STATE OF NEW JERSEY v. MICHAEL QUEZADA

NOT FOR PUBLICATION WITHOUT THE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-0536-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL QUEZADA, a/k/a
MICHAEL RODRIGUEZ,

     Defendant-Appellant.
______________________________

                    Submitted October 18, 2018 – Decided February 7, 2019

                    Before Judges Simonelli and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 09-12-
                    2019, 09-12-2025, 10-05-0715, 13-04-0492 and 14-07-
                    0834.

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

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Joie D. Piderit, Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Michael Quezada appeals from the August 17, 2017 order of

the Law Division denying his petition for post-conviction relief (PCR) without

an evidentiary hearing. We affirm.

                                      I.

      The following facts are derived from the record. On December 2, 2009, a

Middlesex County grand jury returned two indictments against defendant.

Indictment No. 09-12-2019 contained six counts relating to the attempted theft

of an automobile on August 10, 2009. Indictment No. 09-12-2025 contained

four counts relating to receipt of a stolen automobile on October 19, 2009. The

grand jury issued a third indictment against defendant on May 13, 2010.

Indictment No. 10-05-0715 contained eight counts relating to the burglary of a

boat on January 25, 2010.

      On October 12, 2010, defendant entered a guilty plea to count two of

Indictment No. 09-12-2019, conspiracy to commit theft by unlawful taking,

 N.J.S.A. 2C:5-2 and  N.J.S.A. 2C:20-3, count two of Indictment No. 09-12-2025,

conspiracy to receive stolen property,  N.J.S.A. 2C:5-2 and  N.J.S.A. 2C:20-7,

and count two of Indictment No. 10-05-0715, conspiracy to commit burglary,




                                                                       A-0536-17T1
                                       2 N.J.S.A. 2C:5-2 and  N.J.S.A. 2C:18-2. Each count to which defendant entered

a guilty plea was a third-degree offense.

      On January 10, 2011, the trial court imposed concurrent sentences of 180

days in the county jail and five years of probation on each of the three counts to

which defendant pled guilty. Pursuant to a plea agreement, all other counts of

the three indictments were dismissed.

      On April 11, 2013, the grand jury returned a fourth indictment against

defendant.   Indictment No. 13-04-0492 charged him with obstructing the

administration of law,  N.J.S.A. 2C:29-1, and hindering an investigation,

 N.J.S.A. 2C:29-3(b)(4). Both are fourth-degree offenses.

      On July 24, 2014, the grand jury returned a fifth indictment against

defendant. Indictment No. 14-07-0834 contained twelve counts alleging various

third- and fourth-degree offenses relating to debit and credit cards which had

been stolen on or about January 17 and 18, 2012.

      On February 6, 2015, defendant entered a guilty plea to the fourth-degree

obstructing the administration of law count in Indictment No. 13-04-0492, to

count five of Indictment No. 14-07-0834, third-degree attempted fraudulent use

of a credit card,  N.J.S.A. 2C:5-1 and  N.J.S.A. 2C:21-6(h), and to violation of




                                                                          A-0536-17T1
                                        3
each of the three concurrent probation sentences imposed as a result of his first

guilty plea.

      On March 30, 2015, the trial court sentenced defendant, in accordance

with his plea agreement, to time served on the obstruction charge and to four

concurrent five-year prison terms for the credit card offense and the three

violations of parole. In accordance with the plea agreement, the remaining

counts of the 2013 and 2014 indictments were dismissed.

      Defendant appealed only his sentence.       On September 28, 2015, we

affirmed the sentence. State v. Quezada, No. A-4176-14 (App. Div. Sept. 28,

2015). On January 12, 2016, the Supreme Court denied defendant's petition for

certification. State v. Quezada,  224 N.J. 124 (2016).

      On October 12, 2016, defendant filed a petition for PCR. Defendant's

petition did not specify the factual or legal basis of his claims and was not

accompanied by a certification or affidavit. A brief filed by counsel in support

of defendant's petition asserted that his trial counsel was ineffective because of

a failure adequately to consult or communicate with defendant, and review

discovery. In addition, the brief asserted that trial counsel failed adequately to

investigate a defense, including not pursuing a witness who defendant believed

would provide exculpatory testimony. As a result, the brief argues, defendant


                                                                          A-0536-17T1
                                        4
was prevented from participating in his defense, depriving him of the ability to

make a knowing and voluntary plea.

      The trial court scheduled a non-evidentiary hearing on the petition. The

judge who presided when defendant entered his plea and who sentenced him

also presided at the hearing. Prior to the hearing, defendant's counsel informed

the court in writing that defendant had been deported to the Dominican Republic.

The court granted counsel's request to have defendant appear at the hearing by

Skype or telephone. On the day of the hearing, Skype was not functioning. The

court, however, made numerous unsuccessful attempts to contact defendant at

the telephone number provided by his counsel. Defendant's counsel did not

request an adjournment of the hearing and did not object to the court proceeding

in defendant's absence. The court, therefore, proceeded to hear arguments from

counsel.

      In an oral opinion, the court denied the petition. The court noted that

defendant had not submitted a certification in support of his claims, leaving the

record absent of factual support for the assertions in his brief regarding

consultation with his attorney, review of discovery, or the existence of a witness

who was prepared to offer exculpatory testimony.          As a result, the court

concluded defendant had not established a prima facie showing of deficient


                                                                          A-0536-17T1
                                        5
representation by his trial counsel warranting an evidentiary hearing.              In

addition, the court concluded that defendant did not make a prima facie showing

that but for the alleged deficiencies in his trial counsel's representation, he would

have received a more favorable outcome. The court noted that defendant was

facing fifteen years of incarceration on the violation of probation charges and

an additional ten years of incarceration on the charges for which he was pleading

guilty, but instead received only a five-year sentence. The court considered that

outcome to be very favorable to defendant. In light of the fact that defendant

proffered no evidence that he was either likely to prevail at trial or that his

counsel could have negotiated a more favorable plea agreement, the court

concluded that an evidentiary hearing on this point was not warranted. On

August 17, 2017, the court entered an order denying defendant's PCR petition

without holding an evidentiary hearing.

      This appeal followed. Defendant raises the following arguments:

             POINT I

             THE TRIAL COURT ERRED IN PROCEEDING
             WITH ORAL ARGUMENT OF QUEZADA'S CLAIM
             FOR POST-CONVICTION RELIEF WITHOUT
             QUEZADA'S PRESENCE OR PARTICIPATION.




                                                                             A-0536-17T1
                                         6
            POINT II

            THE TRIAL COURT ERRED IN DENYING
            QUEZADA     AN EVIDENTIARY HEARING
            CONCERNING HIS CLAIM OF INADEQUATE
            ASSISTANCE.

                                       II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose,  129 N.J. 451, 459 (1992). Under Rule 3:22-

2(a), a criminal defendant is entitled to post-conviction relief if there was a

"[s]ubstantial denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or laws of the State of

New Jersey[.]"    "A petitioner must establish the right to such relief by a

preponderance of the credible evidence." Preciose,  129 N.J. at 459 (citations

omitted). "To sustain that burden, specific facts" that "provide the court with an

adequate basis on which to rest its decision" must be articulated.       State v.

Mitchell,  126 N.J. 565, 579 (1992).

      In determining whether a defendant is entitled to relief on the basis of

ineffective assistance of counsel, New Jersey courts apply the two-prong test

articulated by the United States Supreme Court in Strickland v. Washington,  466 U.S. 668, 687 (1984), and United States v. Cronic,  466 U.S. 648, 658-60 (1984).

Preciose,  129 N.J. at 463; see State v. Fritz,  105 N.J. 42, 49-50 (1987). Under

                                                                          A-0536-17T1
                                        7
the first prong of the Strickland test, a "defendant must show that [defense]

counsel's performance was deficient."  466 U.S.  at 687. Under the second prong,

a defendant must demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

      We have carefully reviewed defendant's arguments in light of the record

and applicable legal principles, and are satisfied that the trial court's findings of

fact and conclusions of law are well supported. Defendant did not submit a

certification or affidavit in support of his petition for PCR. While his counsel

made various arguments in support of the petition, there is an absence of

evidence regarding the extent to which defendant's trial counsel consulted with

him, reviewed discovery, provided advice regarding his guilty plea , or

investigated the existence of a favorable witness. In addition, as the trial court

found, defendant offered no evidence to support the notion that in the absence

of alleged deficiencies in his trial counsel's performance, he would have

achieved a better outcome, either at trial or through plea negotiations. In fact,

the trial court aptly noted that defendant benefited from his counsel's negotiation

of a very favorable plea agreement.




                                                                             A-0536-17T1
                                         8
      We find defendant's argument regarding the trial court holding a non-

evidentiary hearing on the PCR petition in defendant's absence to be without

sufficient merit to warrant extended discussion. The trial court agreed to have

defendant appear by telephone. Multiple attempts to reach him at the number

provided were unsuccessful.     Counsel did not ask for an adjournment and

proceeded with the hearing without objection, making defendant's arguments to

the court. Defendant effectively waived his presence at the hearing. The record

does not demonstrate an abuse of discretion by the trial court.

      Affirmed.




                                                                       A-0536-17T1
                                       9