STATE OF NEW JERSEY v. IVAN LOPEZ

NOT FOR PUBLICATION WITHOUT THE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-1216-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

IVAN LOPEZ,

     Defendant-Appellant.
_____________________________

                    Submitted January 15, 2019 – Decided January 28, 2019

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 13-08-
                    1472.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Anderson D. Harkov, Designated Counsel,
                    on the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Lisa Sarnoff
                    Gochman, of counsel and on the brief).

PER CURIAM
      Defendant Ivan Lopez appeals from a June 16, 2017 order denying his

petition for post-conviction relief (PCR) after an evidentiary hearing.        We

affirm.

      Defendant was arrested for armed robbery after he entered an auto-repair

shop and, while brandishing a knife, demanded money from the owner. After

the robbery, defendant and his brother, Julio C. Lopez, fled the scene.

      Defendant was indicted and charged with one count of first-degree armed

robbery,  N.J.S.A. 2C:15-1; two counts of third-degree possession of a weapon

for unlawful purposes,  N.J.S.A. 2C:39-4(d); one count of fourth-degree

unlawful possession of a weapon,  N.J.S.A. 2C:39-5(d); and two counts of third-

degree terroristic threats,  N.J.S.A. 2C:12-3.     Defendant's brother was also

indicted and charged with one count of first-degree armed robbery.

      Pursuant to a negotiated plea agreement, defendant pled guilty to one

count of first-degree armed robbery. In exchange for his guilty plea, the State

agreed to dismiss the remaining counts in the indictment, but reserved the right

to request that defendant be sentenced to an extended term in accordance with

 N.J.S.A. 2C:43-7.1. The State also agreed to sentence defendant's brother to a

custodial term of three years without any parole disqualifier on the first -degree

armed robbery charge.


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      Before accepting the plea, the court determined that it was entered

knowingly, voluntarily and intelligently, and with a sufficient factual basis.

Shortly after the plea hearing, the State filed an application for an extended term.

The court concluded that defendant's prior record warranted an extended term

and sentenced him to life imprisonment without the possibility of parole.

Defendant filed an appeal challenging the sentence, and we affirmed. State v.

Ivan Lopez, No. A-3476-13 (App. Div. Oct. 27, 2014).

      Defendant filed a pro se PCR petition which he later amended. After

counsel was appointed, defendant submitted a certification in further support of

his petition and assigned counsel filed a supporting brief.

      Defendant alleged that his trial attorney failed to investigate the victim's

criminal history and pursue his claim of self-defense. Defendant also claimed

his trial attorney incorrectly advised him that if he pled guilty, he would receive

a more favorable sentence than life imprisonment. Finally, defendant claimed

that he entered his guilty plea as a result of counsel's ineffectiveness, and it was

neither knowing nor voluntary.

      On July 22, 2016, after hearing oral arguments, the first PCR judge, who

also presided over defendant's plea and sentencing hearings, granted defendant's

request for an evidentiary hearing. Judge Vincent N. Falcetano, Jr., the second


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PCR judge, conducted the evidentiary hearing where defendant and his trial

counsel testified.

      On June 16, 2017, Judge Falcetano rendered a written opinion and order

and concluded that defendant failed to satisfy either prong of the two-part test

for ineffective assistance of counsel detailed in Strickland v. Washington,  466 U.S. 668 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz,

 105 N.J. 42 (1987). 1 Judge Falcetano also determined that defendant failed to

satisfy the four factors detailed in State v. Slater,  198 N.J. 145, 157-58 (2009),

to warrant a withdrawal of his guilty plea. 2


1
 To establish a prima facie case of ineffective assistance of counsel, a defendant
must prove:

      First, . . . that counsel's performance was deficient. This requires showing
      that counsel made errors so serious that counsel was not functioning as
      the “counsel” guaranteed the defendant by the Sixth Amendment. Second,
      the defendant must show that the deficient performance prejudiced the
      defense. This requires showing that counsel's errors were so serious as to
      deprive the defendant of a fair trial, a trial whose result is reliable.

      [Strickland,  466 U.S.  at 687]
2
  The four Slater factors are: “(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.”
Ibid. “Trial courts should consider and balance all of the factors discussed above
in assessing a motion for withdrawal of a plea. No factor is mandatory; if one
is missing, that does not automatically disqualify or dictate relief.” Id. at 162.
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      With respect to prong one of defendant's ineffective assistance claim,

Judge Falcetano determined that based upon trial counsel's conversations with

defendant and a review of video footage showing that defendant was the

aggressor in the robbery, trial counsel made the "well-reasoned" strategic choice

that asserting a claim of self-defense would not benefit defendant. The court

similarly concluded that trial counsel's failure to investigate the victim's

criminal background was a reasonable strategic decision as that background

involved illegal activity involving defendant. Further, the court noted that even

if such evidence legitimately impeached the victim's credibility, a second victim

witnessed the robbery and was available to testify against defendant. After

considering all of the evidence, Judge Falcetano concluded that "defendant's

claim of self-defense [was] not credible."

      Judge Falcetano also reviewed the transcript of the plea hearing and

concluded that "defendant was well aware of the penal consequences of his

plea." In addition, the court noted that rather than sitting "idly by as her client

was sentenced to life in prison," trial counsel challenged the State's application

for a mandatory extended term based on the ground that defendant's out-of-state

convictions were not "substantially equivalent" crimes under  N.J.S.A 2C:43-7.1.




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      As to prong two, Judge Falcetano determined that based on the testimony

at the evidentiary hearing, defendant "made a knowing, voluntary, and

intelligent decision to plead guilty in exchange for the State's offer of [a]

three[-]year[] flat [sentence] with no parole disqualifier for his brother." The

court described defendant's and his brother's pleas as "package deal[s]" and

concluded that defendant failed to establish that he would have rejected the plea

and gone to trial but for trial counsel's alleged errors.

      With respect to defendant's request to withdraw his guilty plea, Judge

Falcetano determined that defendant failed to satisfy any of the Slater factors.

The court characterized defendant's claim that he was acting in self-defense, as

"unsubstantiated, self-serving" and not credible. Next, the court concluded that

defendant failed to demonstrate "fair and just reasons" for the withdrawal,

Slater,  198 N.J. at 159, as there was "no credible evidence . . . that [trial counsel]

was derelict in her duties or that she coerced defendant into accepting the plea."

The court explained that defendant's plea was voluntary and with full knowledge

of the sentencing implications. Finally, Judge Falcetano concluded that the State

would be prejudiced if defendant was permitted to withdraw his plea as his

brother, who received a reduced sentence based on defendant's plea agreement,

completed his sentence and could not be resentenced.


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      On appeal, defendant raises the following point:

            POINT I

            THE POST-CONVICTION RELIEF COURT ERRED
            WHEN IT FAILED TO CONCLUDE THAT TRIAL
            COUNSEL'S   FAILURE    TO   INVESTIGATE
            DEFENDANT'S CLAIM OF SELF[-]DEFENSE
            DEPRIVED      DEFENDANT       OF    HIS
            CONSTITUTIONAL RIGHT TO THE EFFECTIVE
            ASSISTANCE OF COUNSEL.

      We find no merit to the contentions raised by defendant and affirm for the

reasons stated by Judge Falcetano in his thirty-five page written decision of June

16, 2017. We agree with Judge Falcetano that the defendant failed to establish

either prong of the Strickland test and similarly failed to carry his burden under

Slater to withdraw his guilty plea.

      Affirmed.




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