STATE OF NEW JERSEY v. ANTONIO J. PRATTS

NOT FOR PUBLICATION WITHOUT THE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-3973-16T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANTONIO J. PRATTS, a/k/a VINCENT A.
KINCY, RENEN ORTIZ, TONY PINGALO,
TONY PINGNALO, ANTONIO PRATT,
TONY PRATTS, ANTONION J. PINGOLO,
and ANTHONY PRATTS,

      Defendant-Appellant.
________________________________

              Submitted May 1, 2018 - Decided May 25, 2018

              Before Judges Gilson and Mitterhoff.

              On Appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              15-07-1732.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David J. Reich, Designated
              Counsel, on the brief).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (John J. Santoliquido,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
      Defendant Antonio Pratts appeals the trial court's May 3,

2017 order denying his petition for post-conviction relief (PCR).

We affirm.

      On July 7, 2015, defendant was indicted of two counts of

failing to register as a sex offender.       The first count alleged

that defendant provided false information or failed to verify his

address as required annually in contravention of 
N.J.S.A. 2C:7-

2e.   The second count alleged that defendant failed to register a

change of address with local law enforcement contrary to the

provisions of 
N.J.S.A. 2C:7-2(a) and 
N.J.S.A. 2C:7-2(d)(1).       Both

counts involved crimes of the third degree.

      As part of a negotiated plea agreement, defendant pled guilty

to the first count of the indictment, failing to register a change

of address.     The plea agreement provided that the prosecution

would recommend four years in prison without prejudice to the

defense's right to argue at sentencing that imprisonment would not

be in the interests of justice.       In addition, the plea agreement

specified that defendant would be subject to parole supervision

for life.1    In exchange, the State agreed to dismiss the second

count of the indictment.





1 On July 7, 2016, the Judgment of Conviction was amended to remove
the provision placing defendant on parole supervision for life.

                                  2                           A-3973-16T2
    At defendant's May 2, 2016 plea hearing, the judge questioned

defendant    about   his   understanding      of   the   terms   of    the   plea

agreement and whether his guilty plea was knowing and voluntary.

             Court:   As you stand before the Court, Mr.
             Pratts, are you under the influence of any
             type of drug, alcohol or medication that would
             impair your ability to make an intelligent
             decision?
             Pratts:   No.
             Court:    And before you is a plea form, did
                       you go over that with your lawyer?
             Pratts:   Yes.
             Court:    Do you understand that form?
             Pratts:   Yes.
             Court:    Did you initial each page?
             Pratts:   (No audible response).
             Court:    Yes?
             Pratts:   Yes I did.
             Court: And did you sign the last page?
             Pratts:   Yes, I did.

    The plea form in question established that defendant was

aware that the prosecutor's recommended sentence was four years

in New Jersey State Prison.       The plea form also established that

defense counsel would be permitted to argue at sentencing that

imprisonment was not in the interest of justice.                 The foregoing

terms   of   the   plea    agreement   were    placed    on   the     record    at

defendant's plea hearing.

    At the conclusion of the hearing, the court accepted the

plea, finding that defendant's plea was knowing and voluntary,

that defendant was not under any infirmity or intoxication, and

that the agreement was not the product of any threats, promises

                                       3                                 A-3973-16T2
or coercion.    The matter was set for sentencing on a later date.

The court closed by requesting defense counsel to provide a letter

brief addressing sentencing factors; however, defense counsel

failed to supply the requested brief.

     At sentencing, another attorney from the Public Defender's

office substituted as defense counsel. Sentencing counsel argued

for the imposition of a suspended sentence, urging the court to

find mitigating factor eleven (imprisonment would cause excessive

hardship) due to defendant's age of sixty-seven years and his ill

health.     Defendant was allowed to testify about his medical

problems.

            Pratts:    Your Honor, my medical problems are
            --- consists of I have an artificial joint
            replacement in my right shoulder, I have an
            artificial joint replacement on my right knee.
            I am diabetic, Type 2. I have asthma, I have
            degenerative joint disease. Right now I'm
            waiting for --- I have postponed these medical
            procedures because of the bracelet. I wanted
            to at least keep some of my dignity when I go
            to get a colonoscopy, I have to get surgery
            on my --- on my left knee and my left shoulder.

     The sentencing judge held that defendant failed to establish

mitigating factor eleven (excessive hardship because of a medical

condition), 
N.J.S.A. 2C:44-1.     The judge noted that:

            The hardships asserted by defendant are not
            supported by the record and, even if they
            were, they do not amount to a 'serious
            injustice that overrides the need to deter
            others.' See State v. Jabbour, 
118 N.J. 1, 7

                                  4                           A-3973-16T2
            (1990).   Moreover, the defendant failed to
            establish that any of his medical needs could
            not be addressed in a prison setting. See,
            e.g., State v. Kelly, 
97 N.J. 178, 220 (1984).

The court further observed that, over the State's objection, it

had allowed defendant to go on the HEDS bracelet program in order

to deal with his alleged medical problems; yet throughout the

pretrial process defendant did not pursue any medical treatment.

      The    court   found     aggravating       factor     three    (risk     of

reoffending), 
N.J.S.A 2C:44-1(a)(3), aggravating factor six (prior

criminal record), 
N.J.S.A. 2C:44-1(a)(6), and aggravating factor

nine (need for deterrence), 
N.J.S.A 2C:44-1)(a)9.                   The court's

findings as to the aggravating factors were based on defendant's

extensive    criminal      history,     which    included    thirteen     prior

indictable convictions and nine prior disorderly persons offenses.

Defendant's prior record included convictions for contributing to

the   delinquency    of   a   minor,    theft,   burglary,    robbery,    armed

robbery, weapons offenses, receiving stolen property, forgery,

aggravated    sexual      assault,     sexual    assault,    criminal    sexual

contact, kidnapping, failure to register and criminal restraint.

The court concluded that the aggravating factors substantially

outweighed the lack of mitigating factors, and sentenced defendant

in accordance with the plea agreement to four years in prison.




                                        5                               A-3973-16T2
     On August 26, 2016, defendant filed a petition for post-

conviction relief, claiming he had received inadequate assistance

of counsel in connection with the plea hearing.                   At the PCR

hearing, defendant argued that his trial counsel failed to make a

motion to dismiss the indictment. In that regard, defendant argued

that there was some evidence that he resided at the registered

address,    including    the    fact   that      his   driver's   license    and

prescription    ledger    reflected        the   registered    address.        In

addition, defendant argued that his counsel failed to submit a

written    sentencing    memorandum    concerning       defendant's     medical

conditions.     Finally,       defendant    claimed    that   defense   counsel

allegedly assured him that he would receive time served as a

sentence.

     On March 3, 2017, the PCR judge issued an order and a written

opinion denying defendant's petition. This appeal ensued.

     On appeal, defendant asserts the following issues.

            POINT I
            THE TRIAL COURT ERRED IN DENYING PRATTS AN
            EVIDENTIARY HEARING CONCERNING HIS CLAIM HIS
            COUNSEL   INADEQUATELY   PREPARED  FOR   THE
            SENTENCING HEARING

            POINT II
            THE TRIAL COURT ERRED IN DENYING PRATTS AN
            EVIDENTIARY HEARING CONCERNING HIS CLAIM THAT
            HE RECEIVED INADEQUATE ADVICE CONCERNING HIS
            GUILTY PLEA

            POINT III

                                       6                                A-3973-16T2
             PRATTS IS ENTITLED TO RELIEF CONCERNING HIS
             PLEA BECAUSE IT WAS NOT GIVEN WITH AN
             UNDERSTANDING OF ITS CONSEQUENCES

     We are constrained to uphold a trial court's findings on a

PCR application "if they could reasonably have been reached on

sufficient credible evidence in the record."            State v. Nunez-

Valdez, 
200 N.J. 129, 141 (2008).

     To establish a prima facie case of ineffective assistance of

counsel, a petitioner must show: (1) counsel's performance was

objectively deficient; and (2) counsel's deficient performance

prejudiced the defendant to the extent that he was deprived of his

right to a fair trial.          State v. Fritz, 
105 N.J. 42, 58 (1987)

(adopting the United States Supreme Court's two-prong test from

Strickland v. Washington, 
466 U.S. 668, 687 (1984)).             Prejudice

means   "a    reasonable   probability"    the   deficient    performance

"materially contributed to defendant's conviction."           Ibid.

     In this case, the trial court's conclusion that defendant

failed to establish a prima facie case of ineffective assistance

of counsel is amply supported by the credible evidence in the

record. Regarding the first element of the prima facie test, the

PCR judge rejected defendant's claim that his trial counsel was

ineffective     because    he    failed   to   submit   a    presentencing

memorandum.    The court found that although a sentencing memorandum

to substantiate defendant's health issues would have been helpful

                                      7                               A-3973-16T2
to the sentencing judge, a careful review of       the sentencing

transcript showed that the court was well aware of the defendant's

claimed health ailments.   The PCR judge noted that the sentencing

judge's finding that defendant never sought medical treatment

throughout the pretrial process despite being released on the HEDS

bracelet program in order to deal with some of his claimed medical

issues severely undercut the credibility of his alleged medical

condition.    The PCR judge also noted that defendant testified at

sentencing that he "postponed these procedures because of the

bracelet" and that he "wanted to at least keep some dignity when

[he went to] get a colonoscopy." This, the PCR judge found, showed

that defendant's health issues were not as urgent as he claimed.

     Defendant's contention that he was advised by trial counsel

that he would be sentenced to time served is not supported by the

record and belied by his signed plea agreement and the transcript

of the plea hearing.

     Defendant cannot argue that his trial counsel was ineffective

for failing to file a motion to dismiss the indictment as he

expressly waived that argument by virtue of his plea agreement.

     Finally, having failed to file a motion to withdraw his plea

before sentencing, defendant cannot seek to void his plea in a PCR

proceeding.   A motion to withdraw a plea, R. 3:21-1, is separate

and distinct from post-conviction relief, R. 3:22.        Thus, a

                                 8                         A-3973-16T2
withdrawal of plea requires a separate and distinct motion made

before sentencing, unless the court determines that the movant has

demonstrated a "manifest injustice."             R. 3:21-1.    See also, State

v. O'Donnell, 
435 N.J. Super. 351 (App. Div. 2014).                 There is no

manifest injustice demonstrated in this case.                The trial court's

finding   that   defendant's    plea       was   knowing   and   voluntary     is

supported   by   both   the   signed   plea      agreement    and   defendant's

testimony at the plea hearing.

      Even if we were to consider defendant's arguments concerning

the withdrawal of his guilty plea, they have no merit. In assessing

whether a guilty plea can be withdrawn, courts consider four

factors: "(1) whether the defendant has asserted a colorable claim

of innocence; (2) the nature and strength of defendant's reasons

for withdrawal; (3) the existence of a plea bargain; and (4)

whether withdrawal would result in unfair prejudice to the State

or unfair advantage to the accused."              State v. Slater, 
198 N.J.
 145, 150 (2009).        See also R. 3:9-3.         Here, defendant has not

satisfied the factors for withdrawal of a guilty plea because he

has not presented any colorable claim of innocence, has not

presented a strong reason for withdrawal, there was a plea bargain,

and it would unfairly prejudice the State to allow defendant to

withdraw his guilty plea at this time.

     Affirmed.

                                       9                                A-3973-16T2