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State v. Dirago

May 25, 2012
DOCKET NO. A-0543-09T2 (N.J. Super. May. 25, 2012)


DOCKET NO. A-0543-09T2


STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL DIRAGO, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).



Before Judges Axelrad, Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 98-05-0217.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief). PER CURIAM

Defendant, Michael Dirago, who was convicted of murder in 1991, appeals from denial of his second petition for post-conviction relief (PCR), filed fifteen years later, in which he argued ineffective assistance of trial counsel, namely that counsel misadvised him concerning the sentence he would receive if convicted at trial, resulting in his rejection of the State's plea offer. The PCR judge denied defendant's petition on procedural grounds under Rule 3:22-12 and Rule 3:22-4. We affirm.


Following a jury trial, defendant was convicted on April 19, 1991 of first-degree murder, N.J.S.A. 2C:11-3a(1), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and possession of a handgun without a permit, N.J.S.A. 2C:39-5b. Two months later, defendant was sentenced to life in prison without parole for thirty years on the murder conviction and to concurrent terms of fifteen years and five years, respectively, on the weapons convictions.

On direct appeal, defendant challenged evidential rulings, voir dire, jury instructions, and argued the two weapons offenses should have been merged. We affirmed the murder conviction, but remanded for merger of defendant's conviction for possession of a weapon for an unlawful purpose with his murder conviction. State v. Dirago, No. A-0809-91 (App. Div. Oct. 13, 1994). The Supreme Court denied defendant's petition for certification on December 13, 1994. State v. Dirago, 139 N.J. 289 (1994).

On May 20, 1996, defendant filed a petition for PCR in which he alleged eight claims of ineffective assistance of trial counsel dealing with trial preparation and trial errors. By order of June 29, 2000, the court denied defendant's petition in connection with seven of his eight assertions. Following an evidentiary hearing during which defendant's trial counsel, New York attorney Richard J. Reisch, testified, the court granted defendant's PCR petition, reversed and vacated defendant's murder conviction, and ordered a new trial by order of April 8, 2002. We granted the State's motion for leave to appeal, and reversed the order granting defendant's PCR petition and reinstated his conviction and sentence. State v. Dirago, No. A-5091-01 (Nov. 25, 2002). On March 25, 2003, the Supreme Court denied certification. State v. Dirago, 176 N.J. 73 (2003).

In December 2003, defendant sought relief through the federal process by filing a writ of habeas corpus, which was denied in November 2005.

On September 15, 2006, defendant filed a second pro se petition for PCR, and counsel was assigned by order of June 12, 2007. Defendant raised additional grounds of ineffective assistance of trial counsel, namely that trial counsel misadvised him concerning the sentence he could receive if convicted at trial, resulting in his rejection of the State's plea offer. Following oral argument, Judge Patricia Richmond denied defendant's petition by order and letter opinion of April 28, 2009, finding it was procedurally barred under Rule 3:22-12 and Rule 3:22-4. This appeal ensued.


Defendant was convicted of the 1985 murder of his former girlfriend, Yvonne Davi. Our per curiam opinion, State v. Dirago, supra, No. A-0809-91 (slip op. at 2-4), recited the following facts and evidence adduced at trial. Davi had a "tempestuous" relationship with defendant, involving physical abuse and intimidation. After Davi stopped seeing defendant, he sent love letters and flowers to coax her into seeing him again. Davi eventually agreed to meet with defendant, and on April 16, 1985, they went to Fox Hunt Pub. After telling her roommates at about 8:30 p.m. that she would be home in twenty minutes, defendant persuaded Davi to go to a bar in New York City called Tea Bags. At the bar, the victim and defendant met a mutual friend, Richard Ferrante. Unbeknownst to Davi, Ferrante agreed to assist defendant in killing her.

According to Ferrante, the men convinced Davi to accompany them to Atlantic City. However, defendant and Ferrante were using the trip as a pretext to lure Davi to an isolated location. While driving, Davi realized they were not going to Atlantic City and began to struggle. Defendant shot and killed Davi in the car, and the two men drove into Pennsylvania, where they dumped the body in a wooded area.

Davi was reported missing after she failed to return home. When defendant was questioned by police, he explained that Davi had abruptly left the bar in New York City, and although he searched for her, he could not locate her and returned to the bar. Davi's remains were found eight months later.

During a pretrial conference in August 1989, defendant rejected a plea offer from the State offering a maximum of thirty years incarceration with thirty years parole ineligibility. After defendant's New Jersey attorney, Carl Taraschi, stated on the record that "[t]he offer is rejected[,]" the following colloquy between the prosecutor and Judge Paul R. Kramer occurred:

THE COURT: Well, let me make sure the four of us understand what we're saying.
Now, what you're saying is you want your -- You're recommending a sentence of thirty years, but with no parole for thirty years; is that right?
[Prosecutor]: That's correct, your Honor.
THE COURT: Of course, your answer is, even if you're convicted, that's the most you're
going to get. All right. So, I understand your position.
I'm not being critical, but, of course, you're, in effect, offering them nothing.
[Prosecutor]: Certainly.
THE COURT: All right.

Defendant was tried and convicted in 1991. At sentencing on June 7, 1991, the State noted defendant's exposure for the first-degree murder offense was life imprisonment with a thirty-year period of parole ineligibility and urged that sentence. Defense counsel Reisch responded:

I know the constraints that the court has on sentencing and I know that the only freedom the court would have is to add as consecutive sentences some of the other convictions and I would ask the court not to do that.
. . .
I would just ask the court to grant him that -- the quantum of leniency that would be comprised of sentencing him on counts two and three concurrently to the mandatory sentence on count one.
Defendant stated he had "[n]othing" to say for himself. Judge Kramer then sentenced defendant to life imprisonment without parole for thirty years on the murder conviction.

In defendant's second petition for PCR filed in 2006, defendant claimed he had not received the transcript of the 1989 plea negotiation hearing until 2003, after which he did research and decided he had a viable claim of ineffectiveness of trial counsel for misinforming him that the maximum sentence he could receive was thirty years. Defendant argued that based on this information, he rejected the State's plea offer because he believed there was little incentive not to proceed with trial. He certified that Reisch assured him the State's plea offer of thirty years with a thirty year stipulation was meaningless because it was the same sentence he would face if he went to trial. Defendant argued the colloquy between the prosecutor and the court at the plea hearing, in which the judge said the State's plea offer was in fact "offering [defendant] nothing," confirmed the misinformation provided by trial counsel. He further certified that prior to those assurances, "I told my attorney at that hearing, that I would seriously think about accepting the 30 years if exposed to a life sentence at trial."

Defendant also submitted a July 27, 2006 certification from Reisch stating that he advised defendant the plea offer "did not limit his exposure of prison time any more than if he went to trial and lost, because he would receive the same sentence if convicted at trial." Reisch additionally certified that "[i]t is my belief, based on discussions with the defendant that if he knew he was facing a possible life sentence at trial, he would have accepted the State's 30 year plea offer."

Defendant also argued ineffective assistance of his appellate and first PCR counsel. He claimed counsel on appeal and in his first PCR petition failed to raise the issues surrounding the misinformation he received about his potential sentence.

In a letter opinion of April 28, 2009 accompanying the order, Judge Richmond held defendant's PCR claim was procedurally barred by Rule 3:22-12 and Rule 3:22-4. She explained that Rule 3:22-12 provided a five-year time limitation from the entry of judgment in which a defendant may file a petition, unless the defendant demonstrates excusable neglect in order to justify the relaxation of the time bar. The judge then found "no basis in this case" for relaxation of the procedural bar, explaining:

The availability of the transcript, however, is inconsequential. [Defendant] would have (or should have) been aware of his "shocking" and "inexplicable" life imprisonment term at the very least on the date upon which he was sentenced. A transcript is not and was not necessary to alert [defendant] to an issue that he would have been aware of in 1991 on his sentence date. After being sentenced in court, [defendant] neither had any reaction nor made any statement. At no time during the sentencing, motion for new trial, direct appeal, or motion for the first PCR did [defendant] raise the issue he raises now. Such an argument should not have taken fifteen (15) years to have been raised. If this was a legitimate issue, [defendant]
would have been aware of it at the time of sentencing. He would have stated this issue at any of the court hearings and briefs filed between his 1991 sentencing date and the 2006 filing of his second PCR.
Furthermore, when [defendant] appeared for sentencing on June 7, 1991, Deputy Attorney General Howard M. Barman stated early in the hearing that the murder conviction was a first-degree offense that brought with it a penalty of life imprisonment without parole for thirty (30) years. The record reflects that neither Mr. Reisch nor [defendant] reacted to that statement. Again, even after [defendant] was sentenced, he nor Mr. Reisch made any comment regarding the alleged sentence.

Judge Richmond also addressed the procedural bar under Rule 3:22-4, which prohibited a defendant from raising issues in PCR proceedings that could have been raised in a prior proceeding. She found defendant's arguments could have been raised previously, and "merely claiming that the issue had not occurred to [defendant] is not sufficient to satisfy this requirement." Moreover, she found there were no exceptional circumstances to warrant relaxing the rule because defendant's constitutional rights were not seriously infringed and his actual guilt or innocence was not in question.


On appeal, defendant argues:


A defendant's petition for PCR "is cognizable if based upon . . . [s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" R. 3:22-2. The defendant bears the burden of establishing a right to PCR by a preponderance of credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992).

We reject defendant's first argument of error by the PCR judge in dismissing his second petition as time-barred. Rule 3:22-12 provides a five-year limitation on the filing of PCR petitions from the time of the judgment or sentence. Until the 2009 and 2010 amendments, Rule 3:22-12 provided:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond
said time was due to defendant's excusable neglect.
Although the Rule was amended effective September 1, 2009 and February 1, 2010 to provide separate time limitations for second or subsequent PCR petitions, there previously was no distinction between time limitations for first PCR petitions and subsequent PCR petitions, which were all subject to the five-year bar. See, e.g.. State v. Goodwin, 173 N.J. 583, 594-95 (2002) (applying a five-year limitation under Rule 3:22-12 to a defendant's second petition for PCR). The pre-amendment Rule is implicated here.

The five-year time limitation of Rule 3:22-12 runs from the date of the conviction or sentencing. State v. Milne, 178 N.J. 486, 491 (2004); Goodwin, supra, 173 N.J. at 594. The date is not stayed nor tolled by appellate or other post-conviction proceedings. State v. Dugan, 289 N.J. Super. 15, 19-21 (App. Div.), certif. denied, 145 N.J. 373 (1996); State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986).

"The five-year time limit is not absolute." Milne, supra, 178 N.J. at 492. "[A] court may relax the time bar if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the 'interests of justice' demand it." Goodwin, supra, 173 N.J. at 594 (internal citation omitted). In determining whether "exceptional circumstances" exist in order to relax the procedural bar, the court should consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim[.]" State v. Afanador, 151 N.J. 41, 52 (1997).

Defendant's second PCR petition is procedurally barred. His judgment of conviction was entered on June 7, 1991. Defendant did not file his second PCR petition until September 15, 2006. Thus, under Rule 3:22-12, his petition was time-barred by a decade.

Judge Richmond had ample basis to conclude that defendant did not demonstrate excusable neglect for his tardy filing. Specifically, defendant argues he did not know he had a viable claim of ineffective assistance of counsel on these grounds until he received the 1989 plea colloquy transcript subsequent to the denial of certification on his first PCR in 2003, talked with other inmates, and researched the issue. Defendant provides no explanation for the three-year delay from the time he claims he obtained the transcript to when he filed the second PCR petition. Moreover, as noted by the PCR judge, defendant was well aware of the discrepancy between his trial attorney's advice and the correct exposure for his first-degree murder conviction, as well as his life sentence, at the time of sentencing on June 7, 1991. Thus, the transcript of the l989 plea hearing was not necessary to alert defendant that he was receiving a sentence contrary to what he had been told by his attorney and was arguably confirmed by the prosecutor and judge. Defendant declined to speak at sentencing when given the opportunity by the court and waited fifteen years to raise this claim in a second PCR.

That defendant's appellate and first PCR attorneys purportedly did not alert him to the availability of a claim is not excusable neglect. Lack of sophistication in the law does not amount to an exceptional circumstance or excusable neglect, so it does not justify a relaxation of the five-year time bar. State v. Murray, 162 N.J. 240, 246 (2000).

Additionally, defendant argues the trial level and appellate proceedings, which included his first PCR, took an "inordinate amount of time," spanning almost seven years, which constitutes an excusable reason for the delay in filing the second PCR petition. We disagree. The time limitation for filing a PCR petition is not tolled during appellate proceedings. Milne, supra, 178 N.J. at 494; Dugan, supra, 289 N.J. Super. at 19-21; Dillard, supra, 208 N.J. Super. at 727. Defendant was not precluded from raising this issue on direct appeal or in the first PCR petition. Nor is defendant's delay in filing excused by his pursuit of federal habeas relief. See Milne, supra, 178 N.J. at 494 (noting that "a defendant's pursuit of federal review ordinarily would not extend the time frame within which to file a PCR petition in State court").

Defendant cites to Afanador, supra, 151 N.J. at 52-53 for the proposition that, in some circumstances, the time spent on an appeal may cause a delay that amounts to excusable neglect; however, Afanador is distinguishable from the present case. In Afanador, the defendant raised several issues on appeal, including the constitutionality of the drug kingpin statute and that the jury charge on the kingpin statute was not consistent with the legislative intent of the statute. Id. at 47. The Supreme Court granted certification, but limited its review to the constitutionality of the drug kingpin statute, which it found to be constitutional in October 1993, four years and seven months after Afanador's judgment of conviction was entered. Id. at 47-48. The Supreme Court deferred on the jury instruction issue in Afanador because the same issue was pending consideration by the Court in another case, State v. Alexander, 136 N.J. 563 (1994). Afanador, supra, 151 N.J. at 48. The Court issued its decision in Alexander in July 1994, discussing how courts should instruct a jury with respect to the kingpin statute. Ibid. Six months later, in December 1994, Afanador sought PCR based on improper jury instructions, even though it was five years and nine months after his sentencing. Id. at 48-49.

The Supreme Court held that although it was "somewhat troubled by the six-month delay after Alexander before defendant filed his PCR petition, pro bono counsel had to review the record on the other issues in order to prepare a petition." Id. at 53. Moreover, although more than five years had passed, Afanador had sought to raise the jury instruction issue within the five-year period. Ibid. For the four years and seven months that he pursued a direct appeal, Afanador could not raise the issue on PCR. Ibid. Therefore, the Court found it would be unjust to procedurally bar him from raising the issue. Ibid.

Afanador raised the issue on appeal, while defendant here waited fifteen years to first raise the issue. Moreover, after the decision in Alexander, which prompted Afanador's PCR claim, he waited only six months. We note that the Supreme Court was hesitant to extend the time bar for six months, and only did so because of the extenuating circumstances. In contrast, defendant was able to file this claim from the time of his sentencing in 1991. Defendant still waited three years after he received the plea colloquy transcript to file this PCR petition.

We also are not persuaded by defendant's argument that the interests of justice require that the five-year time bar be relaxed. Under Rule 1:1-2, "any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." In the context of PCR, a court "'should consider the extent of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits.'" Goodwin, supra, 173 N.J. at 594 (quoting Afanador, supra, 151 N.J. at 52).

The Supreme Court "consistently [has] recognized the importance of adhering to the procedural bar[,]" explaining:

The time bar should be relaxed only "under exceptional circumstances" because "[a]s time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases." [Afanador, supra, 151 N.J. at 52].
. . . .
"There are good reasons for [Rule 3:22-12]. As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply.
Achieving 'justice' years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. . . . Moreover,
the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of
relitigation. The Rule therefore strongly encourages those
believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice."
[State v. Mitchell, 126 N.J. 565, 575-76 (1992).]
[Goodwin, supra, 173 N.J. at 594.]

Here, Davi's murder occurred in 1985. Defendant's second PCR petition was filed fifteen years after the judgment of conviction. There is no doubt this inordinate delay would cause an immense prejudice to the State. See Milne, supra, 178 N.J. at 492 (holding the State would be significantly prejudiced if forced to relitigate issues pertaining to crimes and a trial that occurred sixteen years earlier). To re-try the case now would be extremely difficult, as witnesses' memories will have faded, and the task of finding the persons, including police and experts, involved in the murder investigation would be challenging. Moreover, convincing Ferrante, defendant's former co-defendant, to testify again would be difficult and prejudicial to the State. See Goodwin, supra, 173 N.J. at 595-96 (noting the prejudice to the State in relitigating a case years later "cannot be understated" as "once a co-defendant is sentenced, to convince that co-defendant to testify again is extremely difficult because he or she already has received the benefit of a plea bargain").

There are no compelling, extenuating circumstances to explain defendant's fifteen-year delay in raising this ineffective assistance of counsel claim. Additionally, considering the significant prejudice to the State occasioned by the lengthy delay and our overarching respect for the finality of judgments, we discern no basis to relax the procedural bar in this case.

Even if we were to consider defendant's substantive arguments, we are not convinced that PCR relief was warranted. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment is well established. It was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The two-pronged Strickland/Fritz test requires defendant to establish: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced defendant's rights such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The Supreme Court's decision in State v. Taccetta, 200 N.J. 183 (2009) is analogous to our case. In Taccetta, the defendant rejected a plea offer that he would have otherwise accepted because his attorney misinformed him about the sentencing consequences that would follow if he were found guilty. Id. at 185-86. The Supreme Court found PCR could not be granted because "the trial court would have been unable to accept a guilty plea by [the] defendant" as he testified at the PCR hearing that he was innocent, and "although he professed that he would have perjured himself to gain the benefit of the plea agreement, our court rules and case law do not permit either the taking of a plea, or the sanctioning of one, that is based on a known lie." Id. at 186.

Specifically, the defendant's attorney told him his maximum exposure following an acquittal on a murder charge was twenty years, even if convicted of other charges, but in fact, defendant's exposure was an extended term of life imprisonment. Id. at 190. Therefore, the PCR judge concluded that the defendant would have taken the plea for a twenty-year sentence if counsel had properly explained that the sentencing prospects would not have been favorable, even with an acquittal on the murder charge. Ibid. At the PCR hearing, the defendant maintained his innocence, but testified he would have pled guilty to obtain the benefit of the plea deal. Id. at 191.

The Supreme Court concluded, as a matter of law, that the defendant could not have entered a guilty plea:

We reach that conclusion for the simple reason that a defendant does not have the right to commit perjury in giving a factual basis for a crime that he insists he did not commit. Therefore, even if defendant met the first prong of the Strickland/Fritz standard - that his counsel was constitutionally ineffective for giving him mistaken advice about the sentencing consequences of proceeding to trial - defendant cannot satisfy the second prong of that standard, which requires a showing of prejudice.
[Id. at 194-95.]
The Court found it is "foreign to our state jurisprudence" for a defendant to enter a guilty plea, while maintaining his or her innocence. Id. at 195-96. Our court rules require there to be a factual basis for the plea, and to accept the guilty plea, "a judge must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Id. at 196 (quoting State v. Slater, 198 N.J. 145, 155 (2009)). Therefore, "'[e]ven if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so. No court may accept such a plea.'" Taccetta, supra, 200 N.J. at 196 (quoting State v. Smullen, 118 N.J. 408, 415 (1990)).

Although the federal standard under North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167-68, 27 L. Ed. 2d 162, 171-72 (1970) allows a court to accept a plea from a defendant who maintains his or her innocence provided there is a strong factual basis for the plea, this is not permitted under the law in New Jersey. Taccetta, supra, 200 N.J. at 195 n.8.

"The integrity of our criminal justice system" is to "strive to minimize the ultimate miscarriage of justice - the conviction of an innocent person[,]" so a court must refuse to accept a guilty plea of a person if it is expressly informed the accused claims to be innocent. Taccetta, supra, 200 N.J. at 196. Therefore, if a trial court cannot accept a guilty plea that is known to be false, "then it would be strange indeed for a PCR court to vacate a jury verdict following a fair trial on the ground that defendant would have taken an advantageous plea offer with a limited sentence exposure if only he had been given the opportunity to lie under oath." Id. at 197.

The Supreme Court further acknowledges that the justice system is not perfect and sometimes an accused, without the knowledge of the court, may enter a guilty plea to a crime he did not commit in order to protect himself or herself against the possibility of a longer sentence. Id. at 198. However, the Court did not find it acceptable for a defendant to do so. Ibid. "Just because we are powerless to control or eliminate every negative practice in our criminal justice system does not mean that we must condone those practices." Ibid.

Here, defendant would not have been successful in an ineffective assistance of counsel claim because, although he arguably can meet the first prong of the Strickland/Fritz test, he cannot meet the second prong. Considering the first prong, that counsel's performance was seriously deficient, defendant may demonstrate that counsel's mistaken advice surrounding potential sentences was incorrect. N.J.S.A. 2C:11-3b, both at the time of the conviction and now, provides that a person convicted of murder, a crime in the first degree, shall be sentenced to "a term of 30 years, during which the person shall not be eligible for parole" or to a specific term of years which shall be "between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole." It is clear from the statute that defendant faced a sentence of between thirty years and life imprisonment. It appears from the pretrial colloquy that Reisch had incorrectly advised defendant that his trial exposure was limited to thirty years, which was the State's plea offer, and Reisch subsequently certified to this error.

However, defendant cannot meet the second prong of the Strickland/Fritz test because defendant maintained his innocence. Therefore, even with counsel's errors, the result of the proceedings would not have been different, as the court could not have accepted defendant's guilty plea. At trial, defendant chose to testify and declare his innocence. When directly asked twice, he stated he did not kill Davi.

Unlike Taccetta, defendant did not make the explicit assertion at a PCR hearing that although he was innocent he would have lied to take advantage of the plea. Although defendant did not blatantly say he would have perjured himself, the facts are still very similar, and the reasoning of the Court would apply here. Given that defendant maintained his innocence at trial, and even took the stand to outright declare his innocence, he cannot claim on PCR that he would have accepted the plea offer, testified under oath that he was guilty of the first-degree murder of Davi, and provided a factual basis for the conviction. As the Court explained in Taccetta, it is fundamental that our justice system refuses a plea from someone who does not truthfully admit to his or her guilt.

Without mentioning Taccetta, defendant argues his case is synonymous with State v. Nichols, 71 N.J. 358 (1976). In Nichols, the defendant was misinformed that he faced consecutive sentences for armed robbery and murder if found guilty, so he therefore pled guilty to armed robbery and non vult to murder in exchange for concurrent terms. Id. at 360-61. The Supreme Court found that where the "responsible arms of the judicial and law enforcement establishment, together with defendant's own counsel, have misinformed him as to a material element of a plea negotiation, which the defendant has relied thereon in entering his plea, . . . it would be manifestly unjust to hold the defendant to his plea." Id. at 361.

Here, unlike Nichols, defendant did not accept the plea offer. Instead, defendant asserts counsel misadvised him regarding a plea, and he therefore elected to go to trial. The rationale of Nichols does not apply here, while the reasoning of Taccetta is directly on point.

Defendant also argues for the first time on appeal that trial counsel should have objected when the trial court sentenced him to life imprisonment. He contends Reisch's failure to alert the court that defendant had been advised during plea negotiations that he faced a maximum of thirty years imprisonment amounted to ineffective assistance of counsel. We disagree.

A reviewing court is not obligated to consider questions or issues not properly presented to the trial court. State v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). We note, however, as emphasized by Judge Richmond, that defendant was present in court during sentencing and did not speak up even when directly asked if he had anything to say for himself, and he did not raise this issue on direct appeal or in the first PCR petition.

We also reject defendant's challenge to the Rule 3:22-4 procedural bar and his defense of ineffective assistance of appellate and first PCR counsel because they did not raise the issue of defendant being misinformed about his exposure to a life sentence. Rule 3:22-4 generally precludes review of claims raised for the first time in PCR petitions that could have been raised on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997); Mitchell, supra, 126 N.J. at 583-84. All of defendant's arguments, save the allegation of ineffective assistance of first PCR counsel, could have reasonably been raised in a prior proceeding. The alleged errors occurred during plea

negotiations and at sentencing, so there was nothing to prevent defendant from bringing this claim on direct appeal. Moreover, as previously discussed, defendant failed to demonstrate "exceptional circumstances," Mitchell, supra, 126 N.J. at 586-87, nor would denial of relief be contrary to the state or federal constitutions, R. 3:22-4.

Defendant does not contend he ever raised this issue with appellate or PCR counsel and counsel refused to include the issue in defendant's appeal or first PCR petition, or that he told either counsel he had been misadvised. A review of the l989 plea colloquy transcript alone would not have alerted appellate or first PCR counsel to this issue. It is well-settled that:

[T]o establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. . . . [H]e 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.
[State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).]

Moreover, under a Taccetta analysis, defendant would have been unsuccessful in establishing the second Strickland prong. Accordingly, counsel's failure to raise this issue post-trial cannot be considered a serious error warranting PCR relief on defendant's second petition.

Defendant also argues the trial court committed plain error because it "guaranteed" he would not face more than thirty years if found guilty. We disagree. Under Rule 2:10-2, trial errors should be disregarded by the appellate court unless they are "clearly capable of producing an unjust result[.]" Here, it is not clear that even if the trial court misstated the sentencing exposure or defendant perceived the comments as a misstatement, it was clearly capable of producing an unjust result. There was no guarantee the court would have accepted the plea offer. See State v. Warren, 115 N.J. 433, 447 (1989) (noting that "[t]he determination of a criminal sentence is always and solely committed to the discretion of the trial court to be exercised within the standards prescribed by the Code of Criminal Justice[,]" and the court "may not simply accept the terms of a plea agreement"). Moreover, defense counsel stated on the record that "the offer is rejected" before the judge made the challenged comments.

As we have rejected defendant's claims of error, we summarily reject his newly-minted argument that cumulative errors deprived him of due process. R. 2:11-3(e)(2). Nor was defendant entitled to an evidentiary hearing as he failed to establish a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-63.


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


Summaries of

State v. Dirago

May 25, 2012
DOCKET NO. A-0543-09T2 (N.J. Super. May. 25, 2012)
Case details for

State v. Dirago

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL DIRAGO…


Date published: May 25, 2012


DOCKET NO. A-0543-09T2 (N.J. Super. May. 25, 2012)

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