June 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ENRIQUE DEJESUS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1498.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges A. A. Rodriguez and Fasciale.
Defendant, Enrique DeJesus, appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
These are the allegations against defendant. On November 30, 2006, defendant was arrested as he approached a house in Ocean Township. He allegedly went there to sell cocaine to a woman resident. The police searched defendant and found 1.5 grams of cocaine in his possession, as well as a key to a motel room in Asbury Park. Defendant was taken to the motel room, where a second search was conducted. An additional 17.5 grams of cocaine were seized from the room. The indictment alleged that defendant intended to sell the cocaine taken from his person and the motel room.
After arrest and indictment, defendant's private counsel filed a motion to suppress evidence seized without a warrant. Thereafter, defendant entered into an agreement with the State to plead guilty to second-degree possession of cocaine, a controlled dangerous substance (CDS), with intent to distribute, N.J.S.A. 2C:35-5b(2). In exchange, the State agreed to dismiss two related charges: third-degree conspiracy to distribute a CDS and third-degree possession of CDS. The State also agreed to recommend a maximum seven-year term with a forty-two-month parole disqualifier to run concurrent to any probation violation sentences that might be imposed as a result of this conviction. Defendant, who was eligible to an extended term, also agreed to withdraw the motion to suppress evidence.
Judge Bette E. Uhrmacher accepted the plea and imposed a seven-year term with a forty-two-month parole disqualifier. Defendant did not file a direct appeal. However, three weeks after being sentenced, defendant filed a pro se PCR petition.
Appointed PCR counsel filed a verified petition and brief that alleged ineffective assistance of plea counsel because counsel "coerced and cajoled [defendant] into pleading guilty by refusing to proceed with trial and failing to advise defendant of the penal effect of his plea agreement." In support of the petition, defendant certified in pertinent part:
2. My attorney, Steven E. Nelson, Esq., did not file a motion to suppress the evidence in this matter despite clear search and seizure issues pertaining to the search of my home in Asbury Park by police from the township of Deal.
3. There were also Terry issues that counsel did not raise with respect to the search of my person, as I had nothing resembling a weapon on my person that would lead to such a search.
4. There was no communication from my attorney, as he refused to return my phone calls or provide me with my discovery file.
5. I paid my attorney $5000 to file the aforesaid motions and also to hire a forensic handwriting expert to analyze the different signatures that were forged onto the consent to search forms by the police. No expert was ever retained.
6. My attorney didn't know the facts of the case, specifically, he urged me to take a plea with respect to a school zone charge even though this matter did not pertain to a school zone. I had to point this fact out to him. From that point on I lost confidence in his ability to adequately represent me at trial.
7. In addition, I lost several witnesses who could have testified on my behalf, including a security guard who moved to California who was prepared to testify that the police were present at my apartment before I arrived, because of the delay and inaction of my attorney.
8. I specifically asked my attorney to appeal my Drug Court rejection which was never done.
9. Moreover, my attorney was well aware that my only wish throughout these proceedings was to proceed to trial. My attorney forced me into taking the plea.
10. At the time of the plea, I was worried that, in light of my attorney's unwillingness to proceed pursuant to my direction, I was at an extreme disadvantage at trial. I feared that I would not receive the representation necessary to represent my best interests.
Judge Uhrmacher heard oral argument and denied the petition in an oral opinion rendered on May 23, 2008. The judge first found that plea counsel was experienced, and that the plea agreement was "the best deal [defendant] could have gotten under the circumstances" because defendant was eligible for extended sentencing. The judge also noted that the completed plea form weighed heavily against defendant's contention that he was misinformed or forced to take a guilty plea. According to the judge, "the plea forms which show that [defendant] checked off all -- or at least his attorney checked off, but he signed, all those appropriate forms that show it was a knowing voluntary plea, not coerced, he understood the consequences, and he was satisfied with his attorney." The judge concluded that there was no evidence, only unsupported allegations that plea counsel forced or cajoled defendant into accepting the agreement.
On appeal, defendant contends:
DEFENDANT'S PETITION FOR [PCR] SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL.
We reject this argument.
New Jersey courts follow the standard formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The Supreme Court adopted this standard for deciding ineffective assistance claims arising under the New Jersey Constitution in State v. Fritz, 105 N.J. 42, 51 (1987). Pursuant to New Jersey's interpretation of its own constitution, in order to show ineffective assistance of counsel, a defendant must identify acts or omissions evidencing the alleged substandard professional judgment. Defendant must then prove that counsel's deficient performance had a prejudicial effect on the court's judgment. Ibid. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689.
Here, judged against that standard, we conclude that defendant has failed to establish the first requirement, substandard performance. From our careful review of the plea record, we do not perceive that plea counsel provided ineffective assistance in any way. The plea transcript belies any claims of coercion.
More importantly, we fail to see any prejudice suffered by defendant. He acknowledged his guilt. The plea agreement gave him a substantial advantage over the potential exposure of going to trial and facing conviction on all charges. Setting aside the plea agreement would only place defendant in the same position as before the entry of the plea.
We also find no basis to conclude that plea counsel was ineffective. Nor do we find that defendant was coerced or misled into entering the plea agreement. Moreover, the negotiated disposition reduced defendant's exposure from twenty-five years to ten years, and eliminated the possibility of consecutive periods of parole ineligibility. It is highly unlikely that defendant would have rejected this offer. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (applying the Strickland standard to a guilty plea case).
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