September 11, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RAMON QUEVEDO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1903.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Graves and Guadagno.
Defendant Ramon Quevedo appeals from a Law Division order dated August 30, 2011, denying his petition for post-conviction relief (PCR). We affirm.
In a four-count indictment, defendant was charged with third-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two); fourth-degree aggravated assault by spitting bodily fluid on a police officer, N.J.S.A. 2C:12-13 (count three); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a) (count four). Pursuant to a negotiated plea agreement, defendant pled guilty to count one. In exchange for the plea, the State agreed not to seek an extended term, to dismiss the remaining charges, and to recommend a five-year sentence with two-and-one-half years of parole ineligibility.
Defendant was forty-nine years old when he entered his guilty plea on April 16, 2009. After he was sworn, defendant testified that he had read the plea form and reviewed it with his attorney, and he was entering his plea voluntarily. Defendant also confirmed that he understood the consequences of his plea, and he provided a factual basis for the plea. In addition, when questioned by the court, defendant testified as follows:
Q. When did you decide to plead guilty?
A. Awhile back already.
Q. Based on the questions I've asked you and the answers you've given me do you still want to plead guilty?
A. Yes, I do.
Q. Why are you pleading guilty to assaulting that police officer?
A. Because I am guilty.
Q. Has [the attorney that] represented you during these proceedings, met with you, explained things to you and answered your questions?
A. Yes, he did.
Q. Are you satisfied with his services?
A. Yes, I am.
Q. Do you have any questions you would like to ask your attorney, the prosecutor or me before we conclude these proceedings?
A. No, I don't.
At sentencing on June 11, 2009, defense counsel stated that defendant had "a long-standing problem" with alcohol and drugs, and counsel argued that a long-term inpatient rehabilitation program was an "appropriate alternative" to a prison sentence. In addition, when the court asked defendant if there was anything he wanted to say, he replied, "I want to apologize to the officer for my way of acting. I know I have a big problem with alcohol and drugs and I do need help. I wish you could give me that help, sir, and I apologize."
After noting defendant's prior criminal history, which included twenty-nine arrests, nine indictable convictions, and seven disorderly persons convictions, the court sentenced defendant to a five-year prison term with two years of parole ineligibility. The judge imposed the parole ineligibility term pursuant to N.J.S.A. 2C:43-6(b), because he was "clearly convinced that the aggravating factors substantially outweigh[ed] any mitigating factors."
Defendant appealed and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. On July 27, 2010, we affirmed defendant's conviction and his sentence, and the Supreme Court denied defendant's petition for certification. State v. Quevedo, 205 N.J. 80 (2011).
On December 1, 2010, defendant filed a petition for PCR. Defendant alleged the charges against him "were fabricated and overstated" by the police, the plea agreement "was not fully explained" to him, and "he had no choice but to enter a wrongful plea." In a subsequent certification filed by his appointed counsel, defendant stated that when he was arrested, one of the police officers "used excessive force necessitating that I defend myself."
Following oral argument, the court rendered a written decision on August 30, 2011. The court noted in its decision that defendant's brother, Edward Sancho, contacted the police on June 8, 2008, because defendant "was intoxicated and threatening his mother as well as destroying the apartment's interior." After the police arrived on the scene, defendant refused to "calm down, " and when the police attempted to handcuff him, he "resisted and a tussle ensued." The court determined that defendant was not entitled to an evidentiary hearing on his PCR petition, because he did not present a prima facie case of ineffective assistance of counsel.
On appeal from the denial of his petition, defendant presents the following arguments:
DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLANT COUNSEL.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS.
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 therefore affirm with only the following comments.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz test. State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-part test, a defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. To set aside a guilty plea based on ineffective assistance of counsel, defendant must establish a reasonable probability that, but for counsel's errors, he would have rejected the plea and insisted on going to trial. State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996).
In the present matter, the PCR court concluded that defendant failed to meet both prongs of the Strickland/Fritz test, and the record fully supports that determination. Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge Alvaro L. Iglesias in his written decision on August 30, 2011. "Bald assertions" are insufficient to entitle a defendant to an evidentiary hearing on a PCR petition. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).