STATE OF NEW JERSEY v. JUAN DIAZ

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5515-12T40

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN DIAZ, a/k/a MARGARITO DIAZ,

Defendant-Appellant.

____________________________________

August 28, 2014

Submitted August 4, 2014 Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-11-1391.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Acting Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Juan Diaz appeals from the denial of his petition for post-conviction relief (PCR). Defendant seeks to set aside his conviction and vacate his guilty plea because he was denied effective assistance of counsel. We affirm.

These facts are found in the PCR record. The victim, William Hill, went inside a Passaic bodega to confront the persons who had shortly before "disrespected" his pregnant wife. Hill, for reasons allegedly unknown to defendant, started punching him. Defendant pulled out a gun and shot Hill multiple times in the back of the head and face.

A grand jury indicted defendant on one count of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2) (count one), one count of second-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4 (count two), and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Defendant entered into a negotiated plea agreement, which called for him to plead guilty to an amended charge of aggravated manslaughter, N.J.S.A. 2C:11-4(a). In exchange, the State agreed to dismiss all other charges and to recommend that petitioner receive a twenty-three-year term of incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced defendant in accordance with the plea agreement. In addition the court imposed the requisite fines and penalties, and also ordered defendant to pay restitution. Defendant did not file a direct appeal.

On appeal, he raises one point:

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL COERCED PETITIONER TO ENTER A GUILTY PLEA, AND THE TRIAL COURT FAILED TO HOLD AN EVIDENTIARY HEARING, FAILED TO VACATE THE GUILTY PLEA, IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.

We have considered defendant's arguments in light of the record, briefs submitted, and governing legal principles, and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the cogent reasons expressed by Judge Ernest M. Caposela, in his March 1, 2013 written opinion. We add the following comments.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).

It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result.

[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013) (citations omitted).]

New Jersey has adopted Strickland's1 two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that counsel was so deficient, "counsel was not functioning as the counsel guaranteed by the Sixth Amendment. . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). "This test requires [a] defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). When seeking to set aside a guilty plea, the court also examines whether a defendant "receive[d] correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).

To meet the second prong, "[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." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. See also Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1384, 192 L. Ed. 2d 398, 406-07 (2012) (applying the "reasonable probability" test in the context of alleged deficient performance of counsel in a plea negotiation). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In the context of a guilty plea, this prong is satisfied when a defendant establishes a reasonable probability he would not have pled guilty, but for counsel's errors. Hill v. Lockhart, 473 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); Gaitan, supra, 209 N.J. at 351.

In his PCR petition, defendant claimed his defense counsel "threatened me to accept the guilty plea or else I would be facing up to sixty years in state prison." He also stated that the conditions at the Passaic County jail were poor and that his attorney told him it would take at least two years before his trial would take place.

In denying defendant's application, Judge Caposela determined defendant's allegations were insufficient to justify PCR. He noted that, assuming defense counsel provided that estimated time frame for going to trial and that potential custodial exposure, as defendant alleges, this did not constitute "misleading advice."

In addition, the PCR court found that defendant's only chance "for an acquittal on the murder charge was to successfully present a self-defense argument[,]" which was not likely to succeed because the record established that defendant used deadly force to retaliate against non-deadly force. The PCR judge also found, based upon his review of the plea proceedings, defendant was fully aware that he faced a thirty-year sentence on the murder charge and never proclaimed his innocence or that he did not understand the consequences of his plea.

Finally, Judge Caposela noted defendant expressed remorse for what happened on the date in question. Defendant asserted that he knew he made a mistake and was wrong for what he did and personally expressed his apologies to the victim's family. Given these various considerations, the judge concluded defendant failed to satisfy the requirements for post-conviction relief.

Defendant's PCR petition is void of proofs establishing ineffective assistance of counsel. His claim that he pled guilty because of his concerns about the conditions in the Passaic County Jail, the time it would take to go to trial and a possible sixty-year period of incarceration are belied by his sworn testimony during the plea hearing. At the outset of the hearing he was advised that he faced a maximum exposure of "life in prison with 30 years before parole." He denied that he was being forced to plead guilty and acknowledged that he was pleading guilty because he was, in fact, guilty. At sentencing defendant expressed remorse for what happened on the date in question. Defendant asserted that he knew he made a mistake and was wrong for what he did and personally expressed his apologies to the victim's family. The judge properly concluded defendant failed to establish a prima facie case of ineffective assistance of counsel. As such, defendant was not entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 463.

A defendant cannot rely on simple allegations of inadequate performance, such as failure to interview witnesses or failure to obtain a psychological examination. Fritz, supra, 105 N.J. at 64-65. Rather, adefendant must establish the right to PCR by a preponderance of the credible evidence. Preciose, supra, 129 N.J.at 459. In this regard, a defendant must articulate "specific facts" that "provide the court with an adequate basis on which to rest its decision" that the defendant established a prima facie case of ineffective assistance of counsel. State v. Mitchell, 126 N.J. 565, 579 (1992). Bald assertions, unaccompanied by evidential support, are insufficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (noting that PCR relief requires more than "bald assertions" by a defendant), certif. denied, 162 N.J. 199 (1999).

We reject defendant's contention the PCR judge erred in denying his request for an evidentiary hearing. An evidentiary hearing should be held only when a PCR petition presents material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J.72 (1999). A court has no obligation to grant a request for a hearing when it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J.89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); see alsoR.3:22-10(e)(2) (stating that evidentiary hearings are unnecessary if "defendant's allegations are too vague, conclusory or speculative").

We conclude, from our review of the record, defendant failed to present a prima facie case of ineffective assistance of trial counsel. Accordingly, the PCR court correctly denied defendant's request for an evidentiary hearing. See Preciose, supra, 129 N.J. at 462-63.

Likewise, defendant's attempt to withdraw his guilty plea, which are essentially based upon the same allegations he asserts in his PCR petition constitutes ineffective assistance of counsel, are equally without merit. As Judge Caposela found, defendant failed to meet the requirements for withdrawal of his plea under State v. Slater, 198 N.J. 145, 150 (2009). As Judge Caposela noted, defendant does not assert his innocence, but the purported pressure exerted upon him by his defense counsel into pleading guilty. As we have stated earlier, this contention is belied by the record of the plea and sentencing proceedings. In addition, his plea was entered as part of a negotiated plea agreement. This was not a situation where there was "compelling evidence of [defendant's] innocence that was available but neglected by [defense counsel]" resulting in an overlapping of the standards for granting post-conviction relief and the standards for withdrawal of a guilty plea. State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014). Accordingly, the trial court properly denied defendant's belated request to withdraw his guilty plea.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984).