July 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RISHI RAKSHPAL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-05-00906.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Messano.
Defendant Rishi Rakshpal appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Indicted for fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(12), and third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7, defendant pled guilty, pursuant to a negotiated agreement with the State, to an amended charge of disorderly persons possession of marijuana. Defendant admitted to being in possession of .37 grams of marijuana while operating a motor vehicle in the Borough of Maywood on January 28, 2009. He was sentenced, in accordance with the plea agreement, to a four-year term of probation and appropriate fines and fees were imposed.
Defendant did not file an appeal. Instead, he filed a PCR petition, in which he alleged plea counsel was ineffective for failing to: (1) properly investigate the possibility that the narcotics belonged to someone else; (2) file a motion to suppress; and (3) properly advise defendant as to what exactly he was pleading guilty. In support of his first claim of ineffective assistance, defendant submitted a July 23, 2010 statement of Travis Jeter — eighteen months after the date of the underlying offense — supposedly taking responsibility for ownership of the marijuana in question.
Following argument, the PCR judge denied the petition, reasoning:
The affidavit submitted is dated July 23, 2010. This Court finds it suspicious that Mr. Je[t]er's affidavit appears some three months following petitioner's guilty plea and some eighteen months after the date of arrest. This Court also wonders that if petitioner was aware of the willingness of Mr. Je[t]er to exculpate him, why he would entertain the notion of a guilty plea when someone else was guilty and willing to confess to the crime?
Petitioner next asserts that he was coerced to accept the plea instead of taking the matter to trial. Petitioner offers no evidence or explanation as to how he was coerced by his counsel, why he did not reject the plea offer or hire another attorney, and/or why he did not bring Mr. Je[t]er to the attention of his counsel before acquiescing to the plea. Additionally, there is no evidence of coercion in the record to substantiate petitioner's claim.
Petitioner continues that he never agreed to a guilty plea of possession of marijuana,
The first page of petitioner's plea papers indicate clearly that petitioner was pleading to a disorderly person's possession of marijuana offense. Additionally, petitioner signed a stipulation of guilt concurrently with the plea agreement in which he admits, "I was in possession of .37 grams of marijuana on or about January 28, 2009 in the Borough of Maywood." Petitioner clearly agreed to accept a guilty plea and did in fact plead guilty.
Petitioner also contends that his counsel's failure to make a motion to suppress evidence was prejudicial to him. This argument is also moot. Once petitioner entered into a plea agreement, his counsel was no longer able to file a motion to suppress or any other motion for that matter. We will never know if his counsel would have filed a motion to suppress had petitioner not agreed to plead, nor will we know any other trial strategies his counsel may have moved along with as these all became irrelevant once petitioner pled guilty.
Further, such an action by defense counsel could easily be characterized as a strategic and tactical decision. By foregoing a motion, counsel was able to secure a highly beneficial plea deal for his client.
On appeal, defendant argues that he was entitled to an evidentiary hearing on his claims that plea counsel was ineffective. We disagree, and affirm substantially for the reasons stated by Judge Roma in his written decision of June 10, 2011, and his supplemental written opinion of December 22, 2011. We add only the following comments.
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, 56-59, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203, 208-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (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 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
Defendant's claims that he was pressured into pleading guilty and was not advised of the nature of the offense to which he was pleading guilty are clearly belied by the record of his plea hearing and sentencing. As is evident therefrom, defendant knew exactly what he was charged with, had reviewed the plea agreement, was aware he could proceed to trial and contest the propriety of the motor vehicle stop, but instead chose to accept the very lenient plea bargain offered by the State. His resultant guilty plea was therefore knowingly and freely entered.
As for counsel's failure to file a motion to suppress, defendant offers nothing by way of competent proof as to the merits of such an application. Similarly baseless is defendant's claim that counsel failed to investigate third-party guilt. Jeter's statement is unsworn and therefore not competent proof of its contents. Nor is it exculpatory of defendant. The statement makes no mention of the narcotics in question, nor does it prove that Jeter's possession of the marijuana was complete and exclusive of defendant. Indeed, defendant pled guilty under oath to possession of the marijuana found in his motor vehicle. In any event, if true, defendant had presumably been in possession of this third-party information since the date of the incident yet waited nearly eighteen months to disclose it — a circumstance for which counsel cannot reasonably be faulted. And lastly, regardless of the merits of either a potential suppression motion or Jeter's much belated claim, defendant simply has not shown any resultant prejudice. Defendant faced up to a five-year prison term upon conviction, with certain deportation given his non-citizen status. Instead, he was sentenced on a disorderly person's offense to probation, as a result of counsel's skillful negotiation of a plea bargain with the State. Clearly, the circumstances demonstrate defendant would have pled guilty to avoid the likelihood of a custodial term, a third-degree crime conviction and consequent deportation.