August 7, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NELSON ABARCA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2012
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Accusation Nos. 04-01-0004 and 05-01-0004.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, on the brief).
Before Judges Graves and Guadagno.
Defendant Nelson Abarca appeals from an October 18, 2010 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.
On January 8, 2004, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one of Accusation No. 04-01-0004); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2(a) (count two of the same accusation); and second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count one of Accusation No. 05-01-0004). The offenses occurred on three separate dates and there were three separate victims. In exchange for the guilty pleas, the State agreed to dismiss six burglary charges and two charges of criminal restraint and to recommend an aggregate thirty-year sentence, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
During his plea hearing, defendant testified he could not read English. Defendant confirmed, however, that he reviewed the forms with his attorney, who read the plea forms to him in Spanish, and he signed the forms voluntarily. Defendant also provided a factual basis for his pleas, and when his attorney asked him if they had "spent about five hours discussing the case today and two hours yesterday, " he answered, "Yes." In addition, when questioned by the prosecutor, defendant provided the following testimony:
Q. Has [your attorney] answered all your questions?
Q. Are you satisfied with her services?
Q. Okay. And all of these forms that we filled out, they are, in fact, in English?
Q. Has [your attorney] read all of these forms to you?
Q. And she's answered all your questions and given you enough time?
Q. And you understand that at the beginning of this proceeding there was a correction made to your plea?
Q. The aggregate term, that is the total term, remains the same?
Q. Which is 85 percent of thirty years?
Q. And you understand that?
Q. And instead of fifteen and fifteen consecutive to each other it would be twenty and ten?
Prior to sentencing, defendant was evaluated at the Adult Diagnostic and Treatment Center (ADTC), and it was determined that he did not qualify as a repetitive and compulsive sex offender under N.J.S.A. 2C:47-3. At sentencing on June 4, 2004, defendant was assisted by a Spanish-speaking interpreter and when the court asked him if he wanted to make a statement, he replied, "Yes. I would like to ask forgiveness from the victims. This wouldn't have happened to me if it wouldn't have been for drugs. And I'm going to change my life."
The court noted that defendant had been deported, but he returned to the United States illegally. The court also summarized the pertinent facts as follows:
The first victim of Mr. Abarca was an 81 year old woman who had been asleep in her first floor bedroom. And she awoke to find Mr. Abarca standing at the foot of her bed, who proceeded to get on top of her and force himself into her. He did this for a time, apparently did not ejaculate, then he left.
The second situation involves a 76 year old female sitting in her kitchen. Mr. Abarca pulled open the front door, demanded alcohol, grabbed her, and pulled her down on the couch and pulled off her undergarments. As [the prosecutor] noted, a car pulled up in the driveway and Mr. Abarca left.
On August 3, 2003, there was another incident involving a young victim, who was 14. And Mr. Abarca force fed her alcohol and engaged in sexual penetration with this victim.
The court sentenced defendant in accordance with the negotiated plea to a twenty-year prison term with an eighty-five percent period of parole ineligibility under NERA for aggravated sexual assault; a consecutive ten-year term subject to the NERA period of parole ineligibility for attempted aggravated sexual assault; and a concurrent seven-year term with three and one-half years of parole ineligibility for sexual assault. Mandatory penalties, assessments, and Megan's Law requirements were also imposed.
Defendant appealed and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. On January 10, 2006, we found that defendant's aggregate sentence was not manifestly excessive, and we affirmed the judgments of conviction.
On December 6, 2006, defendant filed a petition for PCR. Following the assignment of counsel, defendant submitted a certification in support of his petition. In his certification, defendant stated that he "always had problems understanding things, " and he did not understand the terms of the plea agreement:
I only saw [my attorney] in court. When I pled guilty, [she] told me to sign the form and that I was only pleading guilty to the crime with the girl from the park and that my total sentence would be 7 years. She just said sign here and you are going to get 7 years. Then later, when I showed some of my paperwork to people at the prison, I found out that my sentence was really 30 years with 85%. Also, I was never told what civil commitment means.
I did not want to plead guilty to 3 sex crimes, and I never understood that I was agreeing to be sentenced to 30 years with 85%.
During oral argument on March 4, 2010, PCR counsel argued defendant was not competent to enter guilty pleas, and the court determined that an evidentiary hearing was necessary to resolve defendant's claims. The hearing was conducted on August 19, and September 2, 2010. The court set forth its findings and conclusions in an oral decision on October 14, 2010, and the court entered an order denying defendant's request for PCR on October 18, 2010.
On appeal from the denial of his petition, defendant presents the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST ENTERING A GUILTY PLEA UNDER CIRCUMSTANCES IN WHICH HIS COGNITIVE LIMITATIONS PRECLUDE HIS ABILITY TO ENTER A KNOWING AND INTELLIGENT PLEA WAS VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE THE DEFENDANT
PROVED INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL BY CLEAR AND CONVINCING EVIDENCE.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED.
Based on our examination of the record and the applicable law, we have concluded that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.
Only two witnesses testified at the plea hearing. Daniel Greenfield, a psychiatrist, who examined defendant on December 14, 2007, testified for the defense, and the State presented testimony from defendant's trial attorney. In addition, the court considered a report by Elizabeth Hogan, a psychiatrist, prepared on October 5, 2009, the ADTC evaluation by Jeffrey Singer, a psychologist, prepared on May 11, 2004, and a transcript of the plea hearing on January 8, 2004.
The court found that Dr. Greenfield's testimony was not persuasive and rejected defendant's argument that he was not competent to enter his pleas. The court also found that defendant entered his pleas knowingly and voluntarily and rejected defendant's claim that his attorney misled him.
Based on our independent review of the record, we conclude that the trial court's factual findings are supported by sufficient credible evidence, State v. Locurto, 157 N.J. 463, 472 (1999), and that the court correctly applied the legal principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge Dennis V. Nieves on October 14, 2010.