STATE OF NEW JERSEY v. DENNIS ALSTON

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2769-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DENNIS ALSTON,

     Defendant-Appellant.
________________________

                   Submitted November 1, 2021 – Decided December 10, 2021

                   Before Judges Sabatino and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 15-07-
                   0910.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique Moyse, Designated Counsel, on the
                   brief).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Alexis R. Agre, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from the December 5, 2019 denial of his petition for

post-conviction relief (PCR) without an evidentiary hearing. We affirm.

      In 2016, defendant pled guilty to two counts of first-degree aggravated

sexual assault,  N.J.S.A. 2C:14-2(a)(1), and one count of second-degree

endangering the welfare of a minor,  N.J.S.A. 2C:24-4(a).           Defendant was

sentenced in accordance with his plea agreement to an aggregate term of twenty

years, subject to a period of parole ineligibility under the No Early Release Act,

 N.J.S.A. 2C:43-7.2.      Thereafter, defendant appealed, and an excessive

sentencing panel of our court affirmed. State v. Alston, No. A-2675-16 (App.

Div. Dec. 5, 2017). Defendant did not file a petition for certification.

      For our purposes, we need not set forth the facts leading to defendant's

conviction. Instead, we turn to defendant's petition for PCR.

      In 2018, defendant filed his first PCR petition. In his pro se submission,

defendant asserted that his guilty plea was "secured in violation of his State and

Federal constitutional right to the effective assistance of trial counsel," and that

"the cumulative errors in this case mandate reversal." In an addendum attached

to his petition, defendant asserted that his trial counsel did not meet with him in

jail or prepare him for court appearances, advised him to accept the plea offer




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"because he didn't think the case was defendable," and had defendant sign his

plea agreement without ever meeting with him to explain what it entailed.

       In a supplemental submission filed by counsel on his behalf, defendant

argued that his petition should be granted because he established that he received

the ineffective assistance of counsel, or at a minimum, he should receive an

evidentiary hearing, having established a prima facie claim. In support, he cited

to counsel's failure to provide him with "full discovery and conduct pretrial

investigation," which made it "impossible" for defendant to reach an "informed

decision" about pleading guilty. Defendant also asserted that counsel failed to

file pretrial motions, or "to argue all appropriate mitigating factors and

Yarbough[1] factors at sentencing thus, [his] sentence [was] excessive."

Defendant specifically asserted that his sentences should not have been

consecutive.

       On November 7, 2019, the PCR court considered the parties' oral

arguments, and on December 11, 2019, issued an order denying defendant's

petition, as well as a comprehensive fourteen-page written decision setting forth

the court's reasons.




1
    State v. Yarbough,  100 N.J. 627 (1985).
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      In its written decision, the PCR court detailed the procedural history and

facts leading to defendant's guilty plea. 2 Addressing defendant's contention

about trial counsel's failure to provide him with discovery, the PCR court noted

defendant provided "no evidence to substantiate this claim, including in his own

certification." Moreover, the court found that his contention in thi s regard was

belied by the record of his "plea colloquy" where the defendant confirmed he

received and reviewed all discovery with his attorney.

      Turning to defendant's claims about trial counsel's failure to conduct

pretrial investigation, the PCR court observed defendant failed to provide any

explanation as to what trial counsel "failed to investigate, or how it would have

impacted the defendant's case." Here too, the court noted "defendant indicated

on the record [at his plea hearing] that he was satisfied with his attorney's

services." The court reached a similar conclusion as to defendant's contentions

about trial counsel's failure to file pretrial motions, noting defendant did not

provide any indication as to "why those motions were meritorious, or what effect

the failure to file those motions had on his case." It relied on this same reason




2
  The PCR court was presided over by the same judge who accepted defendant's
guilty plea and sentenced him.
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for rejecting defendant's claim that trial counsel failed to file "a competency

motion."

      Addressing defendant's sentence, the PCR court concluded that

defendant's challenge was procedurally barred under Rule 3:22-4. According to

the PCR court, not only did defendant fail to provide "any evidence that his

constitutional rights were violated, or that the process of his sentencing resulted

in a fundamental injustice," but also because we considered his excessive

sentence claim, his petition for PCR was procedurally barred. Specifically, the

court noted defendant's present contentions about the misapplication of the

Yarbough factors "was examined and resolved by the Appellate Division on

December 5, 2017."

      Turning to the second prong of the Strickland/Fritz test,3 the PCR court

concluded defendant failed to establish a prima facie showing of ineffective

assistance of counsel because he "[did] not allege any specific facts that show

how he was prejudiced by his counsel's performance."            The court noted

defendant received "a favorable plea based on the charges he faced, on the day

of trial," and he could not demonstrate "but for his counsel's alleged errors, the



3
  Strickland v. Washington,  466 U.S. 668, 687 (1984); State v. Fritz,  105 N.J. 42, 58 (1987).
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result of his case would have been more favorable to him." Because defendant

could not establish a prima facie claim of ineffective assistance of counsel,

citing to State v. Preciose,  129 N.J. 451 (1992), the court concluded defendant

was not entitled to an evidentiary hearing. This appeal followed.

      On appeal, defendant asserts the following argument:

            POINT I

            [DEFENDANT]     IS   ENTITLED  TO   AN
            EVIDENTIARY HEARING OR A MERITS REVIEW
            OF HIS CLAIM THAT COUNSEL RENDERED
            INEFFECTIVE ASSISTANCE BY FAILING TO
            ADVOCATE AT SENTENCING; HE IS ALSO
            ENTITLED TO AN EVIDENTIARY HEARING ON
            HIS CLAIM THAT HIS ATTORNEY RENDERED
            INEFFECTIVE ASSISTANCE OF COUNSEL BY
            FAILING    TO     INVESTIGATE, PROVIDE
            DISCOVERY, DISCUSS HIS CASE OR FILE
            PRETRIAL MOTIONS, THEREBY FORCING HIM
            INTO A GUILTY PLEA.

      We have considered defendant's contention in light of the record and the

applicable principles of law. We affirm substantially for the reasons stated by

the PCR court in its thorough written decision. We add only the following

comment.

      The PCR court noted defendant's contention about ineffective assistance

of counsel was procedurally barred by Rule 3:22-4, primarily based upon our

earlier determination that defendant's sentence was not excessive and was

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consistent with Yarbough. However, as defendant asserts on appeal, his claims

of ineffective assistance of counsel were directed at different subject matters

than he claimed on appeal.

      In his petition, defendant argued trial counsel failed "to argue to the court

all appropriate mitigating factors." Specifically, he argued counsel could have

argued at sentencing that defendant was entitled to a lesser punishment than

recommended in his plea agreement, and that mitigating factor four,  N.J.S.A.

2C:44-1(b)(4), was applicable because defendant's intoxication provided

"grounds tending to excuse [defendant's] conduct, though they failed to establish

a defense." In addition, he asserted counsel failed to argue for mitigating factor

seven,  N.J.S.A. 2C:44-1(b)(7) ("the defendant has no history of prior

delinquency or criminal activity or has led a law-abiding life for a substantial

period of time before the commission of the present offense"), in light of the

fact that defendant had no prior record, and for mitigating factor nine,  N.J.S.A.

2C:44-1(b)(9) ("the character and attitude of the defendant indicate that the

defendant is unlikely to commit another offense"). These contentions were not

previously addressed and could not have been until defendant exhausted his

appellate rights on direct appeal of his sentence.




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      Having said that, we reiterate that we otherwise agree with the PCR court's

overall determination that defendant's contentions on PCR failed to meet the

requirements under Strickland/Fritz, as they were unsupported by specific

factual contentions setting forth the specific failures made by trial counsel and

how, but for those failures, defendant would not have accepted the plea

agreement. See State v. Aburoumi,  464 N.J. Super. 326, 342 (App. Div. 2020)

(stating a prima facie showing of ineffective assistance is established where "the

advice given by . . . plea counsel fell below professional norms," and "defendant

'demonstrate[d] that he would not have pled guilty if he had been provided with

accurate information' from his plea counsel") (alteration in original) (quoting

State v. Gaitan,  209 N.J. 339, 351 (2012)). Here, defendant failed to provide

the necessary details and relied on only "bald assertions" that were insufficient

to support his petition. State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999).

      Affirmed.




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