July 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
GEOVANY CAMINO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-07-0756.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).
Before Judges Espinosa and Guadagno.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In April 2006, defendant pled guilty pursuant to a plea agreement to one count of second-degree distribution of heroin, N.J.S.A. 2C:35-5(b)(2). The charge was based upon his sale of slightly more than twenty grams of heroin to an undercover police officer. The State agreed to dismiss other charges against defendant and recommend a sentence of eight years imprisonment with a minimum parole ineligibility period of four years.
Prior to sentencing, defendant filed a motion to withdraw his guilty plea. The trial court denied his motion and sentenced him to eight years with four years parole ineligibility in accord with the plea agreement.
Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence by order dated September 24, 2009. The Supreme Court denied his petition for certification, 201 N.J. 273 (2010).
Defendant filed a PCR petition in November 2009, in which he stated his claim for relief was based on "[e]xcessive sentence; misrepresentation of coun[s]el." A brief and certification were submitted on behalf of defendant in January 2011. In this brief, defendant raised additional claims, arguing that trial counsel was ineffective for failing to request additional discovery concerning the involvement of the informant, failing to conduct an adequate investigation, and allowing his guilty plea to go through when it was not knowing and voluntary; that appellate counsel was ineffective for failing to argue that the trial court erred in denying defendant's motion to withdraw his guilty plea; and that cumulative errors by counsel deprived him of a fair trial.
Defendant submitted a certification in support of his petition in which he said that, despite his request to see all discovery before pleading guilty, his trial counsel only showed him "a transcript of the wiretap." In addition, he certified that he "felt pressured into taking the plea even though [he] thought it was not in [his] best interests" and told his attorney that "numerous times." He described the pressure as follows:
7. I was told that if I did not take the plea and I proceeded to trial, my co-defendant, Jessica, would also have to go to trial and she would get jail time.
8. I was threatened with someone else's freedom if I did not take the plea so I felt I had no choice [b]ut to accept the plea.
9. I first plead guilty to an accusation but a condition of that plea was that I give a statement against my co-defendant.
10. I did not know about that condition before I pled guilty and when I could not give the statement, the plea was withdrawn.
11. If I had known that I had to give a statement against my co-defendant I never would have accepted that plea.
Defendant had earlier entered a guilty plea pursuant to a plea agreement that required him to provide a sworn statement to the police. When he did not provide the statement, the plea was vacated. The plea form applicable to the guilty plea entered in April 2006 was not provided to the court. However, the transcript of defendant's plea does not include any reference to a requirement that he provide a statement to law enforcement or testify against any other party. To the contrary, defendant was questioned at the plea hearing about his co-defendant, Jessica Gotti, the woman with whom he was living. He stated that she had no involvement in the narcotics distribution to which he was pleading guilty.
Defendant filed a motion to withdraw the guilty plea he entered in April 2006, based upon his assertion that he had been "reluctant" to plead guilty. The motion was denied.
The PCR judge denied defendant's petition by order dated March 18, 2011 and set forth his reasons in a letter opinion. Defendant presents the following issues for our consideration in his appeal.
THE PCR COURT ERRED IN DENYING DEFENDANT'S MOTION FOR PCR BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO REQUEST ADDITIONAL DISCOVERY CONCERNING THE INVOLVEMENT OF A POLICE INFORMANT AND TO FURTHER INVESTIGATE THIS ISSUE.
THE PCR COURT ERRED IN DENYING DEFENDANT'S MOTION FOR PCR BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
After reviewing the record and applicable legal principles, we are satisfied that these arguments lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following comments.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors the result of the proceeding would have been different" Strickland supra 466 U.S. at 687 694 l04 S.Ct. at 2064 2068 80 L.Ed.2d at 693 698
The record reflects that defendant's conviction was based upon a sale of more than one-half ounce of heroin to an undercover police officer and that he received a transcript of a wiretap In the face of such incriminating evidence defendant has made no colorable argument of innocence and has provided no factual support for his conclusory assertion that a purported failure to obtain unidentified discovery deprived him of the effective assistance of counsel.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial or appellate counsel within the Strickland-Fritz test See State v Preciose 129 N.J. 451 462-63 (1992) Accordingly the PCR court correctly concluded that an evidentiary hearing was not warranted