On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 01-02-0072.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges R. B. Coleman and Simonelli.
Defendant appeals from the denial of his post-conviction relief (PCR) petition without a hearing. He contends that he was denied the effective assistance of counsel. We affirm.
Defendant Jason Beyer was indicted under Indictment No. 01-02-00072-I (the Indictment) for third-degree burglary, N.J.S.A. 2C:18-2a(1) (count one); and third-degree theft, N.J.S.A. 2C:20-3a (count two). Defendant was also charged under Accusation No. 02-10-365 (the Accusation) of third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count one); and fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count two). Pursuant to a negotiated plea agreement on October 1, 2002, defendant pled guilty under the Indictment to receiving stolen property, N.J.S.A. 2C:20-7, and guilty under the Accusation to both counts. In exchange for the plea, the State agreed to two concurrent five-year terms of imprisonment with no period of parole ineligibility.
At sentencing on November 8, 2002, Judge Conforti sentenced defendant on the receiving stolen property count to a five-year term of imprisonment. The judge also sentenced defendant on the Accusation to a concurrent five-year period of imprisonment on count one, and to a concurrent one-year term of imprisonment on count two. The judge also imposed the appropriate assessments, penalties and fees, suspended defendant's driver's license for twenty-four months and required defendant to pay $3140 in restitution.
Defendant did not file a motion to withdraw his plea or a direct appeal. Instead, on May 18, 2006, he filed his PCR petition. He contended, as he does here, that: (1) counsel did not properly represent him during preparation of his case resulting in counsel convincing him to accept the plea; (2) counsel ignored that defendant was in poor mental health at the time of the proceedings and under the influence of prescribed psychotropic medications*fn1; (3) counsel was under the influence of alcohol at the time he coerced defendant to accept the plea; and (4) counsel informed him that the State's case was overwhelming and that there was no defense.
Based on his review of the plea and sentencing transcripts, Judge Critchley denied defendant's petition without a hearing, finding that defendant failed to establish a prima facie case of counsel deficiency. The judge concluded that defendant voluntarily and knowingly entered into the plea despite his bipolar diagnosis, that there was an appropriate factual basis for the plea, and that there was no evidence that counsel was under the influence of alcohol at the plea or sentencing hearings. The judge emphasized that the plea benefited defendant because his sentences could have been imposed consecutively with a period of parole ineligibility and because defendant was eligible for an extended-term sentence due to his prior criminal history.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Ineffective assistance of counsel claims require the defendant to show: (1) "'that counsel's performance was deficient[,]'" and (2) "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
"[I]n order to 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." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). It is not enough for the petitioner "to allege simply that an injustice has transpired[.]" State v. Mitchell, 126 N.J. 565, 579 (1992). "The petitioner must be prepared 'to establish, by a preponderance of the credible evidence, that he is entitled to the requested relief.'" Ibid. (internal quotation omitted). The petitioner must allege and articulate specific facts which, if believed, would give the court an adequate basis upon which to rest its decision. Ibid.
Here, defendant offers nothing more than his bald allegations of trial counsel's deficiency. He presents no affidavits or certifications supporting any of his claims, especially those related to his mental health. Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). Also, the record refutes defendant's contentions that he was not informed that he would have to make restitution and that his driving privileges would be suspended. Defendant answered "Yes" to the following question on the plea form he signed:
Are you aware that you must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will ...