July 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ARISTOTLE DELPILAR, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2013.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 08-06-1088, 09-10-1874, 09-12-2156.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Gaetano T. Gregory, Hudson County Acting Prosecutor, attorney for respondent (Miriam Acevedo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Reisner and Yannotti.
Defendant Aristotle Delpilar appeals from an order entered by the Law Division on March 1, 2012, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Indictment No. 08-06-1088 with third-degree attempted theft by unlawful taking, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3 (counts one and two); and third-degree forgery, N.J.S.A. 2C:21-1(a)(2) (counts three and four). Defendant pled guilty to two counts of attempted theft by unlawful taking. The State agreed to dismiss the other charges in the indictment. The court sentenced defendant to concurrent, two-year terms of probation, and ordered that the sentences be served concurrently with the sentence imposed on Indictment No. 08-05-1031. The judgment of conviction was entered on December 12, 2008.
Defendant also was charged under Indictment No. 09-12-2156, with third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count one); fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count two); and third-degree forgery, N.J.S.A. 2C:21-1(a)(2) (counts three and four). In addition, defendant was charged under Indictment No. 09-10-1874 with third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (count one); and fourth-degree theft of credit cards, N.J.S.A. 2C:21-6(c)(1) (count two).
Defendant pled guilty to third-degree forgery, as charged in count three of Indictment No. 09-12-2156, and third-degree fraudulent use of a credit card, as charged in count one of Indictment No. 09-10-1874. The State agreed to recommend concurrent, probationary sentences, with credit for time served, and dismiss the remaining charges. The court sentenced defendant to five years of probation on both charges, and ordered that the sentences be served concurrently with the sentences imposed under Indictment No. 10-11-1939 and Indictment No. 08-06-1088. The judgments of convictions were entered on August 9, 2011.
Thereafter, defendant filed a pro se petition for PCR, in which he alleged he was denied the effective assistance of counsel. Defendant claimed that his attorney failed to present and argue motions to reduce bail, dismiss the indictments and assert a speedy trial claim. Defendant also alleged that his attorney failed to keep appointments with him in jail and did not adequately review the charges against him.
The court appointed PCR counsel for defendant. PCR counsel thereafter submitted a brief in which he argued that defendant was denied the effective assistance of counsel and should be permitted to withdraw his pleas. PCR counsel also raised the arguments that defendant had presented in his pro se submissions.
The court considered the petition on March 1, 2012. The court rejected defendant's claim that he had been denied the effective assistance of counsel. The court noted that defendant had not established that motions to reduce bail, to dismiss the indictments or assert a speedy trial claim would have been meritorious. The court also found that defendant had not shown how he was prejudiced by counsel's failure to interview witnesses, keep scheduled appointments or adequately review the charges.
The court additionally denied defendant's motion to withdraw his pleas. The court considered the application in light of the criteria set forth in State v. Slater, 198 N.J. 145 (2009), and noted that defendant had not "presented a single, specific credible fact to support his assertions" that trial counsel had coerced him into pleading guilty.
The court entered an order dated March 1, 2012, denying PCR. This appeal followed. Defendant raises the following arguments for our consideration:
THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
(A) DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST.
(B) DEFENDANT WAS PREJUDICED UNDER THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEAS.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A) AS A RESULT OF TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE OF COUNSEL DEFENDANT WAS COERCED TO PLEAD GUILTY.
We are convinced from our review of the record that these arguments are entirely without merit. We affirm the denial of PCR substantially for the reasons stated by the PCR judge in his March 1, 2012 bench decision. We add the following.
A defendant's claim of ineffective assistance of counsel is considered under the standards established 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). Therefore, in order to prevail on a claim of ineffective assistance of counsel, a defendant first must show that his attorney's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, the defendant must show that attorney's deficient performance prejudiced his defense. Ibid.
The Strickland test applies to challenges to guilty pleas based on the ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985). A defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S.Ct. at 369, 88 L.Ed.2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 (1970)). A defendant also must show "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210.
Here, defendant alleged he was denied the effective assistance of counsel because his attorney failed to argue his pro se motions to reduce bail, to dismiss Indictment No. 08-05-1031, and to dismiss Indictment No. 08-06-1088 for failure to provide a speedy trial. We are satisfied that the PCR court correctly rejected these claims. Defendant failed to establish that any of these motions would have been granted, even if his attorney had argued them.
Defendant additionally alleged that his attorney failed to review certain evidence, interview witnesses and keep appointments to meet him in jail. As the PCR court found, defendant did not establish that he was prejudiced by these alleged errors. Indeed, defendant did not establish that there was a reasonable probability he would not have pled guilty if counsel had reviewed the evidence, interviewed the witnesses or kept the appointments with him.
In addition, defendant failed to show that, but for his attorney's alleged errors, he would not have entered the plea and would have instead insisted on going to trial on the charges. The record shows that defendant received a favorable plea deal. He pled guilty to several charges, secured dismissal of other charges, and was sentenced to an aggregate term of five years of probation. Defendant faced possible incarceration if he went to trial and was convicted.
We are also convinced that the PCR court correctly determined that defendant should not be permitted to withdraw his pleas. The court considered defendant's application in light of the criteria set forth in Slater, supra, 198 N.J. at 158-62, and correctly found that defendant had not established grounds for withdrawal of the plea.
Defendant did not assert a claim of innocence. He said he should be permitted to withdraw his plea because his attorney was deficient and he was forced to enter the plea but defendant failed to show that he was denied the effective assistance of counsel. In addition, defendant's claim that he was forced to enter the plea is nothing more than a bald assertion. See State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (noting that a defendant must present more than bald assertions to establish a prima facie case of ineffective assistance of counsel), certif. denied, 162 N.J. 199 (1999). As the PCR court noted, when defendant entered the plea, he stated under oath that he was not forced or threatened to plead guilty.
Furthermore, defendant entered his plea as a result of a negotiated plea bargain, and the State would be prejudiced if defendant is allowed to withdraw the plea. Several years have passed since this matter was initially investigated and the State would be prejudiced if it is required to try the cases at this time.