STATE OF NEW JERSEY v. JOSEPH RIVERA

NOT FOR PUBLICATION WITHOUT THE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.

JOSEPH RIVERA,

Defendant-Appellant.

_______________________________________________

May 2, 2014

Submitted December 17, 2013 Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-10-2335.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth A. Harrigan, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On December 3, 2007, defendant Joseph Rivera pled guilty to two counts of Atlantic County Indictment No. 07-10-2335: count fourteen, charging him with second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1),(b)(2); and count fifteen, charging him with first-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1),(b)(1).1 The State agreed to dismiss the remaining counts of the indictment as to defendant, and the entirety of the indictment as to his co-defendant, Marlyn Rivera.2 Additionally, the State agreed to recommend concurrent sentences that did not exceed twelve years with a five-year period of parole ineligibility.

During the plea proceedings, defense counsel initially noted that count fifteen, which alleged that defendant had sold more than five ounces of cocaine on various dates between May and June 2007, was the "most problematic" charge. Counsel noted that "tapes" existed of "wired conversations" between defendant and a confidential informant (CI) whose identity was "probably" known to defendant. Without explicitly saying that he had listened to the recordings, trial counsel told the judge that "[a]ll they'll do is corroborate pretty much what is already in the written investigat[ive] reports." Counsel indicated that he advised defendant he could obtain the recordings and the grand jury minutes "at [defendant's] expense."

Trial counsel noted, however, that the State had made a "reasonable offer," particularly since defendant, who had a prior conviction "for the same thing," faced a mandatory extended term of imprisonment if convicted. See N.J.S.A. 2C:43-6f. However, defendant "articulated his desire not to accept the offer" and obtain other counsel. Counsel also told the judge and the prosecutor of defendant's "counteroffer," an aggregate term of ten years' imprisonment with a four-year period of parole ineligibility.

The prosecutor's response was to outline the State's proofs. He stated defendant engaged in "six transactions" at his residence with the CI. He also stated that defendant knew the identity of the informant based on threats the CI had received and reported to law enforcement. The prosecutor told defendant and the judge that if the plea offer was rejected, "it ll go up . . . ." He offered to obtain copies of the tapes and furnish them to counsel.

After the judge addressed him directly, defendant stated that he wanted to "see if [he] could get an offer that [would] be less." The prosecutor refused, and the judge apparently adjourned the proceedings for lunch. When court reconvened, defendant was placed under oath. It suffices to say the transcript reveals that defendant provided a full factual basis for the guilty pleas, and knowingly and voluntarily pled guilty.

At sentencing on February 15, 2008, defendant requested the services of an interpreter.3 Defense counsel expressed surprise, noting, "I have spoken to [defendant] without any difficulty." The prosecutor referenced a letter written in English that defendant sent to him. The judge determined "we can deal with [defendant] without an interpreter," but nonetheless, an interpreter was sworn and read defendant's letter into the record.4 In that correspondence, defendant claimed police broke down the door of his home when they executed the search warrant. Among other things, he also stated that discovery was incomplete, the grand jury minutes and recordings were not supplied and no motion to suppress was filed by trial counsel.

The prosecutor indicated that plea negotiations had been ongoing since before the indictment was returned. He further stated that if defendant insisted on filing a motion to suppress, the State would "have to move to the maximum Brimage5 offer[,]" as opposed to the minimum offer defendant accepted. Defense counsel stated:

[The prosecutor's] representations are correct. We discussed it pre-indictment. [Defendant is] first degree [Brimage]. . . . [He] was made well aware of that. . . . [H]e was made well aware of the fact, should we file the motion, which was his right to do . . . , it would result in immediate termination of the minimum Brimage offer, result in a greater offer if and when the motion should be denied . . . and . . . [d]efendant was aware of that when he enter[ed] the guilty plea . . . .

[T]he Grand Jury minutes and things, I advised . . . [d]efendant at his expense, if he wants me to obtain, I could do so. I did not do so since the family did not pay me for those additional services. I advised him the Grand Jury minutes would constitute hearsay by the officer as to what took place. . . .

. . . .

. . . Defendant was made aware . . . of all the circumstances which lead up to the [p]lea [a]greement. You have two choices. Accept the [p]lea [a]greement or have the offer go up irretrievably and he authorized it and entered a knowing . . . and voluntary factual basis . . . .

The judge, characterizing defendant's comments as "buyer[']s remorse," imposed sentence in accordance with the plea bargain.

Defendant's appeal was limited to the sentence imposed and heard on our Excessive Sentence Oral Argument calendar. We affirmed. State v. Joseph Rivera, No. A-1741-08 (App. Div. May 13, 2010).

On August 26, 2010, defendant filed a pro se petition for post-conviction relief (PCR) in which he made many claims regarding the execution of the search warrant, as well as the State's alleged failure to supply items in discovery and alleged contradictions in discovery that was supplied. Defendant also asserted that trial counsel provided ineffective assistance.

PCR counsel was appointed and filed a brief in support of defendant's petition. He essentially argued that trial counsel provided ineffective assistance because he failed to obtain relevant discovery, in particular the recordings of conversations between defendant and the CI, as well as statements the confidential informant gave to law enforcement following the numerous "controlled buys" of CDS from defendant. Trial counsel also provided ineffective assistance because he failed to challenge the search warrant, and failed to challenge an out-of-court "show up" during which police had the CI identify a single photo of defendant. Lastly PCR counsel claimed defendant was denied his due process rights because trial counsel failed to "ensure that an interpreter was present during court hearings."

Oral argument on defendant's petition took place on March 1, 2012 before the PCR judge, who was not the trial judge. In an oral opinion that followed, the judge extensively reviewed the transcript of defendant's guilty plea. He determined that trial counsel fully advised defendant of the terms of the plea bargain, and the State's intention to increase the offer at the next proceeding if defendant rejected the offer. The PCR judge concluded that defendant made a voluntary and knowing decision to accept the State's plea offer. The PCR judge also found "no fault whatsoever with . . . trial counsel," and denied the petition. This appeal followed.

Defendant raises the following points for our consideration:

POINT I

THE TRIAL JUDGE ERRED BY NOT ALLOWING DEFENDANT TO WITHDRAW HIS PLEA SINCE HE WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL FAILED TO OBTAIN AND REVIEW RELEVANT DISCOVERY PRIOR TO ENTERING A PLEA.

B. TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE INFORMATION TO CHALLENGE THE SEARCH WARRANT AND THE GROUNDS FOR A MOTION TO SUPPRESS THE EVIDENCE.

C. TRIAL COUNSEL FAILED TO CHALLENGE THE OUT OF COURT INDENTIFICATION OF DEFENDANT.

D. TRIAL COUNSEL FAILED TO ENSURE THAT DEFENDANT HAD INTERPRETERS AT HIS PRETRIAL HEARINGS.

POINT II

DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL FOR HIS APPELLATE PROCEEDINGS.

In a pro se supplemental brief that lacks any point headings, defendant argues that the State failed to provide him with discovery, law enforcement officials made false statements in the affidavit that led to the issuance of a search warrant and the trial judge failed to properly consider his request for further information prior to accepting his guilty plea.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "To meet prong one, a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J. 123, 147 (2011) (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95).

To satisfy the second prong of the Strickland/Fritz test, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. The Court has said that

[w]hen a guilty plea is part of the equation . . . , a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) '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.'

[State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]

"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). "To establish a prima facie case, a defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b); see also State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (same). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).

We initially note that the record fails to reveal that defendant ever sought to withdraw his guilty pleas. Additionally, defendant has never claimed that but for trial counsel's alleged deficient performance, he would have rejected the plea bargain and insisted on going to trial. In fact, the record evidence indicates only that defendant wanted his "counteroffer" to be accepted, resulting in a lesser term of imprisonment and period of parole ineligibility.

Defendant contends in Point IA and IB that trial counsel provided ineffective assistance because he failed to obtain and review recordings of conversations defendant had with the CI, and because he failed to fully investigate the circumstances surrounding the investigation that led to the execution of the search warrant at defendant's residence. We reject these claims.

"An ineffective assistance of counsel claim may occur when counsel fails to conduct an adequate pre-trial investigation." State v. Porter, 216 N.J. 343, 352 (2013) (citations omitted). However, "[c]ounsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.' In contrast, strategic choices made after a limited investigation are assessed for reasonableness, with great deference given to counsel's professional judgments." State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). (second alteration in original) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Porter, supra, 216 N.J. at 353 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing R. 1:6-6), certif. denied, 162 N.J. 199 (1999)).

As noted, it is unclear from the record whether trial counsel had listened to the recordings or not. In any event, it is quite clear that he had thoroughly reviewed the discovery provided and concluded that, based upon those reports, it was unlikely that the recordings would be helpful. He reached a similar conclusion regarding the hearsay testimony that supported the State's case before the grand jury.

Even if we were to conclude counsel's performance was deficient, defendant, who could compel production of the State's file even after conviction, has not demonstrated how the recordings or the grand jury testimony would impeach the State's formidable case against him, or how they would provide a means to attack the search warrant that led to his arrest and seizure of evidence in his residence.

The arguments raised in Point IC and ID lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). The out-of-court identification at issue involved police showing the CI a Motor Vehicle Commission photograph of defendant, who the CI then identified as the person who sold him cocaine. It is extremely unlikely that the CI would have ever testified at trial. Moreover, even if the CI was wrong about the identification and someone else sold him drugs inside defendant's residence, we fail to see how that would negate the finding of probable cause that supported the issuance of the search warrant. Thereafter, defendant was arrested when police, armed with a search warrant, raided his home and found additional cocaine.

An interpreter was provided for defendant during the plea and sentencing proceedings, even though the record clearly indicates he was fluent in English. The claim that his due process rights were violated lacks any merit.

Lastly, defendant's claim of prejudice must be weighed against the highly favorable plea bargain trial counsel negotiated. Defendant was convicted in 1993 of CDS offenses and sentenced to a fifteen-year term of imprisonment. The Pre-Sentence Investigation report reveals that defendant "maxed on his sentence" in 2003. If convicted at trial on the charge contained in count fifteen, defendant faced a mandatory extended term, including a possible life-sentence.

In Point II, defendant claims appellate counsel provided ineffective assistance by only appealing his sentence and failing to argue that defendant should have been permitted to withdraw his plea. The argument was never made before the PCR judge. "An appellate court ordinarily will not consider issues that were not presented to the trial court[.]" State v. Arthur, 184 N.J. 307, 327 (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Nevertheless, the argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As already noted, it suffices to say that defendant never moved to withdraw his guilty pleas.

Affirmed.

1 The State supplied a transcript from earlier proceedings dated November 26, 2007, where the State's plea offer was discussed and the prosecutor agreed to maintain the offer for defendant's further consideration. An interpreter was not present, however, there is nothing to indicate that defendant did not understand what was occurring.

2 The State alleged that Marlyn Roman was defendant's "girlfriend/wife," or "paramour."

3 The transcript from the guilty plea hearing reveals that an interpreter was present during at least some of the proceedings.

4 The letter is not part of the record.

5 State v. Brimage, 153 N.J. 1 (1998). "[T]he Attorney General Guidelines, often referred to as the 'Brimage Guidelines,' were promulgated at the direction of the Supreme Court in Brimage to assure uniformity. State v. Bishop, 429 N.J. Super. 533, 549 (App. Div.) (citing Brimage, supra, 153 N.J. at 23), certif. granted, 216 N.J. 14 (2013). Among other variables, the prosecutor is authorized to consider whether the offer is to a "pre-indictment plea[], initial post[-]indictment plea[s], [or] final post-indictment plea[]." Revised Attorney General Guidelines For Negotiating Cases Under N.J.S.A. 2C:35-12, July 15, 2004, 2.2.