November 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL MARTINEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1248.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2011
Before Judges Lihotz and St. John.
Defendant Angel Martinez appeals from the denial of his petition for post-conviction relief (PCR) seeking to vacate his guilty plea. We affirm.
These events underlie defendant's convictions. On September 20, 2003, defendant approached Jose Montesdeoca's home and asked for a glass of water. Montesdeoca went inside to oblige defendant's request. When Montesdeoca returned with the water, defendant, armed with a knife, entered the residence, stabbed Montesdeoca and took his wallet. Edwin Montesdeoca also was stabbed by defendant when he responded to his father's cries for help.
Defendant pleaded guilty to all offenses charged in an eight-count indictment: armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); two counts of second-degree aggravated assault, inflicting significant bodily injury, N.J.S.A. 2C:12-1(b)(1) (counts three and six); two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts four and seven); and two counts of third-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts five and eight). After merger, an aggregate twelve year sentence was imposed, subject to the parole ineligibility restrictions set forth in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was ordered to serve this sentence consecutively to a previously imposed twenty-one year sentence on an unrelated offense.
On direct appeal, defendant challenged only his sentence, which was presented on our Excessive Sentence Oral Argument calendar, and affirmed. State v. Martinez, No. A-2687-06 (App. Div. Jan. 10, 2008). Certification was not sought.
Defendant filed a petition for PCR seeking an evidentiary hearing on his request to vacate his guilty plea, asserting trial counsel was ineffective in failing to challenge the identification evidence and was deficient in providing advice regarding the penal consequences of his plea. Defendant also requested the court review the order imposing a consecutive sentence.
The PCR judge, who had accepted defendant's plea and imposed his sentence, denied the PCR petition. The court determined defendant's claims lacked merit, obviating an evidentiary hearing.
On appeal, defendant presents these issues for consideration:
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
A. The Failure of Counsel to Request a Wade*fn1 Hearing and the Confusing Nature of the Plea Bargain which Resulted in Consecutive Sentences, Deprived Defendant of his Constitutional Right to the Effective Assistance of Counsel.
B. The Right to Post-Conviction Relief.
C. Counsel's Behavior Cannot be Categorized as Anything other than Ineffective Requiring an Evidentiary Hearing.
In a supplemental pro se submission, defendant adds:
PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVANCE ALL [DEFENDANT]'S CLAIMS IN HIS PETITION FOR [PCR].
The analytic framework controlling our review is well-recognized. To establish an ineffective assistance of counsel claim, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
Second, a defendant must prove he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58. "Unless both parts of the [Strickland] test are established, defendant's claim must fail." State v. Echols, 199 N.J. 344, 358 (2009).
When evaluating an ineffective assistance claim, "'[j]udicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, 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 690, 104 S. Ct. 2066, 80 L. Ed. 2d 695. "Trial counsel may not be considered ineffective merely because [his] trial strategy failed." State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.) (citing State v. Davis, 116 N.J. 341, 357 (1989)), certif. denied, 169 N.J. 609 (2001). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61.
In the context of a represented defendant's guilty plea, "the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203, 208 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)).
Defendant's arguments collapse allegations of counsel's negligent performance with challenges to his sentence. We endeavor to untangle these contentions, addressing them separately.
As he did before the PCR court, defendant suggests counsel was ineffective for failing to challenge the identification testimony by not seeking a Wade hearing. We recite those facts surrounding the out-of-court identifications by Messrs. Montesdeoca.
Before Jose Montesdeoca was questioned, he "spontaneously identified" his attacker from "a [w]anted [p]oster" hanging on the wall as he went to use a restroom. He was "[one] hundred [percent] certain" the man in the poster, which depicted defendant, had stabbed him. The next day, Edwin Montesdeoca chose defendant's photograph from a six-photo array, maintaining he was "one hundred percent certain" the person who stabbed him and his father was the man pictured.
Defendant contends these identification procedures could have been suggestive and counsel should have moved to suppress the evidence or seek a Wade hearing "to investigate what was actually said by the detective [conducting the photo array] in the English to Spanish translation about identifying the suspect." Defendant offers no factual support for his suppositions of suggestibility. The PCR judge found no evidence to sustain the proposition that either victims' identification was "unduly suggestive," necessitating a Wade hearing. The PCR judge noted: petitioner's entire argument here hinge[d] on his contentions that no one can be certain what was said or not said to suggest that this might be the guy to identify, however he overlooks the significant fact that the victim responded instantaneously without any suggestion, identified his assailant, . . . before providing a statement to police and before the officer had an opportunity to suggest that [defendant] was the attacker.
The statements given to police by Messrs. Montesdeoca reflect they were asked open-ended questions with an opportunity to respond in their own words. These findings are supported by the record and defendant's petition offers no countervailing evidence.
To prevail, defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We are presented with no facts enabling us to conclude the identification procedures followed by the police were impermissibly suggestive, resulting in the "'substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 239 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). To the contrary, counsel's reasonable exercise of judgment in this regard was not deficient. Consequently, defendant has not satisfied the first prong of the Strickland/Fritz test. See State v. Castagna, 187 N.J. 293, 314 (2006) (holding ineffective assistance requires a determination that counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case" (internal quotation marks omitted)).
Defendant also maintains he pleaded guilty under extreme pressure because the plea bargain was confusing and counsel failed to fully explain his sentence could be ordered consecutively served to a previously imposed twenty-one year sentence. We find these assertions meritless.
As the PCR judge noted, prior to any colloquy regarding defendant's plea, the State requested any sentence be served consecutively to the sentence defendant was serving. The court also acknowledged defendant requested his sentence run concurrently to his current sentence. During defendant's examination by counsel the issue was discussed a second time:
[DEFENSE COUNSEL]: All right. And you understand that you're pleading to an open indictment without a plea offer, correct. [DEFENDANT]: Yes.
Q: [T]he prosecutor has already placed on the record that [the State] will be asking the judge to sentence you consecutively and I'll be asking the judge to sentence you concurrent[ly] to what . . . you're already doing as a sentence[.]
Defendant then responded affirmatively to the court's inquires to whether he had a sufficient opportunity to thoroughly discuss the matter with his attorney, whether counsel satisfactorily answered all of his questions, whether he was provided satisfactory legal advice and representation, and whether counsel fully reviewed all aspects of the written plea agreement with him.
The court returned to the sentencing issue a third time during its colloquy with defendant, inquiring:
[THE COURT]: Okay. And, [defendant] as [defense counsel] asked you, you understand that . . . you're pleading to the indictment and the . . . State is not making . . . a plea offer to you. You understand that?
Q: And at the time of sentencing [defense counsel] is going to argue that any sentence I . . . impose run concurrent with the sentence you're now serving.
A: Yes.. . . .
Q: [The prosecutor] is going to argue that I run the sentence consecutive[ly]. You understand that?
A: Yeah, I understand that. Yeah, I understand.
Q: And irrespective of your understanding of that, because I'm not making any representations to you of how I'm going to rule, you're still freely and willingly entering this plea?
Q: Any other questions you'd like to ask [defense counsel]?
A: No, I'm all right [sic].
In addition, the written plea agreement listed the maximum sentence exposure defendant faced if convicted of each offense and represented the State made no promises, stating it would not: speak at sentencing, seek an extended term or stipulate parole ineligibility. We find no ambiguity in the questions posed or ambivalence in defendant's answers in response regarding the sentencing possibilities. The fact that the sentencing court did not accept counsel's arguments for imposition of a concurrent sentence does not support a conclusion that counsel's representation was unconstitutionally ineffective. Cf. State v. Bey (V), 161 N.J. 233, 314 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).
Our review of the plea colloquy record reflects defendant was fully apprised that the court could impose a consecutive term of incarceration. We discern no evidence showing defendant was "misinformed about the . . . potential penal consequences related to his plea," or given "misinformation" that he "materially relied on" when entering his plea. State v. McQuaid, 147 N.J. 464, 490 (1997). The suggestion defendant was told his plea would result in a concurrent sentence is not reasonably grounded in the facts, but rather is the product of his "wishful thinking." State v. Marzolf, 79 N.J. 167, 183 (1979). A guilty plea will not be invalidated simply because the defendant did not receive the sentence he hoped for. See Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 1473, 25 L. Ed. 2d 747, 761 (1970).
We decline to entertain defendant's other arguments that the failure to file pre-trial motions and defense counsel's use of leading questions during the plea hearing "was a product of counsel's pressuring and coercing [defendant]." R. 2:11-3(e)(2). Defendant fails to recite facts demonstrating how he was pressured to plead guilty, especially in light of the statements he made under oath to the contrary. Moreover, the record reflects defendant voluntarily, knowingly, and intelligently entered into the plea agreement, understood the magnitude of the charges and the potential sentence if found guilty, as well as the provisions of the plea.
We further reject as without merit the related suggestion in defendant's supplemental submission that the use of leading questions was insufficient to establish a factual basis for the plea. Ibid. See State v. Smullen, 118 N.J. 408, 415 (1990) (holding a plea will be valid even if the factual basis for it is the result of leading questions). Defendant does not assert the factual assertions made during his plea were inaccurate. See State v. DiFrisco, 137 N.J. 434, 457 (1994). Further, the PCR request is also defeated by his failure to certify he would have rejected the plea agreement in favor of trial along with any concomitant imprisonment consequences upon conviction.
Following our review of the record in light of the applicable law, we determine defendant failed to present a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test, which warranted an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-64 (1992); State v. Cooper, 410 N.J. Super. 43, 56 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).