STATE OF NEW JERSEY v. MATTHEW A. MENDES
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4708-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MATTHEW A. MENDES,
Defendant-Appellant.
__________________________
Submitted October 2, 2019 – Decided October 18, 2019
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 14-01-0007.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson David Harkov, Designated
Counsel, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Roberta DiBiase,
Supervising Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Matthew Mendes, who pled guilty in 2014 to fourth-degree
stalking, appeals from the May 14, 2018 Law Division order denying his petition
for post-conviction relief (PCR). We affirm.
I
The record establishes the following facts and procedural history. On
October 20, 2013, D.D.,1 an officer with the Lakewood Police Department,
observed defendant standing at the end of his driveway facing his home and then
walking into a nearby wooded area. The next day, D.D. reported the incident to
the Manchester Police. He told the police that in June 2013, he arrested
defendant for stalking an employee at a local behavioral health center, where
defendant previously received treatment.
On October 26, 2013, Manchester Police responded to the area
surrounding Manchester Middle School to investigate the report of a suspicious
person. The officers observed defendant, who matched a recently issued Police
Officer Safety Flyer, walking through a parking lot. After a brief inquiry, the
officers released defendant. Moments later, D.D. flagged the officers down and
told them that when he arrived home earlier, he observed defendant "standing
on the sidewalk staring into his [front] glass door." D.D. further advised
1
We refer to the victim by his initials to protect his privacy.
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defendant "has several mental health disorders," and expressed concern that
defendant posed a threat to his family's safety. D.D. also reported that defendant
was found guilty, in early October, in the case where D.D. arrested defendant.
The officers then spoke to D.D.'s neighbor, who said he saw defendant
walk past D.D.'s home on three separate occasions earlier that day, and on two
occasions earlier in the week. The neighbor described defendant's actions as
"alarming."
Based on the information provided by D.D. and his neighbor, the police
filed stalking and harassment charges against defendant, arresting him the next
day. On January 7, 2014, an Ocean County Grand Jury returned an indictment
charging defendant with fourth-degree stalking, in violation of N.J.S.A. 2C:12-
10(b).
On February 14, 2014, defendant appeared with counsel for arraignment.
At that time, the State extended a plea offer of probation, conditioned on
defendant serving 180 days in the county jail, in exchange for defendant
pleading guilty to fourth-degree stalking. After reviewing the plea agreement
with counsel, defendant appeared in court later that afternoon. Defendant
confirmed he reviewed the plea agreement with counsel and that he understood
he was pleading guilty to stalking. He claimed he could read only "[a] little";
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3
when asked how far he went in school, he responded, "Like fourth grade." 2
Nevertheless, defendant confirmed that his counsel helped him review the plea
form by reading it to him and answering all of his questions.
While defendant contended he did not know where Officer D.D. lived, he
acknowledged he walked by his house almost every day. The judge then asked
defendant, "And [Officer D.D.] lived in the house [of] the sidewalk you were
walking in front of?" Defendant replied, "Yeah, yeah." Defendant also
acknowledged stopping at "the stop sign at Beacon Street," which he admitted
is "right next to [D.D.'s] house." Defendant further acknowledged he understood
the plea agreement, which included a no contact order. The judge then accepted
defendant's guilty plea to one count of fourth-degree stalking.
On April 25, 2014, the same judge sentenced defendant to a two-year term
of probation. He also sentenced him to 180 days in the Ocean County jail, with
credit for time served, and ordered that defendant have no contact with the D.D.
or his family.
On August 4, 2014, police executed a warrant for defendant's arrest for
violating his probation. The next day, assigned counsel filed a notice of appeal
2
At a later hearing on the PCR petition under review, defendant admitted he is
a high school graduate.
A-4708-17T3
4
of defendant's April 25, 2014 conviction, and later obtained leave to file as
within time. On September 12, 2014, the Law Division negatively terminated
defendant's probation. On March 2, 2015, defendant filed a notice of withdrawal
of his appeal and we dismissed the appeal the next day.
On December 19, 2016, defendant filed a pro se petition for PCR, alleging
he "was setup . . ." Through assigned counsel, defendant later filed an amended
PCR petition, alleging his plea counsel provided ineffective assistance of
counsel because he "failed to investigate [his] defense" and recommended he
plead guilty "when there was no factual basis for the guilty plea." He also
alleged his appellate counsel provided ineffective assistance when he failed "to
raise the issue" that his "factual basis was insufficient to support the fourth -
degree stalking conviction."
On August 22, 2017, the same judge who accepted defendant's plea and
sentenced him, heard oral argument on defendant's PCR petition. Defense
counsel argued the transcript of the plea hearing "shows there was no factual
basis" for stalking since defendant "denied knowing where [D.D.] lived ."
Defense counsel further argued that "because there's not a factual basis for the
charge . . . this [c]ourt is required to grant . . . [PCR]."
A-4708-17T3
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The PCR judge rejected these arguments, explaining his reasons in a nine-
page written opinion. The judge found defendant received an "extremely
favorable sentence of probation with the only custodial condition being time
already served, which was 180 days . . . . when defendant could have served up
to eighteen months in state prison." Based on the favorable sentence plea
counsel obtained for defendant, the judge concluded defendant failed to satisfy
either Strickland prong.3 He also noted defendant failed to assert he would have
gone to trial instead of pleading guilty.
The judge recounted what occurred at defendant's plea hearing:
[P]rior to pleading guilty, [defendant] reviewed the
discovery with [plea] counsel and acknowledged that
fact on the record. The discovery included the police
reports in which [D.D.'s] neighbor . . . reported that
[defendant] had passed by D.D.'s house on three
separate occasions and that his behaviors were
'alarming.' [Defendant,] having reviewed this
discovery with his attorney, stated repeatedly under
oath that he was pleading guilty to the offense of
stalking and that he was doing so voluntarily.
[Defendant] attested on the record that he had went over
the plea form with his attorney, who helped him read it,
and that his attorney answered all of his questions.
In addition to finding that defendant provided a factual basis for his guilty
plea, that the plea was voluntary, and that defendant understood the
3
Strickland v. Washington, 466 U.S. 668 (1984).
A-4708-17T3
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consequences of his guilty plea, the judge also analyzed the four factors for
withdrawing a guilty plea set forth in State v. Slater, 198 N.J. 145, 156 (2009),
and found each factor did not favor allowing defendant to withdraw his guilty
plea. The judge therefore denied defendant's petition without an evidentiary
hearing.
This appeal followed, with defendant presenting the following arguments:
POINT ONE THE FAILURE OF TRIAL COUNSEL,
TO ASSURE THERE WAS A FACTUAL
BASIS FOR THE CRIME DEFENDANT
WAS PLEADING GUILTY TO, DESPITE
THE FACT COUNSEL HIMSELF
ATTEMPTED TO ELICIT THE
FACTUAL BASIS, DEPRIVED
DEFENDANT OF HIS
CONSTITUTIONAL RIGHT TO THE
EFFECTIVE ASSISTANCE OF
COUNSEL.
POINT TWO THE PCR COURT ERRED WHEN IT
FAILED [TO] CONDUCT AN
EVIDENTIARY HEARING ON THE
INEFFECTIVE ASSISTANCE OF
COUNSEL ISSUE AND THE LACK OF A
FACTUAL BASIS.
II
To show ineffective assistance of counsel, a defendant must meet the two-
pronged test set forth in Strickland, 466 U.S. at 668, adopted by our Supreme
Court in State v. Fritz, 105 N.J. 42 (1987). First, a "defendant must demonstrate
A-4708-17T3
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[] that counsel's performance was deficient." State v. Parker, 212 N.J. 269, 279
(2012) (citing Strickland, 466 U.S. at 687). Second, "a defendant must also
establish that the ineffectiveness of his attorney prejudiced his defense." Ibid.
When the claim of ineffective assistance relates to a guilty plea, a defendant
must satisfy a modified Strickland standard:
When a guilty plea is part of the equation, . . . 'a
defendant must show that (i) counsel's assistance was
not "within the range of competence demanded of
attorneys in criminal cases"; and (ii) "that there is a
reasonable probability that, but for counsel's errors,
[the defendant] would not have pled guilty and would
have insisted on going to trial."'
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)
(citations omitted) (second alteration in original)).]
Furthermore, to obtain relief under the second prong, "a petitioner must
convince the court that a decision to reject the plea bargain would have been
rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372
(2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)).
Bald assertions of ineffective assistance are not enough. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A petitioner "must
allege facts sufficient to demonstrate counsel's alleged substandard
A-4708-17T3
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performance[,]" and the court must view the facts alleged in the light most
favorable to the petitioner. Ibid.
A person is guilty of stalking if he or she "purposefully or knowingly
engages in a course of conduct directed at a specific person that would cause a
reasonable person to fear for his safety or the safety of a third person or suffer
some other emotional distress." N.J.S.A. 2C:12-10(b). The term "[c]ourse of
conduct" includes "repeatedly maintaining a visual or physical proximity to a
person; . . . by any action, method, device, or means . . ." N.J.S.A. 2C:12-
10(a)(1). The term "repeatedly" means "on two or more occasions." Ibid.
A judge must determine that there is "a factual basis for the [guilty] plea
. . ." R. 3:9-2. The factual basis for the plea can be established in either of two
ways: "defendant may either explicitly admit guilt with respect to the elements"
or may acknowledge underlying "facts constituting the essential elements of the
crime." State v. Campfield, 213 N.J. 218, 231 (2013) (citation omitted); see
State v. Gregory, 220 N.J. 413, 419-20 (2015).
While defendant contended at the plea hearing he did not know where
Officer D.D. lived, he acknowledged he walked by D.D.'s house almost every
day. The judge then asked defendant, "And [D.D.] lived in the house [of] the
sidewalk you were walking in front of?" Defendant replied, "Yeah, yeah." The
A-4708-17T3
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judge found this admission, together with defendant's acknowledgment that he
and his attorney together reviewed the discovery, which included police reports
documenting defendant's stalking behavior, provided a sufficient factual basis
for accepting the plea.
After defendant entered his plea, he wrote two letters to the court and two
letters to plea counsel. In the letters, defendant registered complaints about his
plea agreement providing for probation, rather than pretrial intervention; in
addition, he expressed concerns about his sentencing date and his bail. In none
of the letters did defendant assert a claim of innocence or a claim that he did not
intend to enter a guilty plea to the stalking charge.
We find no basis to disturb the PCR judge's decision to deny defendant's
petition. Defendant failed to establish either prong of Strickland – he received
a favorable plea agreement relative to his overall exposure, and otherwise failed
to establish he suffered any prejudice.
The PCR judge correctly found defendant failed to make a prima facie
showing that his plea counsel prejudiced his defense. Considering defendant's
history with D.D. – a police officer who recently arrested him – and the
observations of defendant in front D.D.'s house witnessed by D.D. and his
neighbor, defendant failed to present any rational argument for rejecting the
A-4708-17T3
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State's plea offer. See State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div.
2014) (quoting Padilla, 559 U.S. at 372). Nor did defendant assert such a claim
in his PCR petition or supporting certification.
We also reject defendant's contention that the PCR judge erred by failing
to conduct an evidentiary hearing. A defendant is entitled to an evidentiary
hearing only when he or she "'has presented a prima facie [case] in support of
[PCR,]'" meaning that "the defendant must demonstrate a reasonable likelihood
that his or her claim will ultimately succeed on the merits." State v. Marshall,
148 N.J. 89, 158 (first alteration in original) (quoting State v. Preciose, 129 N.J.
451, 462-63 (1992)). A hearing was not required here because defendant failed
to establish a prima facie case for PCR, there were no material issues of disputed
fact that could not be resolved by reference to the existing record, and an
evidentiary hearing was not required to resolve defendant's claims. R. 3:22-
10(b).
Affirmed.
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