June 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JORGE GALLINAT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-06-0763.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2011
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). The police located, pursuant to a search warrant, over five ounces of cocaine in defendant's truck. The crux of defendant's argument is that his plea counsel failed to discuss with him the pre-trial discovery and file a motion to suppress.*fn1 We conclude that defendant failed to establish a prima facie case of ineffective assistance of plea counsel and affirm.
Defendant pled guilty to first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1). Thereafter, he retained new counsel who filed a motion to set aside the plea. The judge painstakingly reviewed defendant's plea, denied the motion, and sentenced defendant to the negotiated term of eight years in prison with thirty-three months of parole ineligibility. We affirmed the conviction on direct appeal. State v. Gallinat, No. A-4673-06 (App. Div. August 7, 2008).
Defendant then filed his petition for PCR. The PCR judge stated that the petition was procedurally barred and concluded, "[t]hese are the same issues in a different suit of clothing." The judge also determined, substantively, that defendant failed to make out a prima facie case of ineffective assistance of PCR counsel. This appeal followed.
On appeal, defendant raises the following points:
THE COURT ERRED IN APPLYING THE PROCEDURAL BAR OF R. 3:22-5 IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S PETITION
RAISED SIXTH AND FOURTEENTH AMENDMENT CONSTITUTIONAL ISSUES THAT WERE NOT ENCOMPASSED ON DIRECT APPEAL.
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE BY [HIS PLEA] ATTORNEY D.M., THE COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT AFFORDING THE DEFENDANT A FULL EVIDENTIARY HEARING.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed . . . , [counsel must] ensure that the trial is fair . . . ; [therefore,] 'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, § 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry, explaining:
If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted. [Ibid. (citations omitted).]
To protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. For example, a five-year time limitation is imposed by Rule 3:22-12. Moreover, a PCR petition is not a substitute for appeal of a conviction, Rule 3:22-3, and any available ground for relief not made in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4.
We have carefully considered the record and arguments of counsel and affirm substantially for the reasons expressed by Judge James J. Morley in his thoughtful and comprehensive oral opinion dated November 20, 2009. We add the following brief comments.
Although defendant now contends that his counsel did not discuss with him the pre-trial discovery, defendant admitted during his plea that he had adequate time to discuss the case and review the discovery with counsel. Defendant also conceded that he was satisfied with the legal services received by PCR counsel, services that counsel provided over a substantial period of time. He testified that he pled guilty knowingly and voluntarily. Thus, defendant failed to meet prong one of Strickland.
Likewise, defendant failed to establish prong two of Strickland, that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Probable cause existed to stop defendant's truck. The police received information from a reliable confidential informant that defendant would be returning to New Jersey from Miami "transporting a significant quantity of cocaine." The police used a drug-sniffing dog at the scene, learned that narcotics were in the truck, and properly conducted a search after they obtained a search warrant. After receiving his Miranda*fn2 rights, defendant admitted that the bag containing the cocaine belonged to him. There was no basis to file a motion to suppress.