September 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEXANDRA CHAVARRIAGA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-12-0898.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 18, 2012
Before Judges Reisner and Hayden.
Defendant Alexandra Chavarriaga appeals from the February 3, 2011 Law Division order denying her petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that defendant was employed as a part-time bookkeeper between June 2006 and December 2007. An investigation after her termination produced evidence that over the course of two years defendant had used company checks and a company credit card to obtain cash and numerous items including diamond rings, collector dolls and antiques totaling over $250,000. On December 10, 2008, defendant was charged with eleven counts of third-degree forgery, N.J.S.A. 2c:21-1a(2), eleven counts of third-degree uttering a forged instrument, N.J.S.A. 2C:21-1a(3), one count of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h), and one count of second-degree theft by deception, N.J.S.A. 2C:20-4. Prior to the trial, defendant and the State reached a plea agreement whereby defendant agreed to plea guilty to all the charges and pay full restitution and the State agreed to recommend a seven year flat sentence on all counts.
At a plea hearing on February 6, 2009, defendant agreed that she had an opportunity to discuss each question and item of information on the plea agreement form with her attorney and understood all of it. She stated that she understood she had a right to trial and that she was waiving her rights. Moreover, she affirmed that no one threatened her or forced her to plead guilty, and that she wished to plead guilty because she was guilty. She also agreed to pay the full amount of restitution, which she acknowledged was, at that point, $257,712 but would increase as a result of a continuing investigation into other thefts subsequent to the indictment. Defendant pled guilty to all counts after providing a factual basis for each charge.
On May 21, 2009, Judge Armstrong sentenced defendant to seven years in prison and required her to pay restitution of $279,159 and statutory assessments of $3,030. At sentencing she stated, "I just want to say I'm sorry for what I did."
In early April 2010, defendant obtained new counsel and filed a PCR petition, claiming ineffective assistance of counsel. She contended that she did not commit the crimes to which she had pled guilty. Rather, she had been grossly mistreated and then framed by her employers. Defendant requested that the court vacate the guilty pleas or, at a minimum, conduct an evidentiary hearing.
At oral argument on February 3, 2011, defendant asserted, among other issues, that her trial counsel induced her plea by fraudulently misrepresenting the penal consequences if she went to trial. Defendant contended that, prior to the plea hearing, her attorney informed her that if she lost at trial, she could spend the rest of her life in prison. In addition, the plea agreement forms, which she signed, listed each criminal charge and noted that the total statutory maximum for all crimes combined was 125 years. During the plea hearing, Judge Armstrong described a similar possible outcome, noting that under "extraordinary circumstances," she could be sentenced to 125 years' imprisonment.
Defendant also argued that counsel did not adequately prepare or investigate her case even though she told him she was not guilty. Moreover, defendant claimed that at sentencing trial counsel should have questioned the amount of restitution she agreed to pay.
Judge Armstrong found defendant's arguments unpersuasive. He noted that "the 'benchmark' for judging claims of ineffective assistance of counsel 'must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having a just result.'" State v. Fritz, 105 N.J. 42, 58 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984)). Under the Strickland standard, the defendant must show (1) that counsel's errors were sufficiently serious, and (2) that counsel's deficient performance caused the defendant prejudice. 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The judge further explained that the defendant must overcome the presumption that her counsel's service was within the wide range of reasonable professional conduct, and that a mere showing that counsel's error had some conceivable effect on the outcome of proceedings is insufficient.
In dismissing defendant's claims, the judge concluded that petitioner's ineffective assistance claim lacks merit. The allegations of [trial counsel] "defrauding" defendant by pressing her to enter a voluntary, knowing and intelligent plea are without any support demonstrated to this court in the record. Thus, . . . an attorney's decision to advise his client to accept the plea which she then certifies to being a knowing, intelligent and voluntary acquiescence can not serve as a basis for finding counsel ineffective.
Moreover, the petitioner received a sentence below a potential statutory maximum that would give petitioner one-hundred and twenty-five years in the state prison, . . . four-hundred ninety-five thousand dollars in fines and a twelve-hundred dollar VCC assessment. . . . Petitioner, in fact, was able to secure a favorable sentence, that is seven years with no period of parole ineligibility and a significantly reduced amount of time in state prison. Accordingly, petitioner's claim of ineffective assistance of counsel is found to be without merit.
Defendant has failed to demonstrate to this court any colorable basis in law or fact that would grant her the post-conviction relief that she now seeks.
This appeal followed.
Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Without such a showing, no evidentiary hearing is required. See State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We have carefully considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Armstrong in his February 3, 2011 opinion. We add only the following comments.
In order to obtain relief on an ineffective assistance of counsel claim, a defendant must show both that her counsel's performance was deficient and that counsel's performance prejudiced her defense. Fritz, supra, 105 N.J. at 58. In the context of a guilty plea, defendant must show that, but for her counsel's deficient representation, "there is a reasonable probability "that she "would not have entered a guilty plea and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994). Although defendant claims in her PCR petition that trial counsel was ineffective in numerous ways - e.g., in failing to file a suppression motion, failing to investigate the charges, and failing to question the amount of restitution - defendant has not submitted any certifications or documentary evidence demonstrating that, but for her counsel's alleged deficiencies, the results would have been different. We are in accord with Judge Armstrong that defendant offered nothing more than bald assertions of ineffective assistance. See Cummings, supra, 321 N.J. Super. at 170.
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