January 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESUS SERRANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-09-03054 and 04-11-03505.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 10, 2011
Before Judges Cuff and St. John.
Defendant Jesus Serrano pled guilty to two counts of third degree endangering the welfare of a child and received concurrent three-year probationary terms -- now complete. In addition, he is subject to Megan's Law,*fn1 including Community Supervision for Life (CSL). Defendant appeals the December 22, 2010 order denying his petition for post-conviction relief (PCR), in which he moved to withdraw his guilty plea.
Following imposition of sentence in August 2005, defendant did not file a notice of appeal. Rather, on July 14, 2010, defendant filed a petition for PCR in which he asserted he was innocent of the charges and entered an uninformed guilty plea. In his petition, defendant relates, and the record reflects, that one of the victims had recanted before defendant entered his guilty plea. Defendant also alleged that the other victim accused him out of spite in retaliation for his strict supervision. He alleged in his petition that his attorney advised the recantation would only assist negotiations of a satisfactory plea agreement.
Defendant also asserted he could not afford to pay his retained attorney to try the case. Defendant also stated that he was and remains fluent in Spanish, he was not fluent in English, and all plea agreement forms were in English. He alleged that he did not understand the ramifications of his plea, particularly the Megan's Law consequences. Therefore, he asserted that his plea was uninformed and not voluntary. In addition, both victims in April 2010 issued written recantations of their accusations. Defendant sought to withdraw his guilty plea. He also alleged his retained counsel provided ineffective assistance.
In his December 22, 2010 written opinion, Judge Cassini held that defendant's request to withdraw his guilty plea was not a cognizable claim for PCR. The judge also held that defendant failed to establish a prima facie case of ineffective assistance of counsel. Judge Cassini observed that "projecting expenses associated with trial work can hardly amount to behavior which falls outside the range of acceptable legal practice."
Judge Cassini also rejected the claim that defendant was not aware of the consequences of Megan's Law, particularly CSL. The judge noted the transcript of the plea proceeding, and the plea agreement forms belie this contention.
As to defendant's claim that a language barrier prevented him from understanding the nature and consequences of his guilty plea, Judge Cassini stated:
[I]t equally does not seem credible. Before the taking of his plea, Mr. Serrano appeared before this [c]court for arraignment and numerous status conferences. At no time during these appearances did he indicate that he did not understand what was happening, nor did he indicate he did not understand English, nor did he request an interpreter.
On appeal, defendant raises the following arguments:
THE PETITION FOR POST CONVICTION RELIEF SHOULD HAVE BEEN GRANTED AND DEFENDANT-APPELLANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA. MR. SERRANO'S REQUEST TO WITHDRAW HIS GUILTY PLEA IS A COGNIZABLE CLAIM WITHIN A PETITION FOR PO[S]T-CONVICTION RELIEF.
DEFENDANT-APPELLANT'S CONVICTIONS SHOULD BE REVERSED UNDER THE THEORY OF INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT-APPELLANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE GRANTED AS DEFENDANT-APPELLANT DID NOT UNDERSTAND THE TERMS OF THE PLEA AGREEMENT.
The standard governing review of a PCR petition is well known. First, defendant must show that his attorney's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Second, defendant must demonstrate that counsel's shortcomings caused prejudice to defendant. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
In the context of allegations that counsel provided ineffective assistance of counsel during the plea process, defendant must demonstrate that counsel's advice "'was [not] 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)). Reviewing courts must indulge in a strong presumption that counsel provided reasonable assistance. State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986) (citing Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). As to the second prong, defendant must demonstrate that there is a reasonable probability that he would not have accepted the plea and would have proceeded to trial but for counsel's errors. Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Prejudice is not presumed. Fritz, supra, 105 N.J. at 61.
Here, our review of the record reveals little to support the allegations of the petition that defendant received poor advice and did not understand the consequences of his plea. The documentation associated with the guilty plea clearly expresses that defendant would be subject to Megan's Law, particularly CSL. At the plea proceeding, defendant acknowledged that he understood the terms of his sentence. It is also telling that defendant reported to probation immediately after imposition of sentence to register as required by Megan's Law. The objective record belies his assertion that he did not understand the consequences of the plea.
Defendant also offers no other evidence to support his contention that counsel provided advice below the level expected of competent counsel. The petition and supporting brief contain no more than unsupported allegations of poor advice. In fact, the PCR petition is founded almost wholly on a request to withdraw his guilty plea based on the recantations of both victims. A PCR petition is not the vehicle to seek to withdraw a guilty plea. See R. 3:22-2.
Although we hold that defendant failed to establish a prima facie case of ineffective assistance of counsel, and Judge Cassini properly dismissed the petition, we affirm the order dismissing the PCR petition without prejudice to permit counsel to file a motion to withdraw his guilty plea. See State v. Slater, 198 N.J. 145 (2009).