STATE OF NEW JERSEY v. AKEEM J. TORREZ

NOT FOR PUBLICATION WITHOUT THE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-0186-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AKEEM J. TORREZ a/k/a
AKEEM TORREZ,

     Defendant-Appellant.
_______________________

                   Submitted December 1, 2020 – Decided February 10, 2021

                   Before Judges Moynihan and Gummer.

                   On appeal from the Superior Court of New Jersey Law
                   Division, Hudson County, Indictment No. 13-12-2251.

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

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant appeals the denial of his post-conviction relief (PCR) petition,

in which he asserted an ineffective-assistance claim. Without an evidentiary

hearing, the PCR judge rejected defendant's claims that his first lawyer was

ineffective in not reviewing any discovery with him before entering a guilty plea

and his second lawyer was ineffective in advising him to withdraw a motion to

vacate the plea. We agree with the PCR judge's conclusions and affirm.

      To obtain relief on ineffective-assistance-of-counsel grounds, a defendant

must show that counsel's performance was deficient, and the deficiency

prejudiced the defendant. Strickland v. Washington,  466 U.S. 668, 687 (1984);

State v. Fritz,  105 N.J. 42, 58 (1987). To satisfy those two prongs, a defendant

"must prove an objectively deficient performance by defense counsel" and that

the deficiency was so prejudicial "it is reasonably probable that the result would

be altered." State v. Allegro,  193 N.J. 352, 366 (2008).

      A defendant's right to effective assistance of counsel extends to the

decision to enter a guilty plea. State v. Gaitan,  209 N.J. 339, 350-51 (2012). To

meet the Strickland prejudice prong in a claim based on a guilty plea, a

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

errors, [the defendant] would not have pleaded guilty and would have insisted

on going to trial." Hill v. Lockhart,  474 U.S. 52, 59 (1985); see also State v.


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Aburoumi,  464 N.J. Super. 326, 339 (App. Div. 2020). A defendant also "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); see also Aburoumi,  464 N.J. Super. at 339.

      When a court decides not to conduct an evidentiary hearing in a PCR

application, we review de novo the court's legal conclusions and "factual

inferences drawn from the documentary record." State v. Harris,  181 N.J. 391,

420-21 (2004); see also State v. Blake,  444 N.J. Super. 285, 294 (App. Div.

2016). Whether to conduct an evidentiary hearing on a PCR petition is within

the court's discretion. See R. 3:22-10; see also State v. Jones,  219 N.J. 298, 311

(2014). If, viewing the facts in a light most favorable to the defendant, a court

concludes the "PCR claim has a reasonable probability of being meritorious,

then the defendant should ordinarily receive an evidentiary hearing in order to

prove his entitlement to relief." Jones,  219 N.J. at 311; see also State v. Preciose,

 129 N.J. 451, 462 (1992) (finding an evidentiary hearing should be held only if

defendant presents "a prima facie claim in support of [PCR]"). To establish

entitlement to an evidentiary hearing, a defendant "must allege facts sufficient

to demonstrate counsel's alleged substandard performance." State v. Cummings,

 321 N.J. Super. 154, 170 (App. Div. 1999). Allegations that are "too vague,


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conclusory, or speculative" do not merit an evidentiary hearing.         State v.

Marshall,  148 N.J. 89, 158 (1997).          "[B]ald assertions" are not enough.

Cummings,  321 N.J. Super. at 170; see also Jones,  219 N.J. at 311-12.

      In deciding a motion to withdraw a guilty plea, a court considers: "(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." State v. Slater,  198 N.J. 145, 150 (2009);

see also State v. Lipa,  219 N.J. 323, 332 (2014).

      After his arrest, defendant told detectives that he and others had discussed

going to a neighborhood to "shoot it up" in connection with on-going disputes

they were having with residents of that neighborhood. He admitted that during

their drive they saw people in a basement apartment, walked up to a window of

the apartment, and fired their handguns. Defendant stated that he had seen the

other shooter fire into the basement-apartment window; defendant claimed the

bullet from his gun hit a brick wall. He identified himself and the other shooter

in photographs taken from a surveillance video. He also admitted to attempting

to break into a car to obtain guns.




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      Defendant was charged with first-degree murder,  N.J.S.A. 2C:11-3(a)(1)

or -3(a)(2); first-degree conspiracy to commit murder,  N.J.S.A. 2C:5-2; second-

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

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

degree attempted burglary,  N.J.S.A. 2C:5-1 and 2C:18-2.         If convicted of

murder, defendant faced a mandatory thirty-year prison sentence.

      After reaching a plea agreement with the State, defendant pleaded guilty

to one count of first-degree aggravated manslaughter,  N.J.S.A. 2C:11-4(a). The

State dismissed the remaining charges and recommended a maximum sentence

of twenty-five years imprisonment, with an eighty-five-percent period of parole

ineligibility,  N.J.S.A. 2C:43-7.2. At the plea hearing defendant testified he and

another person fired guns into the apartment knowing the victim was there and

that his death by their shots was probable. He also testified that a bullet from

the other shooter's gun killed the victim.

      Represented by a different lawyer, defendant moved to vacate the guilty

plea, asserting that it was not knowing and voluntary because his first lawyer

had not explained to him the strengths and weaknesses of the evidence or what

defenses he had but instead told him he faced life in prison if he did not accept

the plea deal. In support of that motion, defendant submitted a certification in


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which he stated he had requested copies of all discovery but had not received it

and had "constantly" told his attorney of "various defenses" that he believed

applied to him, but his attorney "did not wish to pursue any defenses," "only

would discuss taking a plea," and told him that if he "did not take a plea" he

"could face life in prison."

      Defendant subsequently withdrew the motion to vacate the plea and was

sentenced to twenty-five years imprisonment, with an eighty-five-percent period

of parole ineligibility,  N.J.S.A. 2C:43-7.2, pursuant to the plea agreement. He

appealed his sentence, which we affirmed. See State v. Torrez, No. A-004016-

16 (App. Div. Feb. 8), certif. denied,  235 N.J. 99 (2018).

      Defendant filed a PCR petition, asserting he was denied effective

assistance of counsel when his first attorney failed to review discovery with him

and his second attorney provided misleading advice that caused him to withdraw

his motion to vacate the guilty plea. In support of the petition, defendant

submitted his certification in which he stated that his first attorney "never

review[ed] discovery" with him and his second attorney "convinced" him to

withdraw the plea-withdrawal motion by telling him that he could "get me . . .

[ten] or [twelve] years if I just proceed to sentencing."




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      Following oral argument on defendant's PCR petition, Judge Patrick J.

Arre denied defendant's request for an evidentiary hearing and his petition. The

judge found defendant's claim that his first attorney failed to provide him with

discovery was nothing more than a bald assertion. As to the claim regarding his

second attorney, the judge noted that defendant had not asserted but for counsel's

error he would have insisted on going to trial; defendant stated only that his

lawyer's statements caused him to withdraw the plea-withdrawal motion. See

Aburoumi,  464 N.J. Super. at 339. The judge determined that to establish his

second lawyer's ineffective assistance prejudiced his case, defendant would have

to convince him that the motion judge would have granted the plea-withdrawal

motion – something defendant could not do "in light of the criminal liability

facing this defendant," noting defendant had confessed to the crime after his

arrest. Accordingly, Judge Arre concluded defendant had failed to establish

entitlement to an evidentiary hearing and failed to meet the two-pronged

Strickland test. We agree.

      The only support for defendant's claims is his bare-bones certification. He

faults his first attorney for not providing discovery to him but does not explain

how any withheld discovery would have altered the outcome. In his plea-

withdrawal motion certification – not his PCR-petition certification – defendant


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faults his first attorney for not considering the "various defenses" about which

defendant "constantly" told him but fails to identify what those defenses were

or how they would have altered the outcome, especially given his post-arrest

confession. Defendant faults his second attorney for the decision to withdraw

his plea-withdrawal motion but fails to articulate how that withdrawal would

have altered the outcome, much less lead to a better one. Defendant's bald

assertions fail to demonstrate counsels' assistance was ineffective or prejudicial .

      Even if we were to assume – in the absence of a specific assertion by

defendant – defendant would have rejected a plea deal and insisted on going to

trial, he has not demonstrated that decision "would have been rational under the

circumstances." Padilla,  559 U.S.  at 372. There was no upside to rejecting the

plea deal, considering the admissions defendant had made regarding the role he

played in the intentional fatal shooting of the victim. Defendant makes no

proffer as to how he would have achieved a better result by going to trial.

      Under our de novo review, Blake,  444 N.J. Super. at 294, we decline to

remand this case to the PCR court for an evidentiary hearing. Defendant failed

to establish a prima facie case, and Judge Arre properly denied his request for

an evidentiary hearing.

      Affirmed.


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