May 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLO CARDACI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 03-01-0096 & 03-06-0778.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2012 --
Before Judges Baxter and Nugent.
Defendant Carlo Cardaci*fn1 appeals from an August 11, 2010 Law Division order denying his petition for post-conviction relief (PCR). We affirm substantially for the reasons expressed by Judge Den Uyl in his comprehensive and well-reasoned written opinion of August 11, 2010. To the extent defendant raises on appeal PCR claims that he did not present in the Law Division, we decline to entertain them.
On November 9, 2004, defendant appeared before Judge Turnbach and agreed to enter a plea of guilty to thirty counts of Indictment No. 03-01-0096, namely, twenty-nine counts of third-degree burglary and third-degree theft, and one count of second-degree burglary with a weapon. On Indictment No. 03-06-0778, defendant pled guilty to four counts of third-degree unlawful possession of a weapon and four counts of second-degree certain persons not to possess weapons.
In entering his pleas of guilty, defendant expressly acknowledged that he was subject to any lawful sentence up to and including the maximum sentence.*fn2 He also acknowledged that the State "reserved its right to seek an extended term, to seek a parole disqualifier, and to speak at sentencing." In return for defendant's pleas of guilty, the State agreed to dismiss the charges against defendant's girlfriend, Monica Colon-Shird, at the time of sentencing.
On December 10, 2004, after granting the State's motion to sentence defendant to an extended term of imprisonment, the judge imposed an aggregate sentence on the two indictments of thirty years imprisonment subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). After two sentencing remands, a different judge imposed the same sentence that Judge Turnbach had imposed on December 10, 2004.
Defendant thereafter filed a PCR petition in which he asserted that trial counsel rendered ineffective assistance by: 1) erroneously informing defendant that, as part of the plea agreement, he would receive a sentence of no more than twenty years, when, in fact, the judge imposed a thirty-year NERA term; 2) failing to review the discovery documents with defendant prior to trial; 3) failing "to prepare and advise [defendant] on the evidence the State anticipated using at trial, [which resulted in] an unknowing and involuntary plea."
Defendant also asserted he was entitled to relief because:
4) the "trial court refused to afford [him] a suppression hearing prior to jury selection"; 5) "[o]ver the course of a 10-12 hour interrogation, [he] was repeatedly threatened with the arrest of his significant other, Ms. Colon, who had nothing to do with [the] case"; 6) the police and prosecution "fabricated evidence against Ms. Colon to obtain an arrest and subsequent indictment" of defendant; and 7) the prosecutor failed to advise defendant "of sentencing mergers that would have reduced real time consequences." Finally, defendant asserted that he satisfied the four-prong test articulated in State v. Slater, 198 N.J. 145, 157-58 (2009) for the withdrawal of his guilty plea, and the judge erred by holding to the contrary.
Judge Den Uyl conducted a hearing on defendant's PCR petition, and on August 11, 2010, issued a seventeen-page written decision in which he concluded that defendant had not established a prima facie case of ineffective assistance of counsel and was not entitled to an evidentiary hearing. The judge also rejected defendant's Slater motion. In particular, the judge determined that defendant's plea was knowing and voluntary, defendant had been fully advised of the ramifications of his open plea of guilty, and defendant failed to satisfy the requirements of Slater, ibid., for the withdrawal of his guilty pleas.
As for defendant's remaining claims, the judge rejected them as the "bald assertions" that we held in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), were insufficient to support a PCR claim. The judge observed that defendant had made "bare allegations without providing specific details on how, when, why and where counsel made errors or omissions." He held that "[w]hen the alleged errors . . . are considered individually or in the aggregate, . . . defendant has failed to explain . . . or establish how or why he was prejudiced or there is a reasonable probability that, but for counsel's unprofessional errors, he would not have pled guilty and would have insisted on going to trial[.]"
Finally, the judge held that nothing in the record supported defendant's contention that he ever moved to suppress evidence; defendant had not supported his "bare allegation[s]" concerning Colon with any evidence or affidavits; and the prosecutor had no obligation to explain to defendant which counts merged, and, in any event, defendant acknowledged on his plea form that his attorney discussed with him "the legal doctrine of merger." The judge signed a confirming order the same day denying defendant's petition in its entirety.
On appeal, defendant raises the following claims:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST PLEADING GUILTY TO A CRIME HE DID NOT COMMIT WAS VIOLATED.
II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT ESTABLISHED THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
A. The Trial Judge Mislead Defendant as to the Sentence Consequences.
B. The Prosecutor Failed to Inform Defendant of Merger With Respect to Certain Counts Reducing Actual Sentence.
In his pro se supplemental brief, defendant raises the following additional claims:
I. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER BOTH STATE AND FEDERAL CONSTITUTIONS, DUE TO TRIAL COUNSEL'S FAILURE TO INVESTIGATE RELEVANT ISSUES IN THE INSTANT CASE, THEREFORE HIS CONVICTION SHOULD BE REVERSED, OR AT LEAST HE SHOULD BE GRANTED AN EVIDENTIARY HEARING TO PRESENT EVIDENCE SUPPORTING HIS CLAIMS. DEFENDANT IS ENTITLED TO REMAND BECAUSE (PCR) COUNSEL FAILED TO ADVANCE AFFIDAVITS, AND EVIDENCE SUPPORTING PETITION FOR POST-CONVICTION RELIEF (Raised Below).
A. Trial Counsel Refused to Obtain the Grand Jury Minutes to Investigate and Challenge the Indictments.
B. Trial Counsel Refused to Visit, or Consult with Defendant as to Preparation of His Defense.
C. Trial Counsel Failed to File Pretrial Motions or Render Effective Assistance at Any Stage Prior to Sentencing.
D. Trial Court Erred in Proceeding Over Defendant's Objections to Counsel's Lack of Representation.
E. Defendant's Constitutional Right to Effective Assistance Was Violated When (PCR) Counsel Failed to Advance Defendant's Claims With Supporting Affidavits, and Evidence.
II. DEFENDANT SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING TO PRESENT EVIDENCE SUPPORTING THE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE (PCR) COURT'S FINDING OF FACT WAS BASED ON INCOMPLETE EVIDENCE.
A. (PCR) Counsel Failed to Present Any Affidavits, and Evidence to Support Defendant's Claims.
B. (PCR) Counsel Failed to Obtain Any Pertinent Information in Support of Petition for Post-Conviction Relief (Specifically the Grand Jury Minutes, and Transcript From the 11/08/2004 Proceeding, Despite Numerous Requests).
To establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient. Cummings, supra, 321 N.J. Super. at 169. First, a defendant must establish that counsel "made errors so serious that counsel failed to fulfill the counsel guarantee of the Sixth Amendment." Ibid.; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Second, a defendant must establish that counsel's performance was so deficient as to create a reasonable probability that these deficiencies materially contributed to his conviction. Fritz, supra, 105 N.J. at 58.
A court is not required to conduct an evidentiary hearing to resolve an ineffective assistance of counsel claim unless a defendant presents a prima facie claim and the facts supporting the claim lie outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992). As we observed in Cummings, similar to "a summary judgment motion, the [PCR] judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Cummings, supra, 321 N.J. Super. at 170. We described in Cummings the evidentiary showing a defendant must make to establish a prima facie case:
[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. [Ibid.]
As for Point I, we conclude defendant's claims lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Den Uyl in his written opinion of August 11, 2010.
In Point II, defendant raises additional claims of ineffective assistance of counsel that he never presented to the PCR court for consideration. In particular, he maintains that trial counsel rendered ineffective assistance by: failing to conduct an adequate pretrial investigation; failing to file a suppression motion; failing to develop and present the defense of diminished capacity; failing to protect defendant from prosecutorial misconduct; failing to accurately advise defendant of his custodial exposure and the consequence of an "open-ended" plea; failing to argue mitigating factors at sentencing; denigrating defendant; and failing to object to the prosecutor's improper victim impact comments.
As these claims were not presented in the Law Division, the judge had no opportunity to consider them or issue a ruling addressing the merits of these additional contentions. For that reason, we decline to consider them. State v. Robinson, 200 N.J. 1, 19-20 (2009) (holding that, with exceptions not applicable here, appellate courts will decline to consider issues not presented to the trial court when an opportunity to do so existed).
We now address the claims defendant advances in his supplemental pro se brief. Defendant maintains that trial counsel rendered ineffective assistance by failing to conduct an adequate investigation, failing to present affidavits and evidence supporting defendant's PCR claims, failing to obtain the grand jury minutes, refusing to visit defendant to prepare for trial, and failing to file pretrial motions. Defendant has not demonstrated how the result would have been different had counsel undertaken the tasks defendant describes. For that reason, defendant's claims amount to the "bald assertions" that we held in Cummings, supra, 321 N.J. Super. at 170, were insufficient to support a claim of ineffective assistance of counsel. Moreover, several of defendant's arguments suffer from the same procedural defect as the arguments advanced in Point II of counsel's brief, namely, they were not presented to the PCR judge. For that reason we will not consider them. We reject the claims defendant has advanced in his pro se supplemental brief.