January 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS PEREZ-INGA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3133.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Reisner and Alvarez.
This appeal is from the denial on June 26, 2007, of defendant Carlos Perez-Inga's petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On appeal, defendant raises the following points:
POINT I IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF.
POINT II IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE POST-CONVICTION RELIEF ATTORNEY TO FAIL TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM WITNESSES SUCH AS PRIOR DEFENSE COUNSEL SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM AND MAY HAVE THEN ALLOWED AN EVIDENTIARY HEARING.
POINT III IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE APPELLATE ATTORNEY TO FAIL TO RAISE THE ISSUE OF TRIAL COUNSEL'S FAILURE TO REVIEW THE PRE-SENTENCE REPORT WITH THE DEFENDANT.
On February 23, 2004, defendant entered a guilty plea to second-degree aggravated assault, N.J.S.A. 2C:12-1(b), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), in exchange for a Rule 3:9-3(c) non-negotiated aggregate sentence of eight years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State originally extended an offer of ten years subject to NERA in exchange for defendant's guilty plea. The judge, after in-chambers discussions with counsel, indicated that he would sentence defendant to eight years subject to NERA. The judge signed the appropriate fourth page to the LR-28 plea form, and the parties' understanding was placed on the record. Originally, defendant was also charged with first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and making terroristic threats, N.J.S.A. 2C:12-3(a). When defendant entered his guilty plea, he acknowledged under oath that he stabbed his wife approximately eleven times with a kitchen knife, causing her serious bodily injury, including a collapsed lung.
Defendant was sentenced on April 30, 2004. At the sentencing hearing, defendant told the court that he was "brought to this country under lies by my wife." He said that when he arrived from Peru with their children he learned "that she was living with another man." He claimed that that she "started the attack." He admitted that he "lost control" and asked the court to reduce the sentence to seven years of imprisonment subject to NERA.
The judge noted that defendant acknowledged having caused serious bodily injury to his wife as a result of inflicting multiple stab wounds. The court went on to find that defendant had no prior criminal history, and sentenced defendant in accord with the non-negotiated plea agreement. The court indicated that because of the victim's life-threatening injuries, it would not sentence defendant to less than eight years. The judge found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (a)(9), as well as mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), defendant's lack of a prior criminal history.
We remanded the matter on September 21, 2005, pursuant to State v. Natale, 184 N.J. 458 (2005), after a Rule 2:10-3 excessive sentence review. A resentencing hearing was accordingly conducted on March 30, 2006, and the same eight-year term subject to NERA was imposed. The matter was listed a second time for the excessive sentencing calendar, and was affirmed on August 8, 2006. On November 15, 2006, the Supreme Court denied certification. State v. Perez-Inga, 188 N.J. 578 (2006).
On September 25, 2006, and November 27, 2006, defendant pro se filed papers requesting PCR. Counsel was assigned on January 10, 2007, and a brief was filed thereafter supplementing defendant's PCR pleadings. The matter was heard on June 7, 2007. In a written decision dated June 26, 2007, PCR was denied.
To successfully argue that trial counsel has not provided the level of assistance guaranteed by the Sixth Amendment, a defendant "must show that counsel's performance was deficient" and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Review of counsel's trial performance must be "highly deferential." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. In order to show that counsel's performance was deficient, a defendant must establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The defendant must then show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Plea bargaining is a critical stage of a criminal proceeding to which the right to effective assistance of counsel attaches. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). For the reasons that follow, we agree with the PCR judge's conclusion that defendant received effective assistance of counsel.
Where a "defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). All of defendant's allegations are "too vague, conclusory, or speculative" to warrant an evidentiary hearing. Ibid.
Defendant contends, for a host of reasons, that his request for an evidentiary hearing should have been granted because he established a prima facie case of ineffective assistance of counsel. We find that the arguments made in support of this contention are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). For example, defendant claims that plea counsel did not review his pre-sentence report (PSI) with him.*fn1 Had she done so, defendant argues, he would have been afforded the opportunity to correct significant errors, which may have in turn resulted in a lesser sentence. The purported errors were: that defendant was in the country illegally, that he had been in the country for a longer period of time than was actually the case, and that he was unemployed when in reality he worked two jobs. When asked at the sentence hearing if she had reviewed the PSI with defendant, plea counsel told the judge that she had done so and that there were no corrections to be made. Defendant was present in the courtroom, and an interpreter was translating the proceedings for him. He did not refute his attorney's statements. We are consequently satisfied that defendant's factual claims on this point are nothing more than bald assertions, unsupported by the record. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant also challenges the sentencing court's findings as to the statutory aggravating and mitigating factors. Specifically, he argues that there was no basis for aggravating factors three, risk of re-offense, and nine, deterrence. We note that at sentencing, defendant did not express remorse and, in fact, insisted that the attack was initiated by the victim. Failure to acknowledge responsibility or show remorse for an offense is a circumstance that the court can consider in finding aggravating factor three. See State v. Carey, 168 N.J. 413, 426-27 (2001). Trial counsel's failure to object to that factor therefore, did not constitute ineffective assistance.
Defendant also contends that mitigating factors three, N.J.S.A. 2C:44-1(b)(3); four, N.J.S.A. 2C:44-1(b)(4), and eight should be found. Suffice it to say that it would have been inappropriate for the sentencing court to find that defendant's marital difficulties constituted a sufficient provocation or substantial grounds to excuse or justify multiple knife wounds. Similarly, there were no facts establishing that defendant's conduct was the result of circumstances unlikely to recur. It was not error to find aggravating factor nine, deterrence. See State v. Briggs, 349 N.J. Super. 496, 505 (App. Div. 2002). The sentence was fashioned to deter both defendant individually and the public, and the gravity of the offense warranted that factor even if the deterrent effect was as to the public only. See State v. Jabbour, 118 N.J. 1, 7 (1990) ("Rarely will general deterrence not be furthered by imprisonment for serious crimes."). It was not error for trial counsel to have failed to dispute aggravating factors three and nine. Similarly, it was not error for her to have failed to advocate for mitigating factors three, four, and eight. Failure to make a non-meritorious objection is not ineffective assistance. Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed. 2d 502 (1994).
Nor was plea counsel ineffective in failing to argue that the injuries inflicted upon the victim were not life-threatening. "Serious bodily injury" is defined as bodily injury that creates a substantial risk of death or causes serious impairment of the function of an organ. N.J.S.A. 2C:11-1(b). A punctured lung would certainly fall within that category. See State v. Sloane, 111 N.J. 293, 298-99 (1988) (holding that some injuries, such as the loss of an arm or eye, are inherently so serious that a jury need not be given the option of finding a lesser offense based on "bodily injury.") It was therefore not ineffective assistance for counsel not to have challenged the offense with which defendant was charged in light of the injuries inflicted. See Bolender, supra, 16 F.3d at 1573.
It is also contended that plea counsel was ineffective in failing to raise passion/provocation as a defense to the charge of attempted murder. See State v. Robinson, 136 N.J. 476, 486 (1994). The relevance of the argument in this context is not clear to us, however, as defendant ultimately pled guilty to second-degree assault, not attempted murder.
Defendant also objects that PCR counsel was ineffective in failing to present oral argument at the PCR hearing and in relying solely on her brief, based on State v. Mayron, 344 N.J. Super. 382, 387-88 (App. Div. 2001). Our court allows counsel to rely upon their brief, as was done in this case, "where communication and investigation have yielded little or nothing," and counsel is obliged to "advance the claims the client desires," even if lacking in merit. State v. Rue, 175 N.J. 1, 19 (2002). Here, where defendant obtained an eight-year NERA sentence on a multiple stabbing originally charged as attempted murder, counsel's choice to rely on her brief and not engage in oral argument is unobjectionable.
Defendant asserts that an evidentiary hearing should be conducted to determine whether plea counsel misled him into believing that he would get seven years instead of eight. That claim is not supported by the record. When the court accepted the plea, defendant was asked twice if he understood that his sentence would be eight years, to which he responded in the affirmative. The court also asked defendant if anyone had told him that he would get a lower sentence, to which he said, "Not at all."
Simply stated, none of defendant's claims warranted an evidentiary hearing. We concur with the PCR judge's decision.
Defendant further contends that it was error for PCR counsel not to have obtained affidavits or certifications in support of defendant's position. Defendant asserts no facts that might have advanced his PCR claims if supplied in written form. In light of the nature of defendant's claims, we cannot envision what those certifications or affidavits would have said, other than a certification of defendant containing the same unacceptable bald assertions.
In his final point, defendant argues that it was ineffective assistance of appellate counsel not to argue that plea counsel was ineffective in failing to review the PSI with defendant. Because there was no direct appeal, but rather only appeals of defendant's sentence, it is unclear when this argument could have been raised. In any event, this contention is nothing more than a bald assertion, as the record indicates that plea counsel said that she had reviewed the PSI with defendant, and he said nothing contrary when he addressed the court.