Opinion
DOCKET NO. A-1644-11T2
07-02-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUSTIN P. ROBINSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outiero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-04-1064.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outiero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Justin P. Robinson, who pled guilty in 2008 pursuant to an agreement with the State to various offenses charged under an indictment and a separate accusation, appeals from the trial court's dismissal of his petition for post-conviction relief ("PCR"). We affirm.
The record shows that on the evening of January 11, 2008, defendant struck a Belmar police officer during a domestic dispute at his mother's residence. The incident led to the issuance of Indictment No. 08-04-1064, charging defendant with third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), and three other offenses.
The indictment states that the assault took place "on or about January 12, 2008[.]" However, at the plea hearing, defendant indicated that it took place during the evening between January 11 and January 12.
The record further shows that on March 1, 2008, police officers in Asbury Park stopped defendant's vehicle, which was waiting at a traffic light, after they observed him in a physical altercation with his then-fiancée inside the car. The police ordered defendant out of the car. They noticed swelling around the woman's lips and red marks around her neck and chest. Although the woman declined to pursue a domestic violence restraining order, she did advise the police that defendant, who had been drinking, had struck her with the back of his hand across her face and pushed her against the car door. The police arrested defendant and he was found in possession of cocaine.
The March 1, 2008 events led to the issuance of Accusation No. 08-05-1293, which charged defendant with second-degree possession of a controlled dangerous substance ("CDS") with intent to distribute it, N.J.S.A. 2C:35-5b(2), as well as three other offenses.
Pursuant to the plea agreement, defendant appeared with his counsel before the court on May 27, 2008, and pled guilty to the third-degree aggravated assault count of Indictment No. 08-04-1064, and the second-degree possession of CDS with intent to distribute count of Accusation No. 08—05-1293. The remaining charges against defendant were dismissed. During the plea colloquy, defendant advised the court under oath that he was satisfied with his plea counsel's services.
On June 27, 2008, defendant appeared for sentencing and also admitted to a separate violation of probation. Consistent with the plea agreement, the court imposed a five-year aggregate custodial sentence.
After this court dismissed defendant's attempted appeal of his conviction as untimely, he filed the instant petition for PCR in April 2010. In his petition, defendant alleged that his trial counsel had been ineffective in numerous ways. In particular, defendant claimed that his counsel failed to interview the fiancée and another witness to the incident, Tyrone Billingsley, after the arrest, and that they would have refuted the police officers' account based on what they had observed and, in fact, alleged that the police had dragged defendant out of the car and beaten him. Defendant also claimed that his counsel should have filed a motion to suppress the drug evidence by challenging the legality of the motor vehicle stop.
After considering these arguments, Judge Francis P. DeStefano rejected defendant's PCR petition without an evidentiary hearing. The judge issued a written opinion and a corresponding order on May 13, 2011, from which defendant now appeals.
In his brief, defendant presents the following arguments:
POINT ONE
[DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS TRIAL COUNSEL WAS INEFFECTIVE
POINT TWO
A. DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS PLEA COUNSEL WAS INEFFECTIVE IN ADVISING HIM TO PLEAD GUILTY WITHOUT FIRST CONDUCTING AN INVESTIGATION INTO POSSIBLE WITNESSES AND SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING
B. DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS PLEA COUNSEL WAS INEFFECTIVE IN ADVISING HIM TO WAIVE HIS RIGHT TO A SUPPRESSION HEARING ON HIS DRUG CHARGE AND SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING
We reject these contentions, substantially for the detailed reasons cogently set forth in Judge DeStefano's written opinion. Only a few additional comments are worth noting.
The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the general two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
The United States Supreme Court has extended these principles of the representation provided by a criminal defense attorney to a defendant in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 152 S. Ct. 1376, 1384-85, 182 L. Ed. 2d. 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d. 379, 390 (2012). Pursuant to that case law, a defendant must establish with "'reasonable probability'" that the result in his case would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Hence, in the present context involving a judicially-accepted plea agreement, in order for defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
We concur with Judge DeStefano that defendant has failed to demonstrate these requirements. His claim that his fiancée and the other witness, Billingley, would have vindicated him is entirely speculative. The fiancée admitted that defendant had struck her, and there were unrefuted physical marks on her that substantiated his assault. The police unquestionably had a reasonable basis to stop the motor vehicle upon observing the altercation inside of the car. State v. Hickman, 335 N.J. Super. 623, 633-35 (App. Div. 2000); see also State v. Golotta, 178 N.J. 205, 213 (2003) (noting that traffic stops are "essentially . . . governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity"). A suppression motion in these circumstances clearly would have been unsuccessful.
Nor would further investigation by counsel have been likely to improve upon the clear benefit that defendant gained under the plea agreement, which protected him from further exposure under both the indictment and the accusation. As the PCR judge noted, defendant does not contend that he had a colorable claim of innocence to the respective charges of assault upon a police officer and CDS possession, as to which he pled guilty. See State v. Slater, 198 N.J. 145, 157-58 (2009).
Because defendant failed to present a prima facie case of ineffective assistance of counsel, there was no need for the PCR judge to conduct an evidentiary hearing on his petition. State v. Preciose, 129 N.J. 451, 462-64 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION