June 14, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSEPH MORALES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-10-1503, 05-10-1422, and 06-05-0896.
Joseph E. Krakora, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Sapp-Peterson and Haas.
Defendant Joseph Morales appeals from an August 3, 2011 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was the subject of three separate Hudson County indictments. In Indictment No. 05-10-1422, defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts two, five, and ten); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts three, six, and eleven); second-degree armed robbery, N.J.S.A. 2C:15-1 (count four); two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts seven and nine); and second-degree eluding, N.J.S.A. 2C:29-2b (count eight).
In Indictment No. 05-10-1503, defendant was charged with second-degree robbery, N.J.S.A. 2C:15-1 (count one), and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two). In Indictment No. 06-05-0896, defendant was charged with second-degree eluding, N.J.S.A. 2C:29-2b (count one), and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count two).
Pursuant to a plea bargain, defendant pled guilty to an amended charge of second-degree robbery under count one of Indictment No. 05-10-1422; count one, second-degree robbery under Indictment No. 05-10-1503; and count one, second-degree eluding, under Indictment No. 06-05-0896. On March 30, 2007, Judge Camille Kenny sentenced defendant, in accordance with the terms of the plea agreement, to eight years in prison, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one of Indictment No. 05-10-1422; eight years, subject to NERA, on count one of Indictment No. 05-10-1503; and five years on count one of Indictment No. 06-05-0896. All of the sentences were to run concurrently with each other. The judge dismissed all the remaining charges and imposed appropriate assessments and penalties. Defendant did not file a direct appeal from his conviction and sentence.
On June 10, 2010, defendant filed a petition for PCR. He sought to vacate his guilty plea and asked for a trial on all of the charges in the three indictments. Defendant's petition did not set forth any factual allegations in support of his requested relief.
The court assigned counsel to defendant. On January 19, 2011, counsel filed a brief on defendant's behalf. The brief noted that "[d]efendant has not listed an issue to be raised on post-conviction on the petition itself." However, counsel explained that defendant was seeking PCR "under the theory of ineffective assistance of counsel."
In the brief, counsel asserted that defendant's plea attorney and the attorney who represented him at the time of sentencing "did not adequately investigate or challenge" the allegations made against defendant in count one of Indictment No. 05-10-1503. Defendant had provided a factual basis in support of his plea to second-degree robbery as charged in the indictment. He admitted striking the victim, Karl Chung, and taking a chain from him.
Now, however, defendant's PCR counsel asserted that his prior attorneys "failed to speak with . . . Chung who had been in contact with [defendant's] family after this alleged incident took place." Counsel further alleged Chung had written a letter to the Hudson County Prosecutor claiming defendant was not involved in robbing him and provided a copy of the letter to the PCR court. The letter, which is neither dated nor certified, states:
To: Whom It May Concern At the Hudson County Prosecutor's Office
I, Karl Chung, am writing this affidavit for the wrongfully charged [defendant]. It was brought to my attention that he is being charged for robbery. A robbery that supposedly took place with me. I would like to clearify [sic] that this didn't take place. I felt it in my heart to correct this error so that the judicial system can continue to prosecute real criminals instead of wasting time and money on an error like this one. Thank you, for the moment of your time. The letter was purportedly signed by Chung.
Counsel conceded that "[t]he letter is lacking in detail." In his brief, he further asserted:
This counsel was able to speak with Mr. Chung by telephone and he indicated he never saw [defendant] involved in this incident. Mr. Chung did say that the co-defendant, Mr. Hansen, struck him and took his property but he did not believe [defendant] was involved. Mr. Chung indicated he was pressured by the investigating detectives to give a statement against [defendant].
Counsel further stated:
Defendant wished to go to trial on this charge but he was pressured by his defense counsel to take the plea. Had counsel investigated this matter, he would have seen that Mr. Chung was not robbed by [defendant] and that information could have been turned over to the authorities for consideration as to the resolution of this case. Mr. Chung indicated to this counsel he would state under oath he was not victimized by [defendant] despite his earlier assertion that he was.
None of counsel's factual allegations were set forth in an affidavit. Defendant filed no supplemental certification setting forth these allegations and no affidavit was provided from Chung.
Under these circumstances, Judge Lourdes I. Santiago denied defendant's petition for PCR in a thoughtful and comprehensive written opinion. The judge found defendant had failed to demonstrate a prima facie case of ineffective assistance of counsel that would warrant an evidentiary hearing. With regard to the specific allegations made by defendant's counsel concerning Chung, the judge stated:
Having considered all arguments made, this [c]ourt finds no merit with [defendant's] claim. While [defendant] did present a hand-written letter to the [c]ourt, purported to be that of the victim, [defendant's] counsel, himself, stated that he was not sure whether the letter was actually written by the victim. [Defendant's] counsel, who claims he received a phone call from the alleged victim, also stated he was not sure whether the person he spoke to on the phone was the victim. There was no certification or affidavit from the victim which indicates that [defendant] did not commit a robbery against him, and . . . the only writing that is available is an undated, hand-written letter to the Hudson County Prosecutor's Office stating that the robbery never occurred. This [c]ourt would be hard-pressed to believe that the hand-written letter belonged to the victim.
This appeal followed.
On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petitions For [PCR].
B. Trial Counsel Rendered Ineffective Legal Representation By Virtue Of His Failure To Investigate The Robbery Regarding Indictment No. 1503-10-05.
C. Defendant Is Entitled To A Remand To The Trial Court To Afford Him An Evidentiary Hearing To Determine The Merits Of His Contention That He Was Denied [T]he Effective Assistance Of Trial Counsel.
We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Santiago in her written decision. We add only the following.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed.2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. We apply the same standard to claims of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J.Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J.Super. 540, 546 (App. Div. 1987)).
Rule 3:22-10(b) provides:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.
"[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). Most importantly, a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J.Super. 421, 436-37 (App. Div. 2008) (emphasis added); see also R. 3:22-10(e)(3). Moreover, Rule 3:22-10(c) provides that "[a]ny factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Here, defendant failed to establish a prima facie case of ineffective assistance of counsel when he entered his guilty plea or at the time of sentencing. His claims regarding the Chung letter are bald, unsubstantiated assertions. The letter is uncertified and is non-specific to either of the robberies to which defendant pled. Neither defendant nor his PCR counsel presented any certifications or affidavits, as required by Rule 3:22-10(c), attesting to any of the factual allegations raised. Although counsel stated he was in contact with someone who purported to be Chung, he was not sure of the individual's identity. Chung also did not provide an affidavit or certification. Under these circumstances, Judge Santiago did not abuse her discretion in denying defendant's request for an evidentiary hearing. Bringhurst, supra, 401 N.J.Super. at 436-37.
Absent any affidavit or certification to the contrary from defendant, his attorney's claim that defendant was "pressured" into accepting the plea has no basis in the record. Judge Kenny thoroughly questioned defendant at the time of the plea to ensure it was voluntarily given. Defendant gave a factual basis for all three of the charges to which he pled. Thus, his "bald assertion" that he was pressured was also properly rejected by Judge Santiago.
Finally, defendant did not present any legally competent evidence in support of his claim that his attorneys failed to fully investigate his case. Defendant failed to "assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J.Super. at 170.