Opinion
DOCKET NO. A-0773-13T1
03-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID ELYSEE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 99-03-0914, 04-06-2383, 07-03-0915 and 07-06-2188. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a May 31, 2013 order denying his petition for post-conviction relief (PCR). Defendant contends that he received ineffective assistance of plea and appellate counsel. We affirm.
In October 1999, defendant pled guilty to second-degree eluding, N.J.S.A. 2C:29-2b. In November 1999, the court sentenced defendant in the third-degree range and imposed a prison term (the "1999 conviction"). Defendant did not appeal from his 1999 conviction.
In April 2005, defendant pled guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. In June 2005, the court sentenced defendant to probation (the "2005 conviction"). Defendant did not appeal from his 2005 conviction.
In January 2008, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1). In March 2008, the court sentenced defendant to concurrent probationary terms (the "2008 convictions"). Defendant did not appeal from his 2008 convictions.
In February 2010, defendant pled guilty in federal court to possession of crack cocaine with intent to distribute, 21 U.S.C.A. § 841(a)(1). In August 2010, the court treated defendant as a career offender because of his prior convictions and sentenced defendant to a custodial term of 120 months (the "federal conviction").
It is unclear whether defendant appealed from his 2010 federal conviction.
In or around November 2011, defendant filed a pro se petition for PCR and the court assigned PCR counsel to represent defendant. In December 2012, PCR counsel filed a brief in support of defendant's petition and defendant filed an amended certification. Defendant maintained generally that the PCR court should relax the five-year time bar contained in Rule 3:22-12(a)(1), he received ineffective assistance from his plea and appellate counsel, and that he was entitled to an evidentiary hearing.
In May 2013, the PCR judge conducted oral argument and rendered an oral opinion denying the petition without an evidentiary hearing. The judge declined to relax the five-year time bar as to the 1999 and 2005 convictions determining that defendant was out of time by twelve and six years respectively. Although the judge concluded that there was no basis to relax the time bar, he nevertheless considered the merits of defendant's contentions and found that defendant failed to demonstrate a prima facie case of ineffective assistance of counsel. The judge stated in pertinent part:
Concerning the 1999 . . . conviction, [defendant] alleges that he provided [plea] counsel with "[eleven] names and addresses of witnesses who [were] willing to testify at trial . . . that [defendant] was not being pursued by [the] police." . . . As to the 2005 . . . conviction, [defendant] alleges that he "conveyed relevant facts and witnesses" to [plea] counsel. . . . Similarly, concerning the [2008] conviction[s], [defendant] alleges that he provided [plea] counsel with "numerous names and addresses [of individuals] ready, willing and able to come and testify on [his behalf]."
[Defendant] has only presented the bald assertions criticized in Cummings . . . . [T]hese bald assertions are insufficient to support a claim of ineffective assistance of counsel.
The court will address the second alleged basis of ineffective assistance [of counsel] -- namely, coercing [defendant] to plead guilty [to the 1999, 2005, and 2008 convictions]. . . .
. . . .
[Defendant's] claims of coercion are undermin[ed] by his sworn representations [at the plea hearings].
. . . .
The third alleged basis of [ineffectiveness] -- failing to advise [defendant] that the conviction . . . from a . . . guilty plea may enhance a sentence for another crime that he may commit in the future [is without merit]. . . .
At the time of the plea, a defendant need only be informed of the penal consequences of his plea, not the collateral consequences. . . .
The possibility of an enhanced sentence for [a] future crime is a collateral consequence. . . .
. . . .
[Regarding the final claim of not filing an appeal, defendant] fails to identify any prejudice suffered as a result of [not filing an appeal, and he has not shown] how or why such a result . . . would have been different had his attorney filed [an] appeal.
State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant raises the following points on appeal:
POINT I
THE ORDER DENYING [PCR] PLEAS VACATED, OR IN THE ALTERNATIVE, THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL WAS INEFFECTIVE UNDER THE STRICKLAND TEST, TRIAL COUNSELS' FAILURE TO INFORM DEFENDANT OF THE ENHANCED SENTENCING CONSEQUENCES OF HIS GUILTY PLEAS VIOLATED DEFENDANT'S "DUE PROCESS" RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING RULE 3:22-12 BECAUSE THE SIGNIFICANCE OF THE ISSUE RAISED, AND THEIR IMPACT ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM, WARRANTED RELAXATION OF THE [FIVE-]YEAR TIME BAR.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his comprehensive oral opinion. We add the following brief comments.
For defendant to obtain relief based on ineffective assistance grounds, he is obligated to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987).
The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, ___, U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___, U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674).
Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel:
[t]o set aside a guilty plea based on ineffective assistance of counsel, 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.Although the question addressed in Nunez-Valdez concerned the defendant's immigration status, we have applied the same standards to assess the validity of a claim of ineffective assistance of counsel in the context of a guilty plea that did not involve the immigration status of the defendant. See State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nunez-Valdez standards to assess the materiality of erroneous information provided by defense counsel concerning the defendant's right to possess a firearm).
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alterations in original) (citation and internal quotation marks omitted).]
We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test, as well as the standard established under Nunez-Valdez.
We are also convinced that an evidentiary hearing was unwarranted. An evidentiary hearing on a PCR petition is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Preciose, 129 N.J. 451, 462-63 (1992). For a judge to order a hearing, the defendant must make out a prima facie case, demonstrating a reasonable likelihood of succeeding under the Strickland test. Id. at 463; see also Cummings, supra, 321 N.J. Super. at 170 (requiring defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance").
Finally, we conclude that failure to advise defendant of possible or even potential sentencing enhancement consequences of future aberrant conduct is insufficient to establish ineffective assistance of counsel. There is no constitutional requirement for such advice and it involves only a collateral issue. See State v. Wilkerson, 321 N.J. Super. 219, 224 (App. Div.) (acknowledging that "[f]ederal courts have consistently rejected the contention that a defendant who pleads guilty must first be advised that the resulting conviction could someday provide the basis for an enhanced sentence after conviction of a future crime, describing that potentiality as merely a 'collateral consequence' of the plea"), certif. denied, 162 N.J. 128 (1999). "A rule requiring such advice would implicate speculation." Id. at 227.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION