STATE OF NEW JERSEY v. REYNEL DELVALLE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3999-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

REYNEL DELVALLE, a/k/a
MITO,

        Defendant-Appellant.

________________________________________________________________

              Submitted October 26, 2017 – Decided December 7, 2017

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              11-12-0175.

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

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Jana Robinson, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM
      Defendant Reynel Delvalle appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary

hearing.   For the reasons that follow, we affirm.

      Defendant pled guilty to first-degree racketeering, 
N.J.S.A.

2C:41-2(c), pursuant to a plea agreement           in which the State

recommended a ten to fifteen year sentencing range, subject to the

No Early Release Act (NERA), 
N.J.S.A. 2C:43-7.2.           The court later

sentenced defendant to fourteen years subject to NERA in accordance

with his plea agreement.

      Defendant filed a direct appeal, challenging his sentence.1

An excessive sentence panel of this court affirmed his sentence.

See State v. Delvalle, No. A-4973-12 (App. Div. September 25,

2013).     The   Supreme   Court   denied    defendant's    petition    for

certification on July 3, 2014.          State v. Delvalle, 
218 N.J. 275

(2014).

      The facts underlying defendant's convictions are summarized

as   follows.    In   2010,   through     court-authorized    electronic,

telephone, and physical surveillance, the New Jersey State Police

and the Camden County Police discovered that defendant and his

codefendants were distributing heroin, cocaine and firearms.              As

part of the investigation, using information obtained through


1
    As part of his plea agreement, defendant waived his right to
appeal his conviction.

                                    2                              A-3999-15T3
wiretaps,    police   determined     that    defendant    was    involved         in

numerous sales of controlled dangerous substances and firearms.

The police also conducted a controlled purchase of a substantial

amount of heroin from defendant and one of his codefendants, which

included acquiring a firearm from defendant as well.                 When they

concluded their investigation, police arrested defendant.                  A grand

jury issued a thirty-eight count indictment charging twenty-eight

individuals, including defendant, with numerous crimes, including

the   first-degree    racketeering    charge     to   which   defendant        pled

guilty.

      When   defendant   pled   guilty,     he   testified      to   the     facts

underlying the crime he committed.          Defendant told the court that

he participated in the enterprise identified in the indictment by

conspiring to repeatedly sell CDS and firearms, including the sale

of drugs and delivery of a firearm to the undercover police officer

in the controlled purchase.

      After being sentenced and pursuing his appeal, defendant

filed a PCR petition on July 18, 2014.            In his amended petition

filed by PCR counsel, defendant argued that he received ineffective

assistance from his trial counsel who failed to file a motion to

suppress, coerced defendant into accepting the plea agreement, and

failed to advise defendant of the penal consequences of his plea.



                                     3                                     A-3999-15T3
Defendant also claimed that appellate counsel failed to argue that

his sentence was disparate from his co-defendant's sentence.

       Judge John T. Kelley denied defendant's petition by order

dated January 4, 2016, after finding defendant failed to present

a prima facie claim for ineffective assistance of counsel.               In his

comprehensive oral decision, Judge Kelley rejected defendant's

argument that his plea counsel was ineffective for failing to file

a   motion   to   suppress.      The   judge    found   that,    contrary      to

defendant's contentions, the warrants obtained for the telephone

surveillance were not defective2 and the police had substantial

probable cause to support the court issuing the warrants.                    The

judge concluded there was no likelihood that the motion would have

been   successful.      Judge    Kelley      also   found   no   support     for

defendant's   contention      that   trial   counsel    failed   to   properly

advise him about his exposure under the plea agreement.               The judge

determined defendant's contentions were unsupported and belied by

the record.       Judge Kelley also rejected defendant's arguments



2
    In particular, defendant argued that during their intercepts
the police failed to "minimize" as required by N.J.S.A. 2A:156A-
12(f), the minimization provision of the New Jersey Wiretapping
and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to –
34. The provision requires that government officials monitoring
wiretaps "mak[e] reasonable efforts" to minimize or eliminate the
interception of conversations other than those they have been
authorized to hear.   See State v. Catania, 
85 N.J. 418, 428-29
(1981).

                                       4                                A-3999-15T3
about any disparity in defendant's sentence.       The judge observed

"the disparity can be explained through the defendant’s criminal

record which includes juvenile adjudications, drug offenses in

school   zones,    aggravated   assault    and   theft   by   deception

convictions."     He concluded that under these circumstances there

was no significant difference in the sentences imposed on defendant

and his codefendant, or that the four year difference shocked the

"conscience of the Court."      After finding that defendant failed

to establish a prima facie claim, the judge denied defendant's

request for an evidentiary hearing.       This appeal followed.

     Defendant presents the following issues for our consideration
in his appeal.
                  POINT I

                  DEFENDANT WAS DENIED THE EFFECTIVE
                  ASSISTANCE OF COUNSEL ENTITILING
                  [SIC] HIM TO POST CONVICTION RELIEF
                  AND AN EVIDENTIARY HEARING.

                       A.   Trial     counsel     was
                  ineffective for having misinformed
                  defendant as to his penal exposure
                  thereby resulting in a coerced
                  acceptance of defendant's plea.

                       B.   Counsel was ineffective
                  for failing to move to suppress the
                  illegal search and seizure of
                  evidence collected through wiretaps
                  used to convict the defendant.




                                   5                              A-3999-15T3
                 POINT II

                 DEFENDANT IS ENTITLED TO WITHDRAW
                 HIS PLEA BECAUSE THE NATURE AND
                 STRENGTH OF HIS CLAIM OUTWEIGH THE
                 STATE'S INTEREST IN PRESERVING THE
                 PLEA. (NOT RAISED BELOW)

                 POINT I[II]

                 DEFENDANT WAS     DENIED THE EFFECTIVE
                 ASSISTANCE OF    APPELLATE COUNSEL FOR
                 FAILURE TO       ARGUE DISPARITY IN
                 SENTENCING ON    APPEAL.

     We   are   not   persuaded   by       these   arguments.   We   affirm,

substantially for the reasons expressed by Judge Kelley in his

thorough oral decision.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668, l
04 S. Ct. 2052, 
80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v.

Fritz, l
05 N.J. 42 (l987).        In order to prevail on a claim of

ineffective assistance of counsel, defendant must meet the two-

prong test of establishing that: (l) "counsel's performance was

deficient" and he or she made errors that were so egregious "that

counsel was not functioning" effectively as guaranteed by the

Sixth Amendment to the United States Constitution; and (2) the

defect in performance prejudiced defendant's rights to a fair

trial such that there exists a "reasonable probability that, but


                                       6                             A-3999-15T3
for counsel's unprofessional errors, the result of the proceeding

would have been different."          Strickland, supra, 
466 U.S.  at 687,

694, l
04 S. Ct.  at 2064, 2068, 
80 L. Ed. 2d    at 693, 698.

     This two-prong analysis applies equally to convictions after

a trial or after a defendant pleads guilty.            In the context of a

PCR petition challenging a guilty plea, the first Strickland prong

is   satisfied       when   a   defendant   establishes     a    "reasonable

probability that, but for counsel's errors, [he or she] would not

have pled guilty. . . ."            State v. Gaitan, 
209 N.J. 339, 351

(2012).   The second prong is met when a defendant establishes a

reasonable probability he or she "would have insisted on going to

trial."      Ibid.      "When   a   defendant   has   entered   into   a   plea

agreement, a deficiency is prejudicial if there is a reasonable

probability that, but for counsel's errors, the defendant would

not have decided to forego the plea agreement and would have gone

to trial."    State v. McDonald, 
211 N.J. 4, 30 (2012) (citing Hill

v. Lockhart, 
474 U.S. 52, 59, 
106 S. Ct. 366, 370, 
88 L. Ed. 2d 203, 210 (1985); State v. Nuñez-Valdéz, 
200 N.J. 129, 139 (2009)).

     We conclude from our review of the record that, as Judge

Kelley found, defendant failed to make a prima facie showing of

ineffective assistance of trial counsel within the Strickland-

Fritz test.      We also note that, in addition to not establishing

that counsel's performance was deficient, defendant failed to make

                                       7                               A-3999-15T3
any showing that had he established that trial counsel rendered

deficient performance, how the outcome in his case would have been

any different – i.e., he would have passed on the plea offer and

gone   to   trial,   facing   what   could   have   amounted   to,   in   the

aggregate, a life sentence.

       Accordingly, we agree with Judge Kelley that an evidentiary

hearing was not warranted.       See State v. Preciose, 
129 N.J. 452,

462-63 (1992).

       Affirmed.3




3
     To the extent we have not expressly addressed Point II of
defendant's contention about the strength of his claim, we find
the argument to be without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).

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