STATE OF NEW JERSEY v. ELIUD TRONCOSO

NOT FOR PUBLICATION WITHOUT THE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.

ELIUD TRONCOSO,

Defendant-Appellant.

__________________________________

June 16, 2015

Submitted May 19, 2015 Decided

Before Judges Reisner and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1348.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eliud Troncoso appeals from the February 4, 2013 order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. Having reviewed the record and applicable law, we affirm.

Defendant raises the following points on appeal

POINT ONE

THE TRIAL COURT ERRONEOUSLY RULED THAT MR. TRONCOSO'S PETITION WAS TIME BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF THE DEFENDANT'S FACTUAL ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE.

POINT TWO

MR. TRONCOSO IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO INFORM HIM ABOUT HIS MAXIMUM SENTENCING EXPOSURE, AND FAILING TO RAISE AN INVOLUNTARINESS ARGUMENT ON DIRECT APPEAL.

Although the PCR judge found defendant's petition was time barred, he also considered and denied the petition on its merits. As we agree with the court's decision to deny the petition on its merits, we need not address the question of whether it was also time barred. Therefore, we move to the factual context of defendant's second point.

On October 22, 2003, a Passaic County Grand Jury charged defendant in a two-count indictment with one count of first-degree murder, in violation of N.J.S.A.2C:11-3(a)(1) or 3(a)(2), and one count of third-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A.2C:39-4(d). The charges related to the murder of defendant's girlfriend who was viciously beaten to death with a lead pipe. The autopsy report described multiple blows to her face and head. Defendant was arrested within hours of her death with blood on him. He admitted killing her, but also claimed he had blacked out at the scene. Later in a letter from jail, defendant admitted he killed her after an argument by beating her with a lead pipe because he was angry she was prostituting herself to buy drugs. In the letter he also stated that after beating her, he used a knife to cut open her abdomen and cut out her vagina. The latter events involving a knife did not occur according to the autopsy report.

Counsel for defendant requested and received a psychiatric evaluation of defendant. Defendant had a history of psychiatric treatment, including several inpatient hospitalizations. He also had a long history of cocaine and alcohol abuse. The psychiatrist, however, found he was competent to stand trial.

If defendant was convicted of first-degree murder, the maximum sentence would have been a life sentence with thirty years of parole ineligibility, and the minimum sentence would have been thirty years in prison without parole eligibility. Since defendant had prior convictions for violent assaults he may have qualified for an extended sentence.

Defendant appeared before the court on December 8, 2003. He had been offered a plea agreement where he could plead guilty to aggravated manslaughter, and the State would recommend he be sentenced to twenty-eight years in prison with a requirement to serve eighty-five percent before being eligible for parole. On the record, the prosecutor stated there was some discussion about going down to a twenty-five year sentence. At first defendant stated he wanted to go to trial. The judge then took a break to allow counsel to complete a pretrial form. Defendant met with his counsel and then returned to the courtroom where a plea was entered.

The prosecutor explained the charges on the indictment and noted the fact that they had a statement from defendant, and that he was covered with blood when he was arrested shortly after his girlfriend's death. The judge accurately told defendant that if he was convicted of murder at a trial, he could face a sentence of life in prison. There was a short discussion about whether he would qualify for an extended term, but the judge pointed out it really didn't matter and counsel agreed, saying facetiously, "I mean . . . what's he facing a double life?" The obvious meaning being that if one actually serves a life sentence there is nothing more to serve. The judge responded "Right. Exactly." Defendant never made any inquiry or statement about his counsel's remark. Demonstrating that he understood the consequences of his plea, defendant told the court he had hoped for less time because he would be over sixty years old when he got out of prison. The judge rather gently told defendant that it was a long sentence, but considering the type of crime and the circumstances, he seemed to have unrealistic expectations as to what his counsel could do for him. The judge also reminded defendant that at least with the plea he would get out after a maximum of twenty-five years, while there was no guarantee of release with a life sentence. Even so he also told defendant he should not plead guilty if he did not commit the crime. Defendant agreed to plead guilty to an amended indictment charging him with aggravated manslaughter, with a recommended twenty-five year sentence and eighty-five percent parole ineligibility.

The transcript reflects defendant was aware of what was happening and understood what he was doing. He testified he could read, write, and understand English. He described on the record the reasons he and the victim argued and stated that he became enraged. Although at first defendant said he blacked out, he then admitted hitting her ten times with the pipe. He also admitted telling the police that "her face was messed up." The judge again questioned him in detail about his understanding of his right to a trial. Defendant stated he had not been threatened or coerced into entering his plea. In addition, defendant initialed each page of a detailed plea form that explained what sentence he could be facing if he went to trial, and what sentence he was agreeing to accept. On the record defendant agreed he was satisfied with his counsel's services. He further stated he was taking medications which he listed by name. He agreed that despite or because of the medication, he fully understood the proceedings. Finally, defendant was asked by the judge two more times before the end of the hearing if he had questions about anything, and defendant responded in the negative.

At the sentencing hearing on April 16, 2004, counsel advised the judge about his client's substantial mental health problems, including several inpatient hospitalizations, but acknowledged that a psychiatrist had found him competent to stand trial. As one of the mitigating factors, the judge applied factor number four finding that the defendant suffered from mental illness that could in part explain, but not excuse his actions.

In his PCR, defendant alleged ineffective assistance of his counsel and sought to set aside his guilty plea. Defendant argued that his trial counsel misinformed him about the maximum sentence he could receive if he went to trial because of the single mention of a "double life" sentence during the exchange with the judge. Defendant further alleged counsel was ineffective because he failed to retain a psychiatrist to evaluate his mental capacity for sentencing purposes. Defendant also argued that counsel failed to argue strenuously enough at sentencing that defendant's mental illness was a mitigating factor. Finally, he argued his counsel should have raised on appeal the claim that his plea was coerced. Defendant repeats these same arguments in this appeal.

Claims of ineffective assistance of counsel are well suited for post-conviction review, but merely raising such a claim does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance of counsel. State v. Preciose, 129 N.J.451, 462-64. To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate reasonable likelihood of success under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), andadopted by our Supreme Court in State v. Fritz, 105 N.J.42, 58 (1987). Under the first prong of the Stricklandtest, a "defendant must show that counsel's performance was deficient." Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2094, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.at 694, 104 S. Ct.at 2068, 80 L. Ed. 2d at 698.

To justify withdrawing a guilty plea premised on ineffective assistance of counsel, defendant must satisfy a modified Stricklandstandard. When a guilty plea underlies the PCR petition, defendant must show that counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases" and "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. Nunez-Valdez, 200 N.J.129, 139 (2009) (quoting State v. DiFrisco, 137 N.J.434, 457 (1994)). Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct.at 1473, 1485, 176 L. Ed. 2d at 284, 287 (2010).

Judge Garry S. Rothstadt in a thorough eighteen-page written decision appropriately applied the law to the facts and found defendant failed to establish a prima facie claim of ineffective assistance of counsel, and therefore did not require an evidentiary hearing. First, he pointed out that defendant has never asserted any claim that he was innocent of the crime to which he pled guilty. Judge Rothstadt then found as follows

In this case, the court was satisfied that not only was the defendant fully informed by his attorney and the court as to the consequences of his plea in terms of his maximum and minimum exposure under the original indictment, but also that the defendant could not prove, under his heightened burden, that if he was not aware of the consequences, he would not have pled guilty if he had been properly informed. The defendant was facing a sentence of up to life in prison subject to both the NERA consequences and the possibility of an extended term. Moreover, as to the charge contained in the original indictment, the evidence against him was overwhelming due to the fact that he gave a statement admitting to the crime and there were eyewitnesses. . . . He wanted to plead guilty so as to avoid what appeared to be a certain murder conviction that exposed him to life in prison.

The court also found that the defendant's claim that he had a right to another psychological evaluation for sentencing purposes was without merit, as was his claim that his appellate counsel was ineffective for failing to challenge his conviction based on the "involuntariness of the plea."

We affirm substantially for the reasons set forth in Judge Rothstadt's comprehensive and well-reasoned opinion.