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State v. Newman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
May 15, 2015
DOCKET NO. A-0278-13T4 (App. Div. May. 15, 2015)

Opinion

DOCKET NO. A-0278-13T4

05-15-2015

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALAN NEWMAN, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Shiraz Deen, Special Assistant Prosecutor, on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-12-1899. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Shiraz Deen, Special Assistant Prosecutor, on the brief). PER CURIAM

Defendant Alan Newman appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant argues that he received ineffective assistance of trial counsel because his trial counsel coerced him to plead guilty. For the reasons that follow, we affirm.

A grand jury charged defendant charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), N.J.S.A. 2C:14-2(a)(2)(a), one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b), one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). This indictment arose from charges that defendant had sexually abused his daughter.

Following the denial of his Miranda motion, defendant pled guilty to all five counts of the indictment. While the plea agreement left the sentence to the court's discretion, the court indicated that it would impose a first-degree sentence "concurrent on all counts of 15 years." In signing the plea form, defendant also acknowledged that the charge was subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, meaning that he would have to serve eighty-five percent of the sentence. He also acknowledged that he would have to register as a convicted sex offender.

Prior to sentencing, defendant moved to withdraw his plea. After denying the motion, the trial court sentenced defendant to an aggregate prison term of fifteen years with eighty-five percent parole ineligibility. Defendant was also subject to parole supervision for life under Megan's Law. Defendant appealed from the sentence, but did not appeal the denial of the motion to vacate the plea. We affirmed his sentence on December 13, 2011. State v. Newman, No. A-2277-10 (App. Div. Dec. 13, 2011).

On June 4, 2012, defendant filed a pro se PCR petition alleging that he received ineffective assistance of counsel. He claimed that counsel did not visit him in prison and that counsel permitted the prosecutor to intimidate him into pleading guilty when the prosecutor threatened to charge his mother with witness tampering. He further claimed that counsel did not specifically advise him about the consequences of his plea. Appointed counsel submitted a supplemental brief.

After hearing oral argument, the PCR court denied relief in a written opinion on April 3, 2013. The PCR court concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel. The court first found that defendant was procedurally barred from raising issues he could have, but did not, raise on his direct appeal. Nevertheless, the court considered the merits of defendant's contentions. The court observed that in the plea colloquy, defendant asserted that he reviewed the plea with his attorney, his attorney answered all his questions, he was not intimidated or coerced into accepting the plea, and no promises were made to him. The court found that defendant's PCR petition were merely bald assertions and there was nothing to suggest that his sworn statements in court were not true. The court noted defendant benefitted greatly from the plea as counsel secured a much lower sentence than the one defendant was facing. Finally, the court determined defendant's contention that he would still have been successful at trial, despite his inculpatory statement being admitted into evidence, was unsupported by factual evidence.

Defendant raises the following points on appeal:

POINT I- THE MATTER SHOULD REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.



POINT II- THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.



POINT III- THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING THE PROCEDURAL BAR OF R. 3:22-4.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes New Jersey's "analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014) (citing State v. Afanador, 151 N.J. 41, 49 (1997)). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. This right to assistance of counsel includes "the right to effective counsel." State v. Cottle, 194 N.J. 449, 466 (2008) (citing State v. Norman, 151 N.J. 5, 23 (1997)).

Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In considering ineffective assistance of counsel claims concerning a guilty plea, defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation . . . a defendant must show that (i) counsel's assistance was not within the range of competence demanded 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."



[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (second alteration in original) (quotations omitted).]
Moreover, to obtain relief under the second prong, "a petitioner 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, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 1036, 1039, 145 L. Ed. 2d 985, 997, 1001 (2000)).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.

"[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." Jones, supra, 219 N.J. at 312.

Having considered the record in light of the applicable legal principles, we conclude that defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Suffice it to say that defendant failed to establish a prima facie case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 462-63 (holding that to establish a prima facie case a defendant must demonstrate a reasonable likelihood of success on the merits).

In particular, defendant declared under oath in court that he entered into the plea voluntarily and was not coerced. Representations a defendant makes under oath at the plea hearing constitute a "formidable barrier" for the defendant to overcome. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977) ("Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal . . . ."). Defendant has not provided a certification setting forth with particularity facts that cast doubt on his previous testimony. Jones, supra, 219 N.J. at 312. We conclude that defendant's bald assertions in the current PCR petition are insufficient to overcome his solemn declaration under oath in open court.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


Summaries of

State v. Newman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
May 15, 2015
DOCKET NO. A-0278-13T4 (App. Div. May. 15, 2015)
Case details for

State v. Newman

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALAN NEWMAN…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: May 15, 2015

Citations

DOCKET NO. A-0278-13T4 (App. Div. May. 15, 2015)