STATE OF NEW JERSEY v. STEVEN A. MELEIKA

NOT FOR PUBLICATION WITHOUT THE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-4103-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STEVEN A. MELEIKA,

     Defendant-Appellant.
_______________________

                   Submitted January 3, 2022 – Decided February 24, 2022

                   Before Judges Sumners and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 15-10-1343.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Abby P. Schwartz, Designated Counsel, on
                   the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Ednin D. Martinez, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      Defendant Steven A. Meleika appeals from an order denying his post-

conviction relief (PCR) petition without an evidentiary hearing. He argues:

            POINT I

            BY NOT REPRESENTING DEFENDANT ON HIS
            MOTION TO WITHDRAW HIS GUILTY PLEA
            COUNSEL WAS INEFFECTIVE AND DEPRIVED
            DEFENDANT OF HIS RIGHT TO COUNSEL AND A
            FAIR TRIAL. (Not Raised Below.)

            POINT II

            COUNSEL'S FAILURE TO RAISE THE VIOLATION
            OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL
            WAS INEFFECTIVE ASSI[S]TANCE OF COUNSEL,
            AND VIOLATED HIS RIGHT TO COUNSEL AND A
            FAIR TRIAL.

We are unpersuaded by these arguments and affirm.

                                         I

      On April 29, 2015, defendant was arrested and jailed arising from a

drive-by shooting of a victim shot in the upper back, occurring three days earlier.

On October 8, defendant was indicted for twelve offenses, including allegations

of first-degree attempted murder, second-degree weapon (a handgun)

possession, and third-degree aggravated assault. Defendant's father was also

charged in the same indictment with third-degree hindering the apprehension of

another and fourth-degree obstruction of the administration of law.


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      Seven months after being indicted, on May 16, 2016, defendant pled guilty

to fourth-degree pointing a weapon at another person. The plea agreement called

for the State's recommendation of an eighteen-month prison term with an

eighteen-month period of parole ineligibility as a Graves Act,  N.J.S.A.

2C:43-6(c), offense and the dismissal of the remaining charges against him. In

addition, all charges against defendant's father were dismissed.

      On December 16, defendant appeared for sentencing. Against his trial

counsel's advice, he moved to withdraw his guilty plea. Counsel informed the

court that because defendant disagreed with the application, he wanted to

represent himself. Defendant was allowed to argue the motion, which the court

denied. The court then imposed a sentence in accordance with the State's

recommendation and granted defendant 597 days of jail credits. Defendant did

not file a direct appeal.

      On August 19, 2019, defendant, who was no longer confined, filed a pro

se petition for post-conviction relief alleging trial counsel was ineffective for:

(1) not moving to withdraw his "invalid" guilty plea because he possessed an

antique firearm which did not constitute a weapon; and (2) not moving to dismiss

the charges against him because he was not afforded a speedy trial. Defendant's

assigned PCR counsel submitted a brief and amended the petition by having


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defendant assert that he "did not possess a[n operable] weapon" and "did not

point this weapon at anyone."

      After hearing the parties' arguments, the PCR judge entered an order and

issued a decision from the bench denying relief without an evidentiary hearing.

Applying the well-known two-prong test to establish ineffectiveness of counsel,

Strickland v. Washington,  466 U.S. 668, 687 (1984) and State v. Fritz,  105 N.J.
 42, 58 (1987), the judge found there was no prima facie claim that: (1) trial

counsel's performance was deficient and (2) the performance prejudiced the

defense.

                                       II

      In Point I, defendant argues that trial counsel was ineffective because

counsel failed to represent him on his motion to withdraw his guilty plea. Since

this argument was not raised before the PCR judge and does not "go to the

jurisdiction of the trial court or concern matters of great public interest ," we

would normally decline to consider it. State v. Marroccelli,  448 N.J. Super. 349,

373 (App. Div. 2017) (quoting State v. Robinson,  200 N.J. 1, 20 (2009)).

Nevertheless, we will consider the argument.

      Defendant, without citing any case law, argued that his guilty plea should

be withdrawn


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             because I lied. I did not point a firearm at anybody, and
             . . . I was told by my [plea] attorney [1] . . . to say that
             just so I can go home. To lie and to say that so I could
             go home. So, that's why I said that. But it's not true. I
             did not point — there is no proof.

As noted, the court denied the motion. Considering the four-prong test set forth

in State v. Slater,  198 N.J. 145, 157-58 (2009), the court, which took defendant's

plea, reasoned the motion was without merit based on his plea colloquy's

unequivocal admission of the offense, the absence of any new evidence

supporting his innocence, the strength of the State's case against him; the plea

negotiations, and the prejudice to the State in seeking to re-prosecute an incident

that occurred almost two years earlier. The court also commented that defendant

"indicated . . . he would not plead guilty unless . . . the charges against his father

were dismissed."

      Defendant's argument that trial counsel was ineffective for not presenting

or arguing his motion to withdraw his guilty plea fails, as he has not shown the

motion would have been granted had counsel filed and argued it. There is no

ineffective assistance of counsel for not filing a motion, or in this case, for not




1
   Defendant was represented at sentencing by a different attorney than the
attorney who represented him at his plea hearing.
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arguing a motion that is without merit. See State v. O'Neal,  190 N.J. 601, 618-19

(2007); State v. Worlock,  117 N.J. 596, 625 (1990).

      Indeed, we have no qualm with the court's denial of the motion. "[I]n

evaluating motions to withdraw a guilty plea," a trial court must "consider and

balance":   "(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." Slater,  198 N.J. at 157-58. The court did so, properly concluding there was no basis to grant

relief. Defendant's bald assertion that "I did not point this weapon at anyone,"

is insufficient. See State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999) (holding a defendant "must assert the facts that an investigation would

have revealed, supported by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the certification." (citing R.

1:6-6)). There was no evidence provided beyond his claim that the gun was

inoperable. Moreover, in his PCR proceeding, defendant failed to present any

evidence or persuasive argument that had he been represented at the motion

hearing, the outcome would have been in his favor.




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                                         III

      In Point II, defendant argues trial counsel was ineffective because she

failed to raise his right to a speedy trial. He maintains eighteen months elapsed

from his arrest to his sentencing, fourteen months elapsed from his indictment

to his sentencing, and seven months elapsed from his guilty plea to his

sentencing. Contending "neither the [S]tate nor the court was interested in

moving [his] case[,]" he asserts counsel should have moved "for a probable

cause hearing, for an order to show cause, or for dismissal based on a violation

of his right to a speedy trial." This argument fails, as did his guilty plea

withdrawal argument, because defendant failed to demonstrate a speedy trial

would have been successful. See O'Neal,  190 N.J. at 618-19; Worlock,  117 N.J.

at 625.

      "The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and imposed on the states by the Due Process Clause

of the Fourteenth Amendment." State v. Tsetsekas,  411 N.J. Super. 1, 8 (App.

Div. 2009) (citing Klopfer v. North Carolina,  386 U.S. 213, 222-23 (1967)).

"The constitutional right . . . attaches upon defendant's arrest." Ibid. (alteration

in original) (quoting State v. Fulford,  349 N.J. Super. 183, 190 (App. Div.

2002)). Since it is the State's duty to promptly bring a case to trial, "[a]s a matter


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of fundamental fairness," the State must avoid "excessive delay in completing a

prosecution[,]" or risk violating "defendant's constitutional right to a speedy

trial." Ibid.

      The determination of whether a defendant's right to a speedy trial has been

violated is based upon the four-factor balancing analysis pronounced in Barker

v. Wingo,  407 U.S. 514, 530 (1972). See State v. Cahill,  213 N.J. 253, 258

(2013) (maintaining that Barker is "the governing standard to evaluate claims of

a denial of the federal and state constitutional right to a speedy trial in all

criminal and quasi-criminal matters"). The four non-exclusive factors that a

court should evaluate are: (1) length of the delay, (2) reason for the delay, (3)

assertion of the right by the defendant, and (4) prejudice to the defendant. Id. at

264 (citing Barker,  407 U.S. at 530). No one factor is determinative of whether

a right to a speedy trial has been violated. Id. at 267 (citing Barker,  407 U.S. at
 533). We will not overturn a trial judge's decision where a defendant was

deprived of due process on speedy trial grounds unless the judge's ruling was

clearly erroneous. State v. Merlino,  153 N.J. Super. 12, 17 (App. Div. 1977).

      The PCR judge determined defendant made no showing under Barker that

his speedy trial rights were violated.      Although the judge's analysis was

incorrectly based upon the time between the indictment and guilty plea rather


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than the date of arrest, his order still stands. From defendant's arrest on April

29, 2015, it took twelve months and seventeen days until his guilty plea on May

16, 2016. He has not articulated how any of the Barker factors weigh in his

favor. Given he was charged with the Graves offense of first-degree attempted

murder, the amount of time it took to resolve his indictment was not an

inordinate delay and, in turn, not a denial of his right to a speedy trial. Moreover,

defendant has not shown his plea agreement or sentence would have been

different had counsel filed a motion for a speedy trial.

      Because we agree with the PCR judge that defendant did not establish a

prima facie claim of ineffective assistance of counsel, he was not entitled to an

evidentiary hearing. State v. Preciose,  129 N.J. 451, 462 (1992).

      Any arguments not specifically addressed are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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