July 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENJAMIN VARGAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-02-0189.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 7, 2011
Before Judges Messano and Waugh.
Defendant Benjamin Vargas appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points on appeal:
THE PCR COURT ERRED WHEN IT RULED THAT DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS PROCEDURALLY BARRED BY R. 3:22-3OR 3:22-4
THE FAILURE OF TRIAL COUNSEL TO PROVIDE DEFENDANT WITH A COMPLETE COPY OF THE DISCOVERY BEFORE THE PLEA CUT OFF, AND TO INSIST THE COURT CONDUCT A FORMAL PRETRIAL CONFERENCE IN OPEN COURT AND HEAR PRETRIAL MOTIONS BEFORE PLEA NEGOTIATIONS WERE CUT OFF, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
THE INCLUSION OF INVESTIGATION REPORTS GENERATED BY THE STATE IN DEFENDANT'S PRESENTENCE REPORT WITHOUT DEFENDANT'S CONSENT, VIOLATED DEFENDANT'S RIGHT TO TRIAL BY JURY, AND STATE V. NATALE, AND REQUIRES A REMAND FOR A NEW SENTENCE HEARING (NOT RAISED BELOW)
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The Passaic County grand jury returned an eighteen-count indictment charging defendant with crimes against several victims over a three-day period in July 2001. After rejecting the State's initial plea offer of a maximum term of thirty-five years' imprisonment, and after various pre-trial conferences, the State offered defendant a plea bargain requiring a maximum term of eighteen years in prison. Defendant refused to accept or reject the offer, claiming discovery had not been "filed," that his attorney was "ambushing" him, and that he "need[ed] time to think about it."
Various pre-trial motions were heard and rejected, and, on June 30, 2003, defendant entered guilty pleas to first-degree robbery, N.J.S.A. 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1; first-degree carjacking, N.J.S.A. 2C:15-2(a)(1); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2); second-degree eluding, N.J.S.A. 2C:29-2(b); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree forgery, N.J.S.A. 2C:21-1(a)(3). Pursuant to the plea agreement, the State recommended a maximum term of twenty-two years in prison, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). On October 3, 2003, defendant was sentenced in accordance with the plea bargain.
Defendant appealed his sentence. A panel of our colleagues remanded for reconsideration in light of State v. Natale, 184 N.J. 458 (2005). At remand, the judge imposed the same sentence. Defendant again appealed his sentence, and we affirmed. State v. Vargas, No. A-3703-03 (App. Div. May 3, 2006). Defendant's petition for certification to the Supreme Court was denied. 188 N.J. 353 (2006).
On February 15, 2008, defendant filed a pro se petition for PCR. After assignment of counsel, defendant filed a certification in support of the petition alleging trial counsel provided ineffective assistance.*fn1 Specifically, defendant alleged that, while he was incarcerated, counsel "refused to take any calls from [him]," only saw and spoke to him at court appearances in the presence of other inmates, and did not provide him with discovery. Defendant's complaints led to the assignment of another attorney by the Public Defender's Office.
Defendant asserted that the same situation arose with his second attorney. Additionally, defendant claimed that the attorney "insulted [him] and spoke to [him] in a belittling manner," calling him "names, like crackhead, drug addict, and a fool." Defendant's request for assignment of a third attorney was refused by the judge. Defendant further certified that he was willing to accept a plea bargain, but was unable to assess the offer because he did not have discovery, and because his attorney was more interested in having him plead guilty than "challeng[ing] the State's case against [him]." Defendant alleged he lost the ability to accept a more favorable plea bargain as a result.
Defendant further claimed that he asked counsel to investigate a diminished capacity defense due to his "drug dependency." Lastly, defendant alleged that he "asserted [his] right to a speedy trial, but the judge accused [him] of absconding and refused to consider anything that [he] said."*fn2
Oral argument on defendant's PCR petition was held on August 28, 2009, before Judge Nestor F. Guzman, who was not the judge before whom defendant pled guilty or was sentenced. On October 1, 2009, Judge Guzman issued a written opinion denying defendant's petition.
First, the judge noted that defendant's claims regarding trial counsel's ineffective assistance were all the subjects of discussion during the various pre-trial proceedings, were documented in the trial transcripts, and, therefore, there was no need to conduct an evidentiary hearing. Although Judge Guzman concluded that defendant "should have argued" these claims on direct appeal, and was procedurally-barred from raising them now pursuant to Rule 3:22-4, he nonetheless considered the merits of defendant's arguments.*fn3
After extensively reviewing the case law governing a claim of ineffective assistance of counsel, including the seminal cases of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987), Judge Guzman turned to the specific allegations of trial counsel's deficiencies. Regarding defendant's claim that trial counsel failed to investigate the case so as to provide a defense, the judge noted the strengths of the State's evidence and defendant's failure to assert any particular information that more thorough investigation would have likely revealed. He noted, "[D]efendant simply states that further investigation would have provided a 'defense' without specifying or supporting his assertion with any real facts."
As to defendant's argument that a viable diminished capacity defense could have been mounted, Judge Guzman found that "there is no evidence in the record or in the defendant's brief that supports the possibility of a diminished capacity defense. Therefore, the attorneys' tactical decision not to argue the defense must be given deference."
Regarding defendant's assertion that trial counsel failed to provide him with discovery, citing State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999), Judge Guzman noted that defendant "must specify . . . the portions of discovery that trial counsel failed to give him and he must explain how, if he had been provided with such material, he would have rejected the plea and taken the matter to trial." Judge Guzman considered this standard in light of defendant's claim that he would have accepted the more-favorable plea offer initially made by the State, if he had received discovery. The judge noted, "[D]efendant has not identified what information provided in the discovery would have swayed his mind to accept the original plea deal."
Assuming any of the alleged actions "constitute[d] attorney incompetence," Judge Guzman then considered the second prong of the Strickland/Fritz test of ineffective assistance, i.e., that defendant raised a "reasonable probability" that his attorney's deficient performance affected the outcome. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696; Fritz, supra, 105 N.J. at 58. Judge Guzman noted that defendant faced "the possibility of life imprisonment based upon an extended term sentence that could have resulted from a guilty verdict at trial." He further observed that "[b]ased on the evidence against the defendant (a confession, witnesses, and victims willing to testify), the defendant risked a high probability that trial would have resulted in a guilty verdict with greater sentencing consequences as compared to his plea bargain."
Judge Guzman entered the order denying defendant's PCR petition, and this appeal followed.
To the extent defendant's arguments before us reiterate those raised before Judge Guzman, they are clearly without merit and we affirm substantially for the reasons expressed by Judge Guzman in his comprehensive written opinion. R. 2:11-3(e)(2).
For the first time on appeal, defendant raises a related argument in Point Two. In particular, defendant claims that trial counsel was ineffective because "he failed to insist [that] the trial court follow the Rules of Court, specifically R. 3:9-1(a), (b), (c), (d) and (e)[,] which would have preserved the state's best plea offer and saved defendant almost four years in prison." This argument is unavailing.
Our review of the transcripts of the various pre-trial proceedings reveals that defendant was offered a plea bargain, which he rejected. Several months later, and after the case had been subject to plea cut-off, see R. 3:9-3, the judge permitted plea negotiations to continue. On April 14, 2003, the State made a revised offer of eighteen years imprisonment, subject to the mandatory 85% parole disqualifier of NERA. As noted above, defendant refused to accept or reject the plea offer.
When defendant next appeared in court, on June 23, 2003, he clearly indicated that he had rejected the State's earlier offer. Defendant had filed a series of pro se motions, many of which were disposed of by the judge. The trial date was set for June 30.
On June 30, defendant appeared for trial. The State, however, extended the plea offer that was ultimately accepted. Our review of the transcript of those proceedings indicates without question that defendant entered knowing and voluntary guilty pleas. Defendant told the judge that he had adequate time to speak to his attorney, that his attorney "answered all [his] questions," and that he was satisfied with his attorney's services.
A fair reading of the transcripts of the various pre-trial proceedings indicates that the purposes for holding a pre-trial conference, see R. 3:9-1(e), had been accomplished. In short, we fail to see how any technical non-compliance with Rule 3:9-1, if indeed there was any, mattered.
Lastly, in Point Three, defendant raises for the first time on appeal that investigative police reports should not have been included in his Pre-Sentence Investigative Report, that the judge utilized these reports in finding aggravating sentencing factors, and that this violated the holding in Natale, supra. This argument could have been raised on direct appeal and was not. We refuse to consider it. R. 3:22-4.