STATE OF NEW JERSEY v. KRZYSZTOF A. JASTRZEBSKI

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3106-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

KRZYSZTOF A. JASTRZEBSKI,

Defendant-Appellant.
________________________________

Submitted March 13, 2018 – Decided April 20, 2018

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
10-09-1523.

Joseph E. Krakora, Public Defender, attorney
for appellant (Andrew R. Burroughs, Designated
Counsel, on the brief).

Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Justin M. Blasi,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
Defendant Krzysztof A. Jastrzebski appeals from the November

29, 2016 Law Division order denying his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

On September 2, 2010, a grand jury returned an eight-count

indictment against defendant, charging him with second-degree

burglary,
N.J.S.A. 2C:18-2; third-degree theft,
N.J.S.A. 2C:20-3;

fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(4); second-

degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b);

first-degree murder,
N.J.S.A. 2C:11-3; first-degree felony murder,

N.J.S.A. 2C:11-3(a)(3); first-degree robbery,
N.J.S.A. 2C:15-1;

and second-degree possession of a firearm for unlawful purposes,

N.J.S.A. 2C:39-4(a).

On January 14, 2009, defendant broke into a home and stole a

.380 Browning pistol. Ten days later, on January 24, 2009,

defendant entered a delicatessen armed with the stolen gun and

became involved in a confrontation with a deli employee. Defendant

shot and killed the employee during the confrontation. Defendant

admitted he fired the gun at the employee, but claims he intended

only to frighten him. Defendant further admitted he knew firing

the gun at someone was a reckless act.

In accordance with a plea agreement, on June 14, 2012,

defendant pled guilty to second-degree burglary,
N.J.S.A. 2C:18-

2 A-3106-16T3
2, and first-degree aggravated manslaughter,
N.J.S.A. 2C:11-

4(a)(1). In exchange, the State agreed to recommend a sentence

not to exceed ten years for burglary, and thirty years for

aggravated manslaughter with eighty-five percent parole

ineligibility, to run concurrently. On September 6, 2012, the

trial court sentenced defendant pursuant to the plea agreement.

Specifically, the court sentenced defendant to thirty years in

prison, subject to the No Early Release Act (NERA), for first-

degree aggravated manslaughter, and a concurrent seven-year prison

term for second-degree burglary.

On February 5, 2013, we heard oral argument on defendant's

excessive sentencing claim. On February 6, 2013, we entered an

order affirming the trial court's judgment. State v. Jastrzebski,

No. A-0846-12 (App. Div. Feb. 6, 2013). On October 25, 2013, the

Supreme Court denied defendant's petition for certification.

State v. Jastrzebski,
216 N.J. 14 (2013).

On November 15, 2015, defendant filed the petition for PCR

under review, arguing he received ineffective assistance from both

trial counsel and appellate counsel. On November 28, 2016, the

PCR court heard oral argument and denied defendant's petition

without an evidentiary hearing. This appeal followed, with

defendant presenting the following arguments for our

consideration:

3 A-3106-16T3
POINT I

AS PETITIONER RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL, HE IS ENTITLED TO POST-CONVICTION
RELIEF[.]

(1) Plea counsel misled [d]efendant as to the
penal consequences of entering a guilty
plea.

(2) Plea counsel failed to sufficiently
review discovery with [d]efendant.

(3) As [d]efendant was under the influence
of anti-psychotic drugs when he entered
a guilty plea, the plea was not
voluntarily, knowingly and intelligently
made.

(4) The cumulative errors committed by plea
counsel require post-conviction relief.

POINT II

APPELLATE COUNSEL FAILED TO CONSULT WITH
DEFENDANT.

POINT III

AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS
IN DISPUTE, AN EVIDENTIARY HEARING WAS
REQUIRED.

Following our review of the record and the applicable law,

we conclude defendant's appeal lacks merit. We therefore affirm.

Because the PCR court did not hold an evidentiary hearing on

the claims defendant now raises on appeal, we "conduct a de novo

review." State v. Harris,
181 N.J. 391, 421 (2004). To establish

4 A-3106-16T3
a prima facie case of ineffective assistance of counsel, defendant

must satisfy the two-prong test articulated in Strickland v.

Washington,
466 U.S. 668, 687 (1984), which our Supreme Court

adopted in State v. Fritz,
105 N.J. 42, 58 (1987). "First, the

defendant must show . . . counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed . . . by

the Sixth Amendment." Fritz,
105 N.J. at 52 (quoting Strickland,

466 U.S. at 687). Defendant must then show counsel's deficient

performance prejudiced the defense. Ibid. In that regard, a

defendant seeking to set aside a guilty plea must demonstrate 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. DiFrisco,
137 N.J. 434, 457, (1994)

(alteration in original) (quoting Tollett v. Henderson,
411 U.S. 258, 266 (1973), and Hill v. Lockhart,
474 U.S. 52, 59 (1985)).

"An attorney is entitled to 'a strong presumption' that he

or she provided reasonably effective assistance, and a 'defendant

must overcome the presumption that' the attorney's decisions

followed a sound strategic approach to the case." State v. Pierre,

223 N.J. 560, 578-79 (2015) (quoting Strickland,
466 U.S. at 689).

"[A] petitioner must do more than make bald assertions that he [or

5 A-3106-16T3
she] was denied the effective assistance of counsel." State v.

Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). "[H]e [or

she] 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." Ibid.

III

Defendant first argues trial counsel mislead him into

believing the court would sentence him to significantly less than

the thirty-year maximum imprisonment from the plea agreement.

However, during the plea hearing, defendant acknowledged NERA

required he complete eight-five percent of the thirty-year

sentence. When the judge asked defendant how many years he

expected the State to request, he replied, "Thirty years."

Defendant further contends he speaks limited English and used

an interpreter during discovery review, but not during a review

of the plea agreement. However, a review of the plea hearing

indicates the judge specifically asked defendant if he used an

interpreter to go through the plea agreement and he answered

affirmatively. Defendant further confirmed he went through "each

and every" question on the plea form and initialed the bottom of

each page.

6 A-3106-16T3
The record contains ample evidence defendant knew and

understood he was subject to a thirty-year term in prison.

Therefore, defendant failed to show trial counsel was deficient

under the first prong of the Strickland test.

Defendant next argues his trial counsel failed to review

discovery with him sufficiently, causing him to enter an uninformed

guilty plea. Defendant contends trial counsel reviewed

"voluminous discovery" with him "in the county jail with a Polish-

speaking interpreter for less than one hour." Defendant argues

trial counsel did not adequately review the discovery nor did he

"fully explain his legal options." However, the record does not

support defendant's contention. During the plea hearing, the

judge asked defendant, "[You are] pleading guilty because in fact

you've reviewed the discovery and you've made the decision of your

own free will to plead guilty. Is that correct?" Defendant

replied, "Yes." Defendant also confirmed that some of the

discovery documents were provided in Polish. Therefore, again,

defendant failed to show trial counsel was deficient under the

first prong of the Strickland test.

Next, defendant contends his guilty plea was not voluntary,

knowing, and intelligent because he was under the influence of

7 A-3106-16T3
anti-psychotic drugs. In the presentence report (PSR), the

probation officer indicated "defendant displayed signs of someone

who might be heavily medicated but he denied being on any

medications." The State does not dispute defendant was prescribed

medication at the time of the plea hearing. However, defendant

failed to provide any legally competent evidence as to the effect

his medications had on him at the time of the plea hearing.

Furthermore, defendant testified during the plea hearing he was

not "on any medication, prescription or otherwise, that would

affect [his] ability to understand what's going [on] here today."

Therefore, again, defendant failed to show trial counsel was

deficient under the first prong of the Strickland test. Even

assuming defendant lied under oath about not taking medications,

defendant failed to establish the second prong of Strickland; by

receiving a favorable plea agreement relative to his overall

exposure, defendant failed to establish he suffered any prejudice.

Next, defendant contends the cumulative effect of trial

counsel's errors require PCR. Defendant cites State v. Jenewicz,

193 N.J. 440, 473 (2008), for the premise "that even when an

individual error or series of errors does not rise to reversible

error, when considered in combination, their cumulative effect can

cast sufficient doubt on a verdict to require reversal." However,

8 A-3106-16T3
when asserting an ineffective assistance of counsel claim,

defendant must still establish both prongs of the Strickland test.

Again, even assuming defendant could establish the first prong due

to cumulative errors, defendant failed to establish the second

prong of Strickland because he received a favorable plea agreement

relative to his overall exposure, and therefore failed to establish

he suffered any prejudice. Nor did defendant establish that it

would have been rational to reject the plea agreement and go to

trial. See State v. O'Donnell,
435 N.J. Super. 351, 371 (App.

Div. 2014) (quoting Padilla v. Kentucky,
559 U.S. 356, 372 (2010)).

VII

Defendant next argues appellate counsel was ineffective in

failing to consult with him. Defendant argues appellate counsel

could have raised on direct appeal all of the issues raised by PCR

counsel. However, we found each of those arguments meritless,

therefore they would have failed on direct appeal as well.

Accordingly, defendant failed to establish he suffered any

prejudice.

Defendant also argues appellate counsel could have raised the

issue of whether he was denied the right to counsel. However,

defendant waived any right to a constitutional claim when he pled

guilty. See State v. Crawley,
149 N.J. 310, 316 (1997)

("Generally, a defendant who pleads guilty is prohibited from

9 A-3106-16T3
raising, on appeal, the contention that the State violated his

constitutional rights prior to the plea."). Therefore, once again,

defendant failed to establish he suffered any prejudice under the

Strickland test.

VIII

Last, defendant contends the PCR court erred by ruling on his

petition without an evidentiary hearing. However, this matter did

not require a hearing because defendant failed to present a prima

facie case of ineffective assistance of counsel. See R. 3:22-

10(b); See also State v. Porter,
216 N.J. 343, 354 (2013) (citing

State v. Preciose,
129 N.J. 451, 462-63 (1992)).

Affirmed.

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