On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-12-1080.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Messano and Espinosa.
Defendant Edgar Perez appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.
Defendant was indicted on two counts of kidnapping, N.J.S.A. 2C:13-1(a) and N.J.S.A. 2C:13-1(b)(2); possession of a gun with the purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a); possession of a gun without a permit, N.J.S.A. 2C:39-5(b); and armed burglary, N.J.S.A. 2C:18-2. It was argued on his behalf that he was incompetent to stand trial. The court conducted a hearing and made detailed findings regarding the testimony received from defendant, lay and expert witnesses, and a medical history that reflected defendant's ability to "plan and execute an elaborate escape [while at Trenton Psychiatric Hospital], where the defendant was able to tamper with the window, create a dummy to look like he was sleeping in his bed and managed to travel from Trenton hospital to Irvington, New Jersey, where later apprehended." The court concluded it was "[c]lear . . . that the defendant is malingering and faking this to manipulate the courts so that he never actually has to face trial."
Thereafter, defendant pled guilty to the indictment pursuant to a plea agreement in which the State agreed to recommend a sentence of twenty years subject to the No Early Release Act, (NERA), N.J.S.A. 2C:43-7.2. He was sentenced accordingly.
Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence but remanded to the trial court to enter an amended judgment of conviction to merge the two convictions for kidnapping. State v. Edgar D. Perez, No. A-0306-07 (App. Div. Jun. 05, 2008).
Defendant filed a petition for PCR on June 16, 2008, in which he
argued he was denied the effective assistance of counsel because
"there were pre-trial issues such as competence, Miranda,*fn1
and psychiatric issues" that were not "fully developed or
disposed of." Defendant's request for the appointment of counsel was
granted and an amended petition for PCR was filed. Defendant raised
additional arguments including allegations that his counsel failed to
conduct an adequate pre-trial investigation; that no interpreter was
provided at the time of the custodial interrogation, rendering his
statement involuntary; that no interpreter was used to assist him in
consultations with his attorney; that he was not provided with
relevant discovery to enable him to make an informed decision
regarding his guilty plea; and that his attorney pressured him into
entering the plea agreement.
The PCR court conducted an evidentiary hearing at which both defendant and his trial counsel testified. The PCR court placed detailed findings on the record and denied defendant's petition by order dated June 18, 2009.
In this appeal, defendant argues he was denied the effective assistance of counsel because his attorney failed to investigate the viability of an intoxication and/or insanity defense; failed to file a motion to suppress his statement; failed to use an interpreter during meetings; failed to explain the elements of the offenses with which he was charged; and misrepresented the maximum penalty defendant faced. We are not persuaded by any of these arguments and affirm.
As the PCR court observed, at least some of the arguments defendant now raises could have been raised on direct appeal and are therefore procedurally barred. R. 3:22-4. Nonetheless, the PCR court addressed the merits of each of the claims raised and set forth detailed findings to support its conclusion that defendant was not entitled to relief.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such 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 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
To support his argument that counsel was ineffective in failing to file a Miranda motion, defendant claimed that his statement to police was not voluntary because he was under the influence of drugs and no Spanish interpreter was provided to assist him. The PCR judge noted that the Miranda form was in Spanish; that, based upon his review of the transcript, there was "no language barrier" and "defendant was not telling the truth in claiming that he didn't understand his rights or that he didn't understand what the detective was saying when he made a confession." The court also found credible the detective's testimony that defendant was not under the influence of any drugs or alcohol at the time he made his statement. Finally, the judge stated it was "apparent" defense counsel "made the right decision" in not ...