STATE OF NEW JERSEY v. JOSE ALEMAN

NOT FOR PUBLICATION WITHOUT THE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-4222-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOSE ALEMAN, a/k/a ANGEL
ALEMAN, JOSE ALEMAN-ACOSTA,
JOE ALEMAN, TAKAKA ALEMAN,
TATICA ALEMAN, and JOSEPH
ANGEL ALEMAN,

     Defendant-Appellant.
____________________________

              Submitted March 15, 2018 – Decided April 10, 2018

              Before Judges Simonelli and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              08-08-1998.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Janet A. Allegro, Designated
              Counsel, on the briefs).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (Mario C. Formica,
              Deputy First Assistant Prosecutor, of counsel
              and on the brief).

PER CURIAM
       Defendant Jose Aleman appeals from the March 29, 2017 Law

Division order, which denied his petition for post-conviction

relief (PCR) following an evidentiary hearing.           We affirm.

       Following a jury trial, defendant was convicted of first-

degree    murder,    
N.J.S.A.   2C:11-3(a)(1)    and   (2);   second-degree

unlawful possession of a weapon, 
N.J.S.A. 2C:39-4(a); second-

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

fourth-degree     aggravated    assault,    
N.J.S.A.   2C:12-1(b)(3);      and

second-degree certain persons not to have weapons, 
N.J.S.A. 2C:39-

7.     The charges stemmed from the shooting death of Pong Yu and

injuring of Carlos Smith.         The State's evidence included several

witnesses to the murder, surveillance videotape that depicted the

murder in its entirety, and an audio-video recording of defendant's

confession.      The trial judge sentenced defendant to an aggregate

50.5     years   with   an   eighty-five     percent    period   of    parole

ineligibility subject to the no Early Release Act (NERA), 
N.J.S.A.

2C:43-7.2.

       On direct appeal, we affirmed defendant's conviction, finding

the evidence against him was "nearly overwhelming."                State v.

Aleman, No. A-5010-10 (App. Div. Dec. 7, 2012) (slip op. at 11,

16, 19). Our Supreme Court denied certification. State v. Aleman,


215 N.J. 486 (2013).



                                        2                             A-4222-16T3
     Defendant filed a PCR petition. In a certification, defendant

said trial counsel told him prior to the trial that the State had

offered to recommend a fifteen-year prison term if he agreed to

plead guilty to aggravated manslaughter.              Defendant also said

trial counsel stated she would try to obtain a ten-year deal, but

later told him the State rejected the counter-offer.              Defendant

argued   that   trial   counsel    rendered     ineffective   assistance    by

failing to advise the State he was still willing to accept the

original fifteen-year offer, thus forcing him to go to trial.               In

opposition,     the   assistant    prosecutor    submitted    certification,

stating the State did not extend a fifteen-year offer to defendant.

     The PCR judge denied the petition without conducting an

evidentiary hearing to evaluate the competing certifications.               We

reversed and remanded for an evidentiary hearing on the merits.

State v. Aleman, No. A-3860-14 (App. Div. June 20, 2016) (slip op.

at 5).

     At the remand hearing, which occurred before a different PCR

judge,   the    assistant   prosecutor     testified,     and   documentary

evidence confirmed,1 that the State never offered defendant a

fifteen-year plea deal.           Rather, the State originally offered



1
  The confirming documentary evidence included correspondence from
trial counsel to the prosecutor, correspondence from the
prosecutor to trial counsel, and a pre-trial memorandum.

                                      3                              A-4222-16T3
"life-do-30,"      and    later   offered    first-degree        aggravated

manslaughter with a recommendation not to exceed twenty-four years

subject to NERA.      Trial counsel tried to get the State to come

down from its offer, but the State never did.

       The PCR judge determined defendant was not entitled to a full

evidentiary hearing because he failed to establish a prima facie

case of ineffective assistance of counsel.           The judge emphasized

defendant's claim of ineffective assistance of counsel was nothing

more    than   a   bald   assertion   contradicted    by   the   assistant

prosecutor's testimony and documentary evidence.

       On appeal, defendant raises the following contentions:

            LEGAL ARGUMENT

            POINT I

            THE COURT ERRED IN DENYING DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF SINCE HE
            MET HIS BURDEN THAT HE FAILED TO RECEIVE
            EFFECTIVE LEGAL REPRESENTATION AT THE TRIAL
            LEVEL.

            (A) THE     PREVAILING    LEGAL    PRINCIPLES
            REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF
            COUNSEL ARISING OUT OF EVIDENTIARY HEARINGS
            AND PETITIONS FOR POST CONVICTION RELIEF.

            (B) THE PCR COURT ERRONEOUSLY FOUND THAT THE
            STATE PROVIDED UNCONTROVERTED EVIDENCE THAT
            THEY DID NOT OFFER DEFENDANT A FIFTEEN YEAR
            PLEA DEAL AND ANALYZED THE EVIDENCE UNDER THE
            WRONG LEGAL STANDARD.




                                      4                             A-4222-16T3
    Our Supreme Court has established the standard of review in

PCR cases where the court held an evidentiary hearing:

         In reviewing a PCR court's factual findings
         based on live testimony, an appellate court
         applies a deferential standard; it "will
         uphold the PCR court's findings that are
         supported by sufficient credible evidence in
         the record." Indeed, "[a]n appellate court's
         reading of a cold record is a pale substitute
         for a trial judge's assessment of the
         credibility of a witness he has observed
         firsthand."    However,    a   "PCR    court's
         interpretation of the law" is afforded no
         deference, and is "reviewed de novo." "[F]or
         mixed questions of law and fact, [an appellate
         court] give[s] deference . . . to the
         supported factual findings of the trial court,
         but review[s] de novo the lower court's
         application of any legal rules to such factual
         findings."

         [State v. Pierre, 
223 N.J. 560, 576-77 (2015)
         (citations omitted).]

    To establish a prima facie claim of ineffective assistance

of counsel, the

         defendant must satisfy two prongs. First, he
         must demonstrate that counsel made errors "so
         serious that counsel was not functioning as
         the 'counsel' guaranteed the defendant by the
         Sixth    Amendment."         An     attorney's
         representation is deficient when it "[falls]
         below     an     objective     standard     of
         reasonableness."

              Second, a defendant "must show that the
         deficient    performance    prejudiced    the
         defense." A defendant will be prejudiced when
         counsel's errors are sufficiently serious to
         deny him a "fair trial."       The prejudice
         standard is met if there is "a reasonable

                               5                          A-4222-16T3
            probability    that,   but   for    counsel's
            unprofessional errors, the result of the
            proceeding would have been different."      A
            "reasonable probability" simply means a
            "probability    sufficient    to    undermine
            confidence in the outcome" of the proceeding.
            [State v. O'Neil, 
219 N.J. 598, 611 (2014)
            (quoting Strickland v. Washington, 
466 U.S. 668, 687-88, 694 (1984)).]

"[I]n order to establish a prima facie claim, [the defendant] must

do more than make bald assertions that he was denied the effective

assistance    of   counsel.     He   must   allege   facts   sufficient       to

demonstrate counsel's alleged substandard performance."               State v.

Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999). The defendant

must establish, by a preponderance of the credible evidence, that

he is entitled to the requested relief.          State v. Nash, 
212 N.J.
 518, 541 (2013).

     We have considered defendant's contentions in light of the

record and applicable legal principles and conclude they are

without    sufficient   merit   to   warrant   discussion    in   a   written

opinion.    R. 2:11-3(e)(2).    We are satisfied that defendant failed

to establish a prima facie claim of ineffective assistance of

counsel, and affirm substantially for the reasons the PCR judge

expressed in her oral opinion.

     Affirmed.




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