORY J. BIENIEK

NOT FOR PUBLICATION WITHOUT THE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.

CORY J. BIENIEK,

Defendant-Appellant.

_________________________________

December 9, 2014

Submitted August 19, 2014 Decided

Before Judges Nugent and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-04-0580.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Cory J. Bieniek appeals a Law Division, Criminal Part order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

The factual background of this case is succinctly set forth in the Supreme Court's decision affirming defendant's sentence

This appeal arose from a tragedy that took place on December 29, 2006. That day, twenty-one-year-old Samar Seliem was killed when she backed her car out of her driveway on Marlboro Road in Old Bridge and was struck by a vehicle driven by nineteen-year-old defendant Corey Bieniek.

. . . .

When his vehicle struck Seliem's, defendant was driving over one hundred miles per hour on a street with a speed limit of twenty-five miles per hour. In addition to killing Seliem, the collision caused defendant's passenger, Kristine Makowa, to suffer multiple leg fractures requiring surgery. Prior to the collision, defendant had consumed alcoholic beverages and smoked marijuana. His blood alcohol level one hour after the crash was .17 percent, well in excess of the legal limit of .08 percent.

Defendant was indicted for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one); first-degree vehicular manslaughter on or near school property, N.J.S.A. 2C:11-5(a) and (b)(3) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); and second-degree assault by automobile on or near school property, N.J.S.A. 2C:12-1(c)(1) and (3) (count four). On August 6, 2007, before the Honorable James F. Mulvihill, J.S.C., defendant pled guilty to count one, first-degree aggravated manslaughter; to count three, second-degree aggravated assault; and also to a summons charging him with driving while intoxicated, N.J.S.A. 39:4-50. In exchange for defendant's guilty pleas, the State dismissed counts two and four and agreed to recommend an eighteen-year sentence in state prison for count one, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to recommend that the sentence for count three run concurrently with the sentence for count one.

. . . .

. . . The court sentenced defendant to an eighteen-year term--the sentence recommended by the State pursuant to the plea agreement -- and subsequent five-year period of parole supervision on count one, with a concurrent five-year term and subsequent three-year period of parole supervision on count three, both subject to an eighty-five percent parole disqualifier. The court dismissed counts two and four.

[State v. Bieniek, 200 N.J. 601, 604-606 (2010).]

The procedural history of this case is also detailed in the Supreme Court's opinion and need not be repeated here, other than to note that one and one-half years after the Supreme Court affirmed defendant's sentence, he filed the PCR petition that is the subject of this appeal. Thereafter, he amended the petition and filed a supplemental certification.

In his supplemental certification, defendant alleged that his plea counsel "failed to explain the penal consequences of my plea and misled me about the prison time I would receive at the time of sentencing." Specifically, defendant averred that though he was aware he could receive "up to [eighteen] years in State Prison, my attorney told me repeatedly that this was only the maximum and that [the sentencing judge] would not be giving me that much time. My attorney stated that based upon my numerous mitigating factors I would get a [twelve] year prison term." Defendant also alleged that his attorney said he knew the sentence would be twelve years based on numerous conferences with the sentencing judge, and if he, defendant, had been told that he would receive an eighteen-year prison term, he would not have entered the plea, but instead would have gone to trial.

In an opinion delivered from the bench, the judge who heard argument on defendant's PCR petition denied it. The judge found "nothing in the record" that supported defendant's claim that his counsel told him he would receive a twelve-year sentence. The judge also found that defense counsel had represented defendant "very, very artfully" based on defendant's exposure to a forty-year prison term. Citing the plea forms and plea colloquy, the PCR judge characterized defendant's statements during the guilty plea colloquy as "saying I can lie to the [j]udge, lie under oath to the [j]udge and tell them I recognize that I could be sentenced to eighteen years."

The PCR judge would "not accept that perjury as a justification for post[-]conviction relief. Unless there is more than the bald face assertion, unless there is more than . . . lying under oath." The judge denied the petition and defendant appealed from the implementing order.

In this appeal, defendant raises a single point

LEGAL ARGUMENT

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS BY MISLEADING HIM REGARDING HIS SENTENCE.

To prove a claim that counsel was ineffective, a defendant must establish that "counsel's performance was deficient[,]" that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland 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) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Defendants are not necessarily entitled to an evidentiary hearing on such claims.

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief."

[R. 3:22-10(b).]

When considering whether a defendant is entitled to a hearing, "[a]s in a summary judgment motion, the [] judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant contends his guilty plea was not a product of free will and his "trial counsel's allegedly misleading [him] regarding his sentence effectively negated his guilty plea by establishing a prima facie case of trial counsel's ineffectiveness." He also contends the court's "denial of the evidentiary hearing was predicated upon its finding [him] not to be credible and preserving the 'integrity' of trial counsel [without] the benefit of an evidentiary hearing designed to assess the credibility of witnesses[.]"

We agree with the general proposition that a PCR court cannot assess the credibility of a defendant and make credibility determinations without evaluating a defendant's testimony at an evidentiary hearing. Here, however, the PCR judge based his decision on defendant's averments in his supplemental certification that contradicted his sworn testimony at the plea hearing. At the plea hearing, after explicitly restating the terms of the plea agreement that had been explained to him by defense counsel and the prosecutor, the court asked defendant, "[s]o, Mr. Bieniek, did you hear me go over the terms of the plea agreement with your attorney . . . ?" Defendant acknowledged he had heard the court review the terms of the plea agreement. The court then asked: "All right. And any other promises made to you, sir?" The defendant replied, "no, sir."

Defendant also acknowledged that he had reviewed the plea form with his attorney. The court then carefully and comprehensively questioned defendant about whether his plea was being voluntarily entered and asked defendant if he had any questions for his attorney, the prosecutor, or the court. The court also noted that defendant's parents were present, and defendant acknowledged that he had discussed the plea with his parents. He has not submitted certifications from them.

Significantly, defendant has not explained why, in response to the court's questions during the guilty plea colloquy, he did not state that his attorney had represented to him that he would receive a twelve-year sentence. As the Supreme Court has noted,

representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a "formidable barrier" which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977). That is so because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid.; [DiFrisco, supra, 137 N.J. at 452].

[State v. Simon, 161 N.J. 416, 444 (1999) (alteration in original).]

Defendant told the court, under oath, that with the exception of the terms of the plea agreement no one had made any other promises to him. He now claims, implicitly, that his statement was false. He does not, however, attempt to explain why he made the false statement to the court at the plea proceeding. Absent any explanation as to why he made the false statement, defendant has failed to overcome the "formidable barrier" created by solemn declarations in open court and has failed to establish a prima facie case that he has satisfied the first Strickland prong.

Defendant has also failed to establish a prima facie case as to the second Strickland prong. Defendant asserts: "Had I been told that I would receive an [eighteen] year prison term, I would not have entered the plea, but instead would have gone to trial." Defendant does not support that assertion with any explanation. To establish a prima facie case that trial counsel was ineffective, a defendant must do more than make bald assertions. Cummings, supra, 321 N.J. Super. at 170.

Here, defendant does not dispute that he was facing a maximum prison term of forty years, thirty for aggravated manslaughter, N.J.S.A. 2C:11-4(c), and ten for second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and 43.6(2). The State's evidence was overwhelming. Defendant was operating a motor vehicle at 100 miles per hour in a twenty-five mile per hour residential zone after smoking marijuana and consuming alcohol. Post-accident testing of defendant's blood revealed a blood alcohol concentration of .17 percent. In view of the strength of the evidence that the State would have presented at trial, and the possibility of a maximum forty-year prison term, defendant's failure to explain why he would have rejected a plea that carried a maximum eighteen-year custodial term is insufficient to establish that there is a reasonable probability, but for counsel's errors, that he would not have pled guilty and would have insisted on going to trial.

Because defendant failed to establish either Strickland prong, he was not entitled to an evidentiary hearing on his PCR petition. Accordingly, we affirm the PCR judge's order.

Affirmed.