STATE OF NEW JERSEY v. JASON GUZMAN-NEGRON

NOT FOR PUBLICATION WITHOUT THE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.

JASON GUZMAN-NEGRON,

Defendant-Appellant.

_______________________________

October 26, 2015

Submitted September 29, 2015 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1195.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a May 13, 2013 order denying his petition for post-conviction relief ("PCR") without an evidentiary hearing. He contends that his prior counsel was ineffective and that his guilty plea was involuntary. We affirm.

We discern the following facts from the record. On April 10, 2005, defendant's friend, Ricardo Perez, was involved in an altercation with G.B1 over a cigarette lighter. Perez, who was armed with a knife, summoned defendant and confronted G.B. Defendant was armed with a handgun and shot G.B. in the shoulder while he was running away from the incident. G.B. died as a result of the gunshot wound. Defendant was arrested the next day.

Defendant pled guilty to first-degree aggravated manslaughter in violation of N.J.S.A. 2C:11-4 on October 10, 2006. At the plea colloquy, the trial judge asked if defendant had enough time to discuss the case with his attorney and whether his attorney answered all of his questions. Defendant responded "[y]es" to both questions. The trial judge asked if defendant reviewed the indictment with his lawyer, whether his lawyer reviewed the plea form with him "line by line," whether all of the answers on the plea form were his own, and whether he understood all of the proceedings. Defendant answered "[y]es" to all of these questions.

Before accepting defendant's guilty plea, the trial judge explained to him that

aggravated manslaughter means the maximum [term of imprisonment] is 30 years, 85 percent of which must be served. By way of example, that means the maximum you are facing is a [sentence] of almost 25 years before you are eligible for parole. You are going to not get that, but that's the maximum.

. . . .

[Y]ou are required to serve five years on parole and serve 85 percent of your sentence . . . . By way of example, if you were given a 20 [year sentence] you would have to serve on a 20[,] 17 years before you get out. If you served the full 17 years but you didn't do well on parole, you could be put back in jail for five more years of violation of parole. Do you understand?

Defendant responded "[y]es" indicating he understood he was facing a maximum of twenty-five years in prison as a result of his guilty plea. The trial judge asked defendant about his mental state and his ability to understand he was pleading guilty to aggravated manslaughter. Defendant was asked at six different times during the plea colloquy, "whether anybody force[d]" or "threaten[ed]" him into pleading guilty. In response to all of these questions, defendant responded "[n]o."

The judge asked defendant if he "realize[d] he had a gun" and that he was "pointing it at [G.B.]" before shooting and killing [G.B.]. Defendant responded "[y]es" to both of these questions and admitted that he "kill[ed] [G.B.] by shooting him with the gun." The prosecutor also asked defendant whether he "realize[d] that shooting a gun at someone or toward someone constitutes reckless behavior" and that "when you shoot a gun at somebody there is a probability that they could be killed." Defendant responded "[y]es" to both questions. At the end of the plea colloquy, the trial judge found that there was a "factual basis for the plea and [that defendant] has done so freely and voluntarily."

At sentencing, on November 17, 2006, the trial judge found aggravating factors three, six, and nine applied because of defendant's long criminal history, his tendency towards violence, and the necessity to deter him from future crime. The trial judge found that no mitigating factors applied and "this case [was] both a Graves Act crime and an 85 percent crime." Defendant was sentenced to twenty-four years incarceration, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.2 Defendant did not directly appeal the trial court's decision.

On July 21, 2011, defendant filed his PCR petition. On May 13, 2013, a hearing was held before Judge Robert Mega to determine whether defendant was entitled to an evidentiary hearing. In his PCR petition, defendant alleged that he received ineffective assistance of counsel and that his guilty plea was not voluntary because he was "severely depressed," taking "several medications," and was therefore incompetent to enter his guilty plea. Judge Mega denied defendant's petition in a fifteen-page opinion on May 13, 2013, and this appeal followed.

On appeal, defendant argues

POINT I

THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL

POINT II

THE GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY GIVEN AND THE COURT ERRED IN FAILING TO ALLOW DEFENDANT []TO WITHDRAW SAID PLEA

We have considered these arguments in light of the record and the applicable legal standards, and conclude they are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in the thorough written opinion of Judge Mega. We add the following brief remarks.

Judge Mega reviewed the petition and concluded that defendant failed to meet the two-part Strickland/Fritz test.3 The test provides that a criminal petitioner seeking relief on the grounds of ineffective assistance of counsel must establish: (1) such deficient performance of counsel that a defendant was denied the Sixth Amendment's guarantee to counsel; and (2) prejudice to the petitioner resulting from counsel's deficient performance, such that the petitioner was deprived of a fair trial and reliable result. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Here, we agree with Judge Mega's conclusions that defendant did not show deficient performance or prejudice under Strickland/Fritz. Judge Mega found defendant had failed to proffer facts that would support his claim that defense counsel did not meet with him to discuss discovery and other aspects of the case, nor did he provide evidence that defense counsel pressured him into entering a guilty plea.

Defendant's other grounds for asserting ineffective assistance, such as defendant's alleged mental incapacity at the time of his plea, are also unpersuasive considering the record made by the trial judge who accepted defendant's guilty plea.

Moreover, we agree that a plenary hearing was not warranted. "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992) (emphasis in original). A prima facie claim is made if the petitioner demonstrates a reasonable likelihood of succeeding under the Strickland/Fritz test. Id. at 463. Here, Judge Mega correctly determined that no such prima facie case was established, as there was no reasonable likelihood of showing deficient performance or prejudice.

Affirmed.

1 We use initials to protect the identity of the deceased victim's family.

2 The record is unclear regarding the exact period of parole ineligibility. No judgement of conviction was provided. While the briefs and Judge Mega's PCR opinion state that defendant received a twenty-five-year sentence with five years of parole ineligibility, the sentencing transcript indicates that defendant was sentenced to twenty-four years with an eighty-five percent period of parole ineligibility and a five year term of parole supervision.

3 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). But see United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L. Ed. 2d 657, 667 (1984) (explaining the limitations on ineffective assistance of counsel claims under Strickland (and, accordingly, Fritz)).