STATE OF NEW JERSEY v. CHRISTOPHER D DEMUNGUIA

NOT FOR PUBLICATION WITHOUT THE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.

CHRISTOPHER D. DEMUNGUIA, a/k/a

CHRISTOPHER DEMUNGUIA, CHRIS

DEMUNGUIA, CHRISTOPHER DAVID

DEMUNGUIA, CHRISTOPHER DEMUNGIA,

CHRISTOPHER DEMUNGIA, CHRISTOPHER

DEMUNEVIA, CHRISTOPH DeMUNGUIA,

and CHRISTOPHER DE MUNGUIA,

Defendant-Appellant.

__________________________________

December 8, 2014

Submitted November 10, 2014 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1534.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Christopher D. Demunguia1 appeals the trial court's denial of his petition for post-conviction relief ("PCR") from his 2010 conviction of various criminal offenses. We affirm.

The pertinent background arises out of two successive plea agreements. First, defendant pled guilty in January 2010 to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), for injuries to an individual named Timothy Hagen.

According to the plea colloquy and other documents in the record, the first assault took place outside of a pub in Gloucester City on January 17, 2009. After an argument with Hagen, defendant punched him in the face and then kicked Hagen in the neck while he was on the ground. The blows broke Hagen's jaw, which was wired shut at a hospital where Hagen was admitted for several days. Hagen was unable to work for about two weeks. Defendant contended that he struck Hagen in order to prevent him from hitting another person, but that claim was contradicted by the accounts of Hagen and other eyewitnesses.

Second, defendant pled guilty in March 2010 to third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). These offenses occurred on February 15, 2009, when police officers apprehended defendant inside of the same pub. Defendant resisted the arresting officers, head-butting one of them and causing that officer rib injuries.

As part of its plea agreement with defendant, the State agreed to recommend a five-year sentence on the second-degree offense, subject to the parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, plus concurrent three-year terms on the two third-degree offenses. The trial court sentenced defendant on May 6, 2010, which was consistent with the State's recommendations. Defendant did not take a direct appeal of his sentence.

Defendant then filed the present PCR application, alleging ineffective assistance of his plea counsel. The PCR application was considered by the Hon. Anthony M. Pugliese, J.S.C., the same judge who had accepted defendant's guilty pleas and who had sentenced him. Judge Pugliese rejected the petition without an evidentiary hearing.

In appealing the PCR denial, defendant raises the following points in his brief

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S APPROVAL OF DEFENDANT PLEADING GUILTY TO A CRIME HE DID NOT COMMIT; TRIAL COUNSEL'S FAILURE TO DEVELOP A DEFENSE; AND TRIAL COUNSEL'S FAILURE TO PRESENT A MITIGATING FACTOR ARGUMENT AT SENTENCING CONSTITUTES PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

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

The law is well settled. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-88, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (1984).

To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant claiming ineffectiveness of his plea counsel must establish with "reasonable probability" that the result would have been different had he received proper advice from that attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07.

Defendant's main argument is that his former attorney carelessly allowed him to plead guilty to second-degree aggravated assault, when there was allegedly inadequate proof that Hagen sustained "serious" bodily injury as required by the statute. Defendant also argues that the factual basis elicited from him during the plea colloquy allegedly did not elicit sufficient facts to show that defendant intended to inflict such a serious injury.2 Judge Pugliese rejected these arguments, and so do we.

The record shows without contradiction that Hagen had his jaw wired shut after defendant struck him. The harm satisfies the statute's element of serious bodily injury "which causes . . . protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b); see also State v. Villar, 150 N.J. 503 (1997) (comparably finding that the "serious bodily injury" element was satisfied where the defendant had struck the victim in the mouth, split her lip, and broke her tooth). The plea colloquy provided a sufficient factual predicate for this offense.

Defendant also complains that his plea counsel failed to investigate and discuss with him adequately the potential for a claim of self-defense or the defense of others. This argument is belied by the representations made on the record at the plea hearings that show that defendant specifically opted to waive such a defense after speaking with his counsel.

Lastly, defendant complains that his counsel did not argue any mitigating factors at sentencing and should have. This argument must fail for at least two reasons. For one thing, as a procedural matter, the law disfavors a defendant from reviving such sentencing contentions in a PCR under the guise of ineffective assistance of counsel. R. 3:22-4(a); State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd in part, rev'd in part, 162 N.J. 240 (2000); State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). In addition, the record fails to present any mitigating evidence that would have realistically affected the sentence.

There was no need for the trial court to have conducted an evidentiary hearing on defendant's PCR claims, as he failed to set forth a prima facie case of his prior counsel's ineffectiveness. See State v. Preciose, 129 N.J. 451, 463 (1992); cf. State v. Jones, 219 N.J. 298 (2014) (requiring a PCR hearing where a defendant raised significant alibi issues). Moreover, the sentence imposed was at the bottom of the second-degree range, despite the fact that defendant had five prior adult convictions.

We affirm the denial of defendant's petition, essentially for the reasons expressed by Judge Pugliese in his February 15, 2013 bench ruling.

Affirmed.

1 As the caption reflects, defendant's name is identified and spelled in a variety of ways in the record.

2 Defendant also argues in the body of his brief that his trial counsel was ineffective in allowing him to plead guilty to the third-degree offenses without a corresponding benefit. Because this argument was not identified in a point heading, it has not been correctly presented on appeal. See R. 2:6-2(a)(5). In any event, defendant's assumption that the prosecutor would have been willing to negotiate more favorable terms concerning those charges is speculative. We also note that the trial court did not impose consecutive terms for those offenses.