August 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ESAD E. KOLENOVIC, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 30, 2009
Before Judges Stern and Parker.
Defendant Esad E. Kolenovic appeals from a judgment of conviction entered on June 7, 2007 after he pled guilty to four counts of third degree burglary, N.J.S.A. 2C:18-2; four counts of fourth degree theft of credit cards, N.J.S.A. 2C:21-6c(1); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); fourth degree hindering his own prosecution by giving false information, N.J.S.A. 2C:29-3b(4); third degree theft by unlawful taking, N.J.S.A. 2C:20-3; fifteen counts of third degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; third degree theft by deception, N.J.S.A. 2C:20-4; third degree theft of identity, N.J.S.A. 2C:21-17a; second degree obstruction of law, N.J.S.A. 2C:29-1; two counts of fourth degree possession/sale of a simulated government document, N.J.S.A. 2C:21-2.1d; fourth degree receipt of stolen property, N.J.S.A. 2C:20-7; second degree making of a simulated government document, N.J.S.A. 2C:21-2.1b; and a disorderly persons offense of receipt of stolen property, N.J.S.A. 2C:20-7a. Defendant was sentenced pursuant to a plea agreement to an aggregate term of ten years subject to three years parole ineligibility.
These charges arose out of a series of burglaries and thefts from the men's locker room of the Warren Health & Racquet Club in Somerset County. Club members discovered their credit cards missing from their lockers after returning from a workout. The management of the club contacted the police and approved the installation of surveillance cameras in an area outside the men's locker room. Defendant was photographed entering and leaving the men's locker room on several occasions. He was not a member of the club and did not have permission to be on the premises. A police investigation disclosed that defendant made numerous fraudulent purchases with club members' stolen credit cards, purchasing a variety of items, including jewelry, computers, televisions, mattresses and home goods. Defendant was identified on store video cameras and by store employees, using the stolen credit cards in a variety of stores. He was arrested at the club on June 10, 2004 after managers, who were familiar with his surveillance photos, notified police that he was on the premises. The police searched a 1988 Chevy Suburban found in the club parking lot that matched the description given by the employee of a mattress store where defendant had made a fraudulent credit card purchase. They found a laptop computer in the Suburban that defendant had used to manufacture false driver's licenses.
After his arrest, defendant gave the police his brother's name rather than his own and attempted to resist fingerprinting. The police discovered that defendant had two false driver's licenses with his photograph under fraudulent names. A $200 gift card and phone cards that had been purchased with the stolen credit cards were found on defendant's person when he was arrested.
Defendant was indicted in August 2004. Two weeks after posting bail on September 2, 2004, he was detained in Florida on other charges. He was transferred back to New Jersey at the end of November 2005. A February 14, 2006 trial date was set in accordance with the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15.
Thereafter, defendant moved to dismiss the indictment on the ground that the State failed to comply with the IAD. If a defendant with a detainer in New Jersey is serving a prison term in another state, the defendant may request that the New Jersey case be brought to trial through the IAD. Pursuant to N.J.S.A. 2A:159A-3(a), the defendant shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State parole agency relating to the prisoner. [Emphasis added.]
The "caused to be delivered to the prosecuting officer and the appropriate court" language of the statute is generally accepted to mean within 180 days of the date on which the prosecutor receives a defendant's request for "final disposition." State v. Pero, 370 N.J. Super. 203, 212 (App. Div. 2004). If the matter is not tried within 180 days, the IAD requires dismissal of the indictment. Fex v. Michigan, 507 U.S. 43, 49-50, 113 S.Ct. 1085, 1089-90, 122 L.Ed. 2d 406, 413-14 (1993); State v. Ternaku, 156 N.J. Super. 30, 34 (App. Div.), certif. denied, 77 N.J. 479 (1978).
Here, defendant claims that he initiated his request under the IAD on March 3, 2005. He maintains that he made a subsequent demand for a speedy trial on June 10, 2005. Defendant was unable to provide any documentary evidence to corroborate his claims that notices had been initiated on March 3 and June 10, 2005. There is no dispute, however, that an IAD request was received by the Somerset County Prosecutor on July 25, 2005. The trial court acknowledged the July 25, 2005 date for accrual of defendant's claim for a final disposition within 180 days.
Defendant completed his Florida term of imprisonment on December 21, 2005, prior to expiration of the 180-day period.
Consequently, the trial court found that, even though defendant did not have a final disposition of the charges before the expiration of the 180 days, the IAD no longer applied after his December 21, 2005 release from Florida State Prison. State v. Rodriguez, 239 N.J. Super. 455, 458-59 (App. Div.), certif. denied, 122 N.J. 321 (1990); Carrion v. Pinto, 79 N.J. Super. 13, 16 (App. Div. 1963).
In this appeal, defendant argues:*fn1
THE TRIAL COURT ABUSED ITS D[I]SCRETION WHEN IT DENIED MR. KOLENOVIC'S MOTION TO DISMISS THE INDICTMENT BASED ON THE STATE'S FAILURE TO COMPLY WITH THE INTERSTATE AGREEMENT ON DETAINERS, N.J.S.A. § 2A:159A-1 TO -15
MR. KOLENOVIC RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
A. Trial Counsel Was Ineffective When He Failed to Advise Mr. Kolenovic That By Pleading Guilty He Was Waiving His Right to Litigat[e] His Motion to Suppress Evidence Illegally Seized
B. Trial Counsel Was Ineffective When He Did Not Accurately Advise Mr. Kolenovic Before He Pleaded Guilty As To The Collateral Consequences
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED A TEN YEAR CUSTODIAL SENTENCE WITH A THREE YEAR PAROLE DISQUALIFIER ON MR. KOLENOVIC FOR A FOURTH DEGREE OBSTRUCTION OF JUSTICE CHARGE, N.J.S.A. § 2C:29-1
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED MAXIMUM SENTENCES ON MR. KOLENOVIC BECAUSE THE TRIAL COURT FAILED TO FIND MITIGATING FACTORS AMPLY SUPPORTED BY THE RECORD
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED A THREE YEAR PAROLE DISQUALIFIER ON MR. KOLENOVIC BECAUSE THE TRIAL COURT FAILED TO BALANCE, ON THE RECORD, ANY AGGRAVATING AND MITIGATING FACTORS THAT FORMED THE BASIS FOR SAID PAROLE DISQUALIFIER
Defendant first argues that the trial court erred in failing to dismiss the indictment pursuant to the IAD. He maintains that Florida officials delayed the forwarding of his request for disposition and that, pursuant to State v. Wells, 186 N.J. Super. 497, 502 (App. Div. 1982), Florida's non-compliance with the IAD required dismissal of the indictment.
In Wells, "[t]he operative facts [were] essentially undisputed." Id. at 498. A warrant for the defendant's arrest was issued on June 6, 1979, the date on which the indictment was handed up. On June 7, the prosecutor sent a letter to the sheriff in Barnstable, Massachusetts, where the defendant was being held, with a copy of the warrant and a request that it be filed as a detainer. Id. at 498-99. On November 27, 1979, the Barnstable sheriff notified New Jersey officials that the defendant was pending trials in Massachusetts and that the New Jersey warrant "was lodged as a detainer." Id. at 499.
On January 18, 1980, the Barnstable sheriff notified New Jersey officials that the defendant had been taken into custody by the Sarasota, Florida, Sheriff's Department. Ibid. The Sarasota sheriff confirmed that the defendant was in a Florida state prison and that the New Jersey warrant had been forwarded as a detainer. Ibid. On March 10, 1980, the defendant "submitted a written request to the institutional authorities to prepare the 'interstate compact agreement documents for a fast and speedy trial on my New Jersey warrant.'" Ibid. "On April 14 defendant completed and executed IAD forms," and the prison superintendent completed his portion of the forms and forwarded them to the Florida Department of Corrections before April 30. Ibid. Thereafter, there was some confusion as to the existence of the New Jersey detainer, and Florida officials finally forwarded the forms to the New Jersey prosecutor on July 9. The New Jersey prosecutor and court received them on August 7. The defendant was transported to New Jersey on September 23 and trial was scheduled for December 15 -- nine months after the defendant first submitted his written request to Florida officials pursuant to the IAD. Id. at 500. In that case, we concluded that the Florida authorities' failure to act timely resulted in the defendant's substantial compliance with the statute. Id. at 502. On appeal after a jury found the defendant guilty, we reversed and remanded to the trial court for entry of a judgment dismissing the indictment because the record failed to show that the State sought a timely trial pursuant to the IAD. Ibid.
Defendant here maintains that the Florida officials delayed his IAD request, just as they did in Wells. In Wells, however, the defendant's Florida term had not been completed before expiration of the 180-day period from the date of his request. Moreover, defendant here did not produce any documentary evidence to support his claim that the IAD request was initiated in March and forwarded in June. Indeed, the documents purporting to be defendant's request under the IAD are undated. The envelope in which defendant mailed the documents to his attorney were post-marked in Miami on July 21, 2005. In short, defendant produced no documentary evidence to support his claim that the IAD request was initiated in March and mishandled by Florida authorities. Accordingly, the trial court's denial of defendant's motion to dismiss the indictment is affirmed.
Defendant next argues that defense counsel was ineffective in failing to advise defendant that he was waiving his right to move for suppression of the evidence by pleading guilty. He further argues that defense counsel was ineffective in failing to advise him that he would be deported by virtue of his plea.
On a claim of ineffective assistance of counsel, a defendant must show a reasonable likelihood of being able to rebut the "strong presumption" of competent performance on counsel's part, and show that but for counsel's error, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). A claim of ineffective assistance of counsel "must be established by a preponderance of the credible evidence." State v. McQuaid, 147 N.J. 464, 483 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992)). In order to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood that his claim would ultimately succeed on the merits. State v. Marshall, 148 N.J. 89, 157 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). A defendant must do more than make bald assertions that he was denied effective assistance of counsel; he or she 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).
Although we generally relegate ineffective-assistance-of-counsel claims to post-conviction relief, Preciose, supra, 129 N.J. at 462, in this instance the record is clear that defendant cannot meet the Strickland standard. Defendant must demonstrate that if the suppression motion had been heard, it would have changed the outcome of the case. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
The record shows that after defendant was arrested and his Suburban searched, the prosecutor made an oral application for a warrant to search defendant's home. During the testimony of Detective William Keane in support of the warrant application, Keane identified defendant as Senad Kolewovic, rather than Esad Kolenovic. This was based on defendant's representation to the police that his name was Senad -- his brother's name. Defendant claims here that when the oral application was made, the officer knew defendant's correct name because the police had already searched the Suburban and found his identification card.
Defendant maintains that this was a knowingly and intentionally false statement invalidating the entire warrant. We disagree.
First, defendant identified himself as Senad when he was arrested. Second, he can demonstrate no prejudice whatsoever from the officer's identification of him as Senad in the warrant application, nor can he demonstrate that the suppression motion would have succeeded if it had been argued. Accordingly, we find no merit in this argument.
Defendant further contends that counsel was ineffective because he failed to advise defendant that by pleading guilty he would be deported. In our review of the October 6, 2006 plea colloquy, it is clear that defendant was made aware of the likelihood of deportation and that he had consulted with an immigration lawyer regarding deportation. Colloquy between defendant and his counsel was as follows:
Q: Even though your parents, I think, became citizens, and your brother, you never became a citizen?
Q: And we had spoken, you know when it's written on the form that there is an immigration -- there may be an immigration detainer against you and that when you finish this sentence there may be proceedings to deport you?
Q: And I also, I told you that while I don't do immigration law, there's a high likelihood that you will be deported when this is over?
Q: And that you have retained or consulted with your own person --
Q: -- immigration lawyer who can advise you on that?
Q: But you -- but I did not answer your questions about immigration but that you are facing deportation as a result of this?
The court then followed up, asking defendant:
Q: You also understand that if the Immigration and Customs Enforcement Bureau decides to deport you, or take some other action in regard to your presence in this country, that will not be a basis for you to take back this plea; do you understand that?
A: Yes, I do.
We are satisfied that this colloquy more than adequately demonstrates that defendant was advised of the likelihood of deportation and indicated that he had already retained or consulted with an immigration lawyer who could advise him of the consequences of entering the plea. We find no merit in this argument.
We reject the ineffective assistance of counsel contentions for the reasons stated. We add that given the negotiated disposition on the thirty-two counts of the thirty-four-count indictment charging defendant and defendant's prior criminal record, which resulted in waiver of an extended term application a part of the negotiated disposition, it is highly unlikely that defendant would not have pled guilty but for the alleged ineffective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985).
We similarly find no merit in defendant's sentencing arguments, except for Count Thirty on which he was sentenced to a ten-year term on a second degree obstruction of law charge, which should have been a fourth degree obstruction of justice offense. The State agrees that this was an error.*fn2 We, therefore, remand the matter to the trial court for resentencing on Count Thirty.
We have considered defendant's remaining sentencing arguments in light of the record and, given defendant's extensive criminal history, find that the sentence imposed in accordance with the negotiated plea agreement was not manifestly excessive or unduly punitive, nor did it constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984). We find no basis for disturbing the sentence imposed in accordance with the plea agreement, except for Count Thirty as indicated above. State v. Mastapeter, 290 N.J. Super. 56 (App. Div.), certif. denied, 146 N.J. 569 (1996).