STATE OF NEW JERSEY v. NICHOLAS W. CEREGHINI

NOT FOR PUBLICATION WITHOUT THE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-5222-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NICHOLAS W. CEREGHINI,

     Defendant-Appellant.
__________________________

                    Submitted October 17, 2018 – Decided October 31, 2018

                    Before Judges Nugent and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment Nos. 11-12-2165,
                    13-01-0240, 13-02-0336 and 14-05-1363.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Kevin G. Byrnes, Designated Counsel, on
                    the brief).

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; Roberta Di Biase,
                    Supervising Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Nicholas Cereghini appeals from a June 28, 2017 order denying

his petition for post-conviction relief (PCR). We affirm substantially for the

reasons stated by Judge James M. Blaney in a written opinion accompanying the

order. We add the following comments.

      As the result of a comprehensive plea bargain resolving three indictments,

on October 29, 2013, defendant pled guilty to first-degree robbery, third-degree

possession of a controlled dangerous substance with intent to distribute, and

fourth-degree criminal trespass. Pursuant to an additional plea bargain, on June

23, 2014, he pled guilty to third-degree burglary and other offenses that he

committed after his October 29 guilty plea but before his scheduled sentencing

date. On September 19, 2014, the court sentenced defendant, as though he were

a second-degree offender, to nine years in prison subject to the No Early Release

Act,  N.J.S.A. 2C:43-7.2, for the first-degree robbery charge. The court also

imposed a consecutive term of three years for the burglary, and imposed

concurrent terms for all of the remaining charges. We affirmed the sentence on

direct appeal, but remanded to give defendant additional jail credits to which the

State agreed he was entitled. State v. Cereghini, No. A-1795-14 (App. Div. July

29, 2015).



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       Defendant then filed a PCR petition, claiming that his trial counsel should

have pursued a Miranda1 motion, instead of withdrawing the motion. Judge

Blaney issued a cogent written opinion explaining his reasons for denying the

PCR petition. Significantly, the judge concluded that the State had strong

evidence against defendant even without his statement, and defendant's trial

counsel obtained a very favorable plea offer for him, which would not have been

available if he had insisted on pursuing the Miranda motion. In other words, it

would not have been rational for defendant to refuse the plea bargain and instead

insist on going ahead with the Miranda motion and the trial. See State v.

Maldon,  422 N.J. Super. 475, 486 (App. Div. 2011).

       On this appeal, defendant presents the following points of argument:

             POINT I: THE DEFENDANT WAS DENIED THE
             RIGHT TO EFFECTIVE ASSISTANCE OF
             COUNSEL AS GUARANTEED BY THE SIXTH
             AMENDMENT TO THE UNITED STATES
             CONSTITUTION AND ART. I, PAR. 10 OF THE
             NEW JERSEY CONSTITUTION.

             POINT II: THE DEFENDANT IS ENTITLED TO AN
             EVIDENTIARY HEARING.




1
    Miranda v. Arizona,  384 U.S. 436 (1966).
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                                        3
      Based on our review of the record, we conclude those arguments are

without sufficient merit to warrant discussion, beyond the following brief

comments. R. 2:11-3(e)(2).

      Defendant contends that the Miranda motion would have been granted,

because the police questioned him first, and then administered the Miranda

warnings. However, defendant does not address whether it would have been

rational to pursue the motion instead of taking the plea bargain he was offered.

Additionally, defendant did not submit a certification or other legally competent

evidence explaining what allegedly ineffective advice his trial counsel gave him,

or attesting that defendant did not want to withdraw the motion. Further, the

plea transcripts disclose that defendant was well aware of his right to continue

the Miranda hearing, and he chose to abandon that course of action. At the

October 29, 2013 plea hearing, the judge stated that there was a pending Miranda

hearing but the motion would probably be withdrawn. At the June 23, 2014 plea

hearing, the judge reminded defendant that even if he confessed to the offenses,

he had a right to have hearings prior to trial. When asked, "Are you giving up

your right to those hearings?" defendant responded, "Yes."

      To prevail on his PCR petition, defendant needed to demonstrate that, due

to his attorney's ineffective representation, he pled guilty when he otherwise


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                                       4
would have insisted on going to trial. State v. DiFrisco,  137 N.J. 434, 457

(1994). Defendant also needed to establish that it would have been rational to

reject the plea offer and go to trial. Maldon,  422 N.J. Super. at 486. In his PCR

petition, defendant did not present evidence that his attorney was ineffective,

that it would have been rational to proceed with the Miranda hearing, or that

defendant did not want to waive the hearing and accept the plea deal.

Consequently, he did not present a prima facie case of ineffective assistance of

counsel, and Judge Blaney correctly decided the petition without an evidentiary

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

      Affirmed.




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