On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA-001-11-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Carchman and Lihotz.
Defendant Alfredo Aviles appeals from a November 21, 2008 Law Division order denying his motion for post-conviction relief (PCR), which was entered after de novo review of the municipal court record. Defendant sought to vacate his guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, entered pursuant to a plea agreement. In exchange for his plea, the State agreed to dismiss a second charge issued after his refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. Defendant argued his plea should be vacated, because his attorney did not explain he had a valid defense to the refusal charge; that is, the police incorrectly read him the Division of Motor Vehicles Standard Statement for Operators of Commercial Motor Vehicles. Defendant asserted the refusal charge should have been dismissed, and he would have proceeded to trial solely on the DWI charge. The Law Division rejected this contention and denied the PCR petition. We affirm.
These are the facts taken from the parties' respective briefs. On July 18, 2006, at 12:24 a.m., Edgewater police responded to a radio call. A citizen reported the driver of a dark-colored BMW was drunk at the McDonald's drive-up window. The informant included the vehicle's license plate number. The police located the vehicle and asked the driver to open his window. A strong odor of alcohol emanated from the vehicle, and the driver, identified as defendant, admitted he recently drank three glasses of wine at a local restaurant. The police asked defendant to exit his vehicle. The police observed defendant's speech was slurred, he had difficulty maintaining his balance, and a strong odor of alcohol was on his breath. Defendant unsuccessfully attempted to perform field sobriety tests. Defendant was arrested for DWI and taken to the Edgewater Police Department.
At the station defendant was asked to submit breath samples, and the arresting officer read him the first eleven paragraphs of the standard statement mandated by N.J.S.A. 39:4-50.2(e). At that point, defendant stated he wanted to speak to his attorney. He was presented with a written copy of the statement prepared for "operators of commercial motor vehicles," N.J.S.A. 39:3-10.24e. The written statement contains twelve paragraphs. Following the twelfth paragraph, defendant wrote, "No, I want to talk to my lawyer." Defendant was issued summonses for driving while intoxicated (Number E028261) and refusal to submit to a breathalyzer test (Number E028262).
On January 4, 2007, defendant, accompanied by counsel, appeared in the Edgewater Borough Municipal Court and entered his guilty plea. The municipal court judge sentenced defendant as a second offender, as he had previously pled guilty to DWI on April 21, 2005, in Teaneck. Defendant was again arrested for DWI on April 6, 2007, in North Bergen. On March 7, 2008, defendant then filed this PCR petition with the Edgewater Borough Municipal Court seeking to vacate the conviction under review.
Defendant asserted counsel did not properly "review . . . the evidence that was against him" or advise him of the "ramifications of that plea, what his rights were to go to trial, [or] what possible defenses he had." The PCR petition was denied by the municipal court without an evidentiary hearing.
On the Law Division's de novo review, defendant asserted trial counsel should have challenged the probable cause for the stop and that there was an inadequate explanation of defendant's rights prior to the entry of his guilty plea. He also argued counsel was ineffective because he failed to challenge the police error in reading the notice mandated by N.J.S.A. 39:4-50.2(e).
Although there was no record of the initial plea proceeding, the Law Division judge relied upon the municipal court judge's statement that he fully recalled his examination of defendant before accepting his plea. Additionally, the Law Division judge concluded defendant presented insufficient evidence to satisfy the two-pronged Strickland/Fritz*fn1 test and denied the petition. Defendant appealed.
Defendant contends his attorney's performance was deficient. He explains that had he known of "the valid defense to the charge of refusal[,]" he would not have agreed to plead guilty to DWI in exchange for the dismissal of the refusal. We reject this argument.
To successfully establish ineffective assistance of counsel, a defendant must prove: 1) counsel's performance was deficient: that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; State v. Allah, 170 N.J. 269, 283 (2002). "The burden to prove that [the] incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). With respect to the second prong, a defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Ibid. As noted in Strickland, supra:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must ...