September 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
PETER A. BARR, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-11-1806.
Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet and Joie Piderit, Special Deputy Attorneys General/Acting Assistant Prosecutors, of counsel; Ms. Piderit and Marie G. McGovern, on the brief).
Before Judges Sapp-Peterson and Haas.
Defendant appeals from the trial court order dismissing his petition for post-conviction relief (PCR), without first conducting an evidentiary hearing. He contends he established a prima facie case of ineffective assistance of counsel that required an evidentiary hearing. Because the PCR judge properly found the evidence inadequate to sustain defendant's burden on the application, we affirm.
Defendant was indicted on narcotics and weapons offenses. His trial counsel filed a suppression motion and prior to the hearing on the motion, defense counsel wrote a letter to defendant confirming that defendant was rejecting a plea offer, which, if accepted, would result in a recommendation for a noncustodial sentence. After the court denied the suppression motion, the State extended a new plea offer that called for probation, conditioned upon 364 days in the county jail. In exchange, defendant would plead guilty to two counts in the indictment, possession of controlled dangerous substances with the intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11) (count two), and unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (count three), and the State would dismiss the remaining charges. Defendant accepted the plea offer and pled guilty to counts two and three of the indictment.
Defendant was sentenced in accordance with the plea agreement. He appealed the denial of his suppression motion, which we upheld in an unpublished opinion. State v. Barr, No. A-0425-08 (App. Div. Feb. 16, 2010). The Supreme Court subsequently denied his petition for certification. State v. Barr, 202 N.J. 45 (2010).
Defendant filed a petition for PCR based primarily on claims of ineffective assistance of counsel. Defendant claimed:
(1) he repeatedly advised defense counsel that he was innocent of the possession of marijuana with intent to distribute charge;
(2) defense counsel failed to raise certain issues in support of the suppression motion and repeatedly tried to get him to accept the plea offer; and (3) after the suppression motion was denied, defense counsel told him that he would not take his case to trial. Defendant additionally claimed that trial counsel misled him as to the length of the probationary sentence he would serve.
After hearing argument by assigned counsel, the PCR judge issued a comprehensive oral opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. State v. Preciose, 129 N.J. 451, 462–64 (1992). The judge, referencing the plea hearing, was satisfied defendant failed to establish that his "decision to plead guilty was anything less than a product of his own free will." Likewise, reviewing the record of the suppression hearing, the judge found nothing deficient in trial counsel's performance. Thus, the judge found no basis to conduct an evidentiary hearing and dismissed the petition.
On appeal, defendant presents the following argument:
THE DEFENDANT SHOULD HAVE RECEIVED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF PLEA COUNSEL BASED ON COUNSEL'S REFUSAL TO BRING THE DEFENDANT'S CASE TO TRIAL AND FAILING TO ADVISE THE DEFENDANT ABOUT HIS RIGHT TO A TRIAL.
We reject the arguments advanced in this point and affirm the denial of defendant's petition substantially for the reasons set forth by Judge Alan Rockoff, retired and on recall, in his cogent and comprehensive oral opinion of August 12, 2011.