STATE OF NEW JERSEY v. ALI RILEY

NOT FOR PUBLICATION WITHOUT THE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.

ALI RILEY,

Defendant-Appellant.

February 14, 2014

Submitted January 28, 2014 Decided

Before Judges Reisner and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Accusation No. 98-12-1297.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian John Pollock, Special Deputy Attorney General/Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ali Riley appeals from a March 29, 2012 order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. Defendant contends that he received ineffective assistance of plea counsel. We affirm.

Following his November 11, 1998 arrest, defendant was charged in a three-count Essex County accusation with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count two); and third-degree possession of cocaine, N.J.S.A. 2C:35-10 (count three). Pursuant to a negotiated agreement, defendant pled guilty to count one, as amended to third-degree theft, N.J.S.A. 2C:20-3, in return for the State's agreement to recommend a probationary sentence and dismiss the remaining charges.

During the plea hearing on December 1, 1998, defendant confirmed he understood the plea agreement, and that he was waiving his right to a jury trial, during which he could "call any witnesses that [he] want[ed] called," and testify should he choose to do so. Defendant further acknowledged that he entered into the plea agreement voluntarily, and he was satisfied with the legal services his attorney provided. After establishing a factual basis for the theft, the trial court accepted defendant's plea, and granted defense counsel's application to release defendant on his own recognizance.

In accordance with the negotiated plea, on January 11, 1999, the trial court sentenced defendant to a three-year period of probation, and ordered defendant to have no contact with the theft victim. The remaining counts of the accusation were dismissed and appropriate fees and assessments were imposed. Defendant did not file a direct appeal from his conviction and sentence.

Over twelve years later, in March 2011, defendant filed a PCR petition, which he supplemented with a certification on July 19, 2011, following the appointment of counsel. Defendant claimed that his trial counsel was ineffective for (1) failing to discuss procedure with him; (2) presenting him with no defense plan; (3) not advising him that his conviction could be used to enhance a sentence for a subsequent conviction; and (4) not advising him of his right to appeal.

Following oral argument, Judge Joseph Cassini denied defendant's petition on March 29, 2012. Notwithstanding that defendant's petition appears to have been time-barred under Rule 3:22-12(a)(1) for failure to file within five years after entry of the judgment of conviction, Judge Cassini addressed defendant's substantive claims, and concluded that they lacked merit. The judge found that there is no obligation to advise a defendant that a conviction could subject him to harsher penalties for future criminal conduct. The judge further noted that defendant was advised of his right to appeal at the time of sentencing, and that he had acknowledged his understanding of that right.

On appeal from the denial of his petition, defendant presents the following argument:

POINT I

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING BECAUSE DEFENDANT'S PETITION AND THE INDEPENDENT RECORD ESTABLISHED THAT TRIAL COUNSEL HAD FAILED TO PERFORM A THOROUGH INVESTIGATION OF ALL PLAUSIBLE OPTIONS AVAILABLE TO THE DEFENDANT AND ADVISE DEFENDANT OF THE CONSEQUENCES OF HIS PLEA.

Based on our review of the record and the applicable law, we conclude these arguments are clearly without merit, Rule 2:11-3(e)(2), and only require the following comments.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992).

Ineffective assistance of counsel claims must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of a deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" 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).

This standard also applies in the context of guilty pleas, where attorney competence is required, and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under this second prong, defendant must show "'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009) (quoting Preciose, supra, 129 N.J. at 463-64).

A petitioner must establish the right to relief by a preponderance of the evidence, Preciose, supra, 129 N.J. at 459, and "must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, "bald assertions" of ineffective assistance are not enough. Ibid. The court must view the facts alleged in the light most favorable to the petitioner. Ibid.

A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where "the defendant's allegations are too vague, conclusory, or speculative[.]" Ibid.; see also State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

Defendant was arrested on a federal charge in 2006, and he alleges that he received an "enhanced" federal sentence in September 2007, because of his 1999 conviction in Essex County. He argues, without any supporting authority, that his trial counsel failed to advise him that he would face enhanced penalties if he were subsequently convicted of a federal charge. Contrary to defendant's contention, there is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty." State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.), certif. denied, 162 N.J. 128 (1999). Thus, defendant's claim, that his attorney should have advised him in 1998 that his guilty plea could cause him to receive an enhanced sentence if he committed federal offenses in the future, plainly lacks merit.

In his supplemental certification supporting his PCR petition, defendant merely avers that trial counsel "did not discuss procedure with me, and never presented to me a defense plan." We conclude that these bald assertions of ineffective assistance of counsel were without sufficient merit under the Strickland standard to present a prima facie case. See Cummings, supra, 321 N.J. Super. at 170. A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome. By his plea, defendant received a probationary sentence. Facing first-degree sentencing exposure on the original robbery charge, the likelihood that defendant would have received a more favorable result here appears remote.

In sum, from our review of the entire record, and for the reasons stated above, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his trial attorney's performance was deficient, or that he was prejudiced thereby. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.