December 26, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD J. TESCHNER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 06-05-0577, 06-06-0706, 06-06-0785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012
Before Judges Parrillo and Maven.
Defendant Ronald J. Teschner appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant's guilty plea entered on April 4, 2007, resolved twenty-four charges in three separate indictments, the most serious of which was first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). Thus, pursuant to an agreement negotiated with the State, defendant pled guilty to two counts of third-degree drug possession, N.J.S.A. 2C:35-10(a)(1) and (3), which resolved two indictments; and as to the third, he pled guilty to second-degree burglary, N.J.S.A. 2C:18-2; second-degree eluding, N.J.S.A. 2C:29-2(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1).
At the plea hearing, defendant admitted that on March 16, 2006, he entered his marital home by breaking through drywall to access the inside lock, without permission and while under an active restraining order, for the purpose of inflicting or threatening to inflict bodily injury on Kelly Teschner, his wife, who he knew was home at the time. That same day, he also eluded Wayne police officers at speeds of over 50 MPH, which "substantially" exceeded the posted speed limit of 35 MPH. Defendant ignored their orders to stop because he knew they were trying to arrest him. The combination of speed and the manner of operation of the vehicle exposed others to the risk of injury or death. In fact, defendant struck a vehicle operated by Rosa Cassanna in the side while eluding and she was injured as a result of the accident.
Defendant also admitted that he caused bodily injury to Officer John Reardon while Reardon was in the performance of his duties by punching a window out at the police station after he was already under arrest. The window shattered and a nail from the window lodged in the officer's neck. Defendant admitted that the action was reckless, though the result not intentional. Concerning witness tampering, defendant admitted that on April 24, 2006, through a third person, he attempted to exert influence on Kara Carney to provide an alibi for him.
Lastly, defendant admitted that on January 13, 2006, he possessed Ketamine, a controlled dangerous substance, and on December 30, 2005, he was in knowing possession of cocaine.
On June 15, 2007, defendant was sentenced in accordance with the plea agreement to an extended aggregate term of eleven years, N.J.S.A. 2C:44-3, subject to the eighty-five percent period of parole ineligibility of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with all individual terms made to run concurrently.
Defendant filed a timely PCR petition, alleging, among other things, ineffective assistance of counsel. The judge denied the petition on October 7, 2009,*fn1 concluding:
I have very carefully gone over everything and I've tried to very carefully answer each point, point by point. I believe that there were a number of status conferences in this matter. There was a major bail hearing with letters on [defendant's] behalf in this matter. [Defense counsel] actively negotiated this case with the Prosecutor. The defendant indicated he's had full opportunity to go over these matters with his attorney. He answered yes, and that he was satisfied with his services.
The defendant is very experienced in the criminal justice area. He has multiple prior convictions going back to the 1980's. The defendant was thirty-six as of 2006, so I assume he's thirty-nine now. But he was thirty-six then, well into adulthood. Much experience with the criminal justice system. Certainly an intelligent person. He dismissed [previous counsel] with whom he was dissatisfied. I would note [previous counsel] is very experienced, and I'm not commenting on anything because I don't know what happened there. He dismissed him early on.
[Defense counsel] then took over the case. There was active negotiation with the Prosecutor. The forms are all filled out completely. He was completely warned of all his constitutional rights. Factual bases were carefully taken in this case. I believe that the protection of the public amply justified the one year extra on the extended term. [Defense counsel] was not ineffective whatsoever. He's very experienced, very knowledgeable.
This is an attorney who's probably practiced for forty or forty-five years, and I want to stress, if I thought he made a mistake, I would say so. I am just noting he's very experienced. He's not a neophyte, he hasn't got moderate experience, he's got extensive trial and negotiation experience. And he obviously used it to the best of his ability in these cases.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING.
II. DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT AT THE PLEA AND SENTENCING HEARINGS.
It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); State v. Fritz, 105 N.J. 42, 58-61 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
Defendant first contends that counsel was ineffective for misinforming him about the extent of the injuries suffered by two of his victims, Rosa Cassanna and Officer Reardon. We reject this claim as without merit. R. 2:11-3(e)(2). Defendant pled guilty to assault crimes requiring proof of "bodily injury" only, and the record well supports a basis for defendant's pleas to those offenses. Moreover, defendant was sentenced with the express understanding that these victims suffered "bodily injury" and not "serious bodily injury." We conclude that defendant has failed to demonstrate any deficiency on counsel's part or that any such claimed deviation prejudicially affected the outcome.
Defendant also claims counsel was ineffective at time of sentencing for failing to seek merger of the second-degree crimes of eluding a police officer and his assault on Rosa Cassanna, and for failing to argue in mitigation of sentence. As to the former, suffice it to say, the offenses are separate and distinct, targeting and proscribing two different types of criminal conduct, neither of which encompasses or shares common elements with the other. As to the latter, defendant's admitted drug dependency neither justifies nor excuses his conduct, State v. Ghertler, 114 N.J. 383, 390 (1989), and, in any event, simply pales in comparison to the substantial weight of the aggravating factors present here, which more than justify the sentence imposed upon defendant pursuant to his freely and knowingly negotiated plea with the State.