DOCKET NO. A-3259-13T2
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 08-10-2526 and 08-11-2706. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Adonis Giron appeals from a December 16, 2013 order of the Law Division denying his petition for post-conviction relief (PCR). In 2007, defendant, posing as a representative of Western Union and the New Jersey State Lottery Commission (Lottery), obtained more than $38,250 from a store owner by promising to assist in establishing his store as an authorized provider of Western Union and Lottery services. Defendant, who was never an agent of either entity, neither performed the promised services nor returned the funds to the victim. The following year, defendant again misrepresented himself as a Western Union and Lottery agent for the purpose of inducing a similar payment from another proprietor in exchange for assistance in obtaining Western Union and Lottery authorization. However, the authorities intervened before any payment was made.
Following his arrest and separate indictment for each incident, defendant pleaded guilty, pursuant to a negotiated plea agreement, to two counts of third-degree theft by deception, N.J.S.A. 2C:20-4. At the plea hearing, defendant admitted to falsely representing himself as a Western Union and Lottery agent for the purpose of obtaining funds in excess of $500 from each victim and, as to the first victim, obtaining those funds. Defendant further stipulated he failed to perform the promised services.
During the sentencing hearing, at which defendant was present, the judge sentenced defendant to five years' probation on each count, to run concurrently, as well as $31,500 in restitution to the first victim, in accordance with the negotiated plea agreement. Defense counsel informed the court he had discussed the restitution with defendant and that defendant was "in agreement with that amount." The judge imposed a payment plan requiring defendant to pay $300 in restitution per month upon his resuming employment. Defendant did not appeal his sentence.
Defendant filed a PCR petition, arguing restitution of $31,500 was an illegal sentence, the imposition of which violated his constitutional rights to effective assistance of counsel, due process and a fair trial. The PCR judge concluded that defendant's petition was actually an attempt to correct an excessive sentence, not an illegal sentence, and was therefore time-barred. R. 3:22-3. Nonetheless, the judge addressed the merits of the issues raised in the petition and found them to lack merit, holding defendant's "bald assertions" failed to state a prima facie claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
On appeal, defendant raises the following issues for our consideration:
THE PCR COURT MISAPPLIED ITS DISCRETION IN FINDING THAT DEFENDANT WAS RAISING AN
"EXCESSIVE" SENTENCE ARGUMENT AND WAS PROCEDURALLY BARRED BECAUSE DEFENDANT'S DUE PROCESS RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL JUSTICE TO BE PROTECTED FROM AN ORDER OF RESTITUTION IN THE AMOUNT OF $31,500 WITHOUT A HEARING TO DETERMINE HIS ABILITY TO PAY WAS VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO INFORM THE TRIAL COURT THAT DEFENDANT WAS CONTESTING THE AMOUNT OF RESTITUTION PROPOSED WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
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.
We affirm substantially for the reasons set forth in the PCR judge's comprehensive written opinion. We add only the following brief comments.
The contention that defendant contested the amount is belied by the record. At sentencing, defendant's counsel informed the court that defendant had been informed of and was in agreement with the proposed $31,500 in restitution. Defendant stated to the court, "As soon [as] I get out and work and . . . soon as possible, I want to pay him back all the money. I'm unable to pay all the money." As a result, without objection from defendant, the court set a payment schedule of "$300 a month" once the defendant started working. As such, the court was not required to conduct an ability-to-pay hearing because "[t]here [was] no dispute as to the amount ordered or defendant's ability to make restitution." State v. Orji, 277 N.J. Super. 582, 590 (App. Div. 1994).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION