August 17, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESSICA MONTANEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-05-1708.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 16, 2011
Before Judges Fisher and Grall.
Defendant Jessica Montanez appeals an order denying her petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
The underlying conviction was entered following defendant's guilty plea to one count of second-degree robbery, N.J.S.A. 2C:15-1. At her plea hearing, defendant admitted that on May 31, 2005, she served as her boyfriend's getaway driver after he robbed an elderly woman of her purse by threatening her with a gun. Her plea agreement called for her to be sentenced in the discretion of the court, but that she could withdraw her plea if the court imposed a sentence greater than ten years. The State agreed to recommend a sentence of eight years, and defendant's counsel was free to argue for any sentence. The State was also permitted to withdraw from the agreement if defendant filed a direct appeal.
At sentencing, defendant's attorney argued for an array of mitigating factors. Among them, he argued that at the time of the robbery, defendant was abusing marijuana, PCP and Ecstasy, and that she committed the crime while "in the throes of a drug rage." This claim was supported by the pre-sentence report reviewed by the sentencing judge. The attorney argued that while defendant's drug abuse did not constitute a defense to the robbery charge, it reduced her culpability for the crime. The judge agreed; he found that defendant's drug abuse constituted substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1b(4). He sentenced defendant in accordance with the State's recommendation to eight years imprisonment, subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant did not appeal.
Defendant filed a pro se PCR petition on April 24, 2008, and counsel was assigned. As supplemented by counsel, the petition argued that trial counsel was ineffective for failing to have defendant evaluated for a possible diminished-capacity defense based on her drug abuse.*fn1 That failure, defendant alleged, prevented her from making a knowing decision as to whether to plead guilty and prevented her attorney from effectively arguing for a lesser sentence. She did not attach to her petition any certifications or other documents to support her allegations.
The PCR judge, who was also the judge that accepted defendant's plea and sentenced her, denied the petition without an evidentiary hearing on March 20, 2009. He concluded that defendant's petition was procedurally barred by Rules 3:22-3 and -4. He also concluded that even if her petition was not procedurally barred, defendant had not made a prima-facie showing that her counsel was ineffective or that she was prejudiced by any potential ineffectiveness.
On appeal, defendant argues:
I. DEFENDANT WAS DEPRIVED OF A FAIR HEARING BY THE TRIAL COURT'S SUMMARY DENIAL OF HER PETITION FOR POST-CONVICTION RELIEF.
II. DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
We disagree with the judge that defendant's petition seeking relief based on her attorney's performance was procedurally barred. See State v. Preciose, 129 N.J. 451, 460 (1992). Nevertheless, we agree that defendant did not establish a prima-facie case of her trial counsel's ineffectiveness warranting an evidentiary hearing or relief.
In order to obtain relief based on the performance of her trial counsel, defendant had to show deficient performance by "identify[ing] specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)); see State v. Allegro, 193 N.J. 352, 366 (2008) (restating the two-pronged standard). In the context of representation related to a guilty plea, prejudice is established by showing "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).
It is well-established that a plenary hearing on a claim of ineffective assistance is required only when the facts viewed in the light most favorable to defendant demonstrate a reasonable likelihood of success under Strickland's two-pronged test and testimony is needed to resolve a factual dispute material to the attorney's performance or the resulting prejudice. State v. Marshall, 148 N.J. 89, 158 (1997). A defendant cannot establish a prima-facie case through allegations that are "vague, conclusory, or speculative." Ibid.
Defendant's argument that she be allowed to withdraw her guilty plea because her attorney did not advise her of a potential diminished-capacity defense or arrange for an expert evaluation is based on speculative premises. She asserts that a competent attorney would obtain a diminished-capacity evaluation in her case; that such an evaluation would provide facts that could be fashioned into a plausible defense; and that she would have insisted on proceeding to trial with that defense. Yet without any certifications or other evidence to support these claims, she cannot establish her prima-facie case.
Defendant claims that she could possibly develop her claims at an evidentiary hearing. But an evidentiary hearing "is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief." Ibid. Defendant was required to show the plausibility of her diminished-capacity defense before an evidentiary hearing - not during or after one.
As for defendant's claim that a diminished-capacity evaluation would have allowed her trial attorney to successfully argue for a reduced sentence, that is belied by the sentencing record. Her attorney argued along the lines that she suggests, contending that her drug addiction reduced her culpability for the robbery. Moreover, the sentencing judge agreed with her attorney's argument and found a mitigating factor based on it. Although that mitigating factor may have ultimately been insufficient to reduce defendant's sentence below that suggested by the State - there were other aggravating factors, including defendant's previous criminal record, to outweigh it - we fail to see anything more her attorney could have done.