State of New Jersey v. Ali Berger

• Court: New Jersey Superior Court Appellate Division
• Decided: November 17, 2023
• Docket: A-3100-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3100-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALI BERGER,

Defendant-Appellant. _______________________

Submitted October 24, 2023 – Decided November 17, 2023

Before Judges Rose and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-06- 1857.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief).

Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for respondent (Braden Bendon Couch, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Ali Berger appeals from a May 3, 2022 Law Division order

which denied his petition for post-conviction relief (PCR) without an

evidentiary hearing. Defendant argues a remand for an evidentiary hearing is

warranted because he made a prima facie showing of ineffective assistance of

counsel. We affirm.

On November 17, 2017, defendant had a disagreement with Shakeem

Bernard in Newark. Defendant had in his possession a loaded handgun which

he intentionally fired at Bernard. Bernard sustained a gunshot wound and

passed away from his injury. Defendant fled the scene driving in a vehicle

with his brother, Daquan Berger, and a friend, Wajeirah Wilson, as passengers.

Newark police officers responded to the area and pursued the vehicle. While

attempting to elude the police, defendant crashed into another vehicle, injuring

the driver. Defendant was arrested and later admitted he was under the

influence of alcohol at the time.

In 2018, a grand jury indicted defendant on the following charges: first -

degree conspiracy to commit murder, N.J.S.A. 2C:5-2, :11-3(a)(1) to (2)

(count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2) (count two);

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count

three); second-degree possession of a weapon for an unlawful purpose,

A-3100-21 2 N.J.S.A. 2C:39-4(a) (count four); second-degree eluding, N.J.S.A. 2C:29-2(b)

(count five); second-degree aggravated assault by eluding, N.J.S.A. 2C:12-

1(b)(6) (count six); third-degree possession of a controlled dangerous

substance, N.J.S.A. 2C:35-10(a) (count seven); and third-degree possession of

a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35 -

5(a)(1), (b)(3) (count eight).

In September 2019, the State and defendant entered a negotiated plea

agreement. Defendant pleaded guilty to count two of the indictment, amended

to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and count six

as charged. The State agreed to recommend eighteen years in prison on count

two, subject to the No Early Release Act's (NERA), N.J.S.A. 2C:43-7.2,

eighty-five percent period of parole ineligibility, and eight years in prison on

count six, also subject to NERA, to be served concurrently. Defendant, in

accordance with the plea agreement, agreed to exculpate co-defendants, his

brother and Wilson. In exchange, the State recommended dismissal of all

remaining counts.

In December 2019, the trial court sentenced defendant. Plea counsel

argued for a reduced sentence of "[fifteen]-year[s] New Jersey State Prison"

"on the aggravated manslaughter" and requested that it "run concurrent[ly] to

A-3100-21 3 count-[six]" for five-years' imprisonment subject to NERA. Plea counsel

further argued for the application of mitigating factors: nine, N.J.S.A. 2C:44-

1(b)(9), "character and attitude of the defendant indicate that the defendant is

unlikely to commit another offense," and eleven, N.J.S.A. 2C:44-1(b)(11),

"imprisonment of the defendant would entail excessive hardship to the

defendant or the defendant's dependents." Plea counsel argued under

mitigating factor nine that defendant was planning on becoming "gainfully

employed" and was committed to being a "productive member of society."

Under mitigating factor eleven, plea counsel argued defendant "was actively

involved in [his] child's life." Additionally, plea counsel argued the court

should consider defendant's young age of twenty-eight, and that defendant

showed "sympathy toward the family" and "remorse."

The State argued for a sentence in accordance with the plea agreement.

The State submitted that the court should find aggravating factors: three,

N.J.S.A. 2C:44-1(a)(3), "risk that the defendant will commit another offense,"

six, N.J.S.A. 2C:44-1(a)(6), "extent of the defendant's prior criminal record

and the seriousness of the offenses of which the defendant has been

convicted," and nine, N.J.S.A. 2C:44-1(a)(9), "need for deterring the defendant

and others from violating the law." The State argued defendant's criminal

A-3100-21 4 history, including four indictable convictions, should be weighed heavily by

the court.

The judge found no mitigating factors but found aggravating factors

three and nine. Defendant was sentenced in accordance with the plea

agreement to eighteen years imprisonment subject to NERA on count two, and

eight years subject to NERA on count six, imposed concurrently to count two.

Defendant did not appeal from his convictions or sentence.

On November 24, 2020, defendant filed a self-represented petition for

PCR, asserting he was denied the right to effective assistance of counsel under

the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution

and Article 1, Paragraph 10 of the New Jersey Constitution. Thereafter,

assigned counsel filed a supplemental brief, asserting: the judge erred in the

analysis of the aggravating and mitigating factors; plea counsel rendered

ineffective assistance at the sentencing hearing in violation of defendant's

rights under the New Jersey and United States Constitutions; "the cumulative

effect of all the errors" deprived defendant of "his constitutional right to a fair

hearing"; an evidentiary hearing was warranted; and defendant's PCR petition

was timely filed.

A-3100-21 5 The PCR judge, who also presided over the trial court proceedings,

denied PCR without a hearing. The judge found defendant's PCR petition was

timely filed and not procedurally barred under Rule 3:22-12. However, the

judge "decline[d] to entertain [defendant's] allegations of ineffective assistance

of [plea] counsel" as they were "cursory and lack[ed] merit" and "the

arguments asserted by [defendant] [we]re directly contravened by the record."

This appeal followed.

On appeal, defendant argues plea counsel failed to seek mitigating

factors: four, N.J.S.A. 2C:44-1(b)(4), "[t]here were substantial grounds

tending to excuse or justify the defendant's conduct, though failing to establish

a defense"; eight, N.J.S.A. 2C:44-1(b)(8), "defendant's conduct was the result

of circumstances unlikely to recur"; and twelve, N.J.S.A. 2C:44-1(b)(12),

"willingness of the defendant to cooperate with law enforcement authorities."

Defendant contends plea counsel inadequately argued for the application of

mitigating factors nine and eleven, and failed to argue against aggravating

factors three and nine, which the court found. Defendant argues in a single

point:

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT [PLEA] COUNSEL RENDERED INEFFECTIVE

A-3100-21 6 ASSISTANCE BY FAILING TO ADVOCATE ADEQUATELY AT SENTENCING.

In the absence of an evidentiary hearing, we review de novo the factual

inferences drawn from the record by the PCR judge as well as the judge's legal

conclusions. State v. Aburoumi, 464 N.J. Super. 326, 338-39 (App. Div.

2020). We review a PCR judge's decision to deny a defendant's request for an

evidentiary hearing under an abuse of discretion standard. See State v. L.G.-

M., 462 N.J. Super. 357, 365 (App. Div. 2020).

A petitioner must establish entitlement to "PCR by a preponderance of

the evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014).

Additionally, a petitioner is not automatically entitled to an evidentiary

hearing by simply raising a PCR claim. State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999).

To succeed on a claim of ineffective assistance of counsel, a defendant

must satisfy both prongs of the test set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984), as adopted by State v. Fritz, 105 N.J. 42, 58 (1987), by a

preponderance of the evidence. "First, the defendant must show that counsel's

performance was deficient." Strickland, 466 U.S. at 687. This requires

demonstrating that "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

A-3100-21 7 Amendment." Ibid. The United States Constitution requires "reasonably

effective assistance." Ibid. An attorney's performance will not be deemed

deficient if counsel acted "within the range of competence demanded of

attorneys in criminal cases." Ibid. (quoting McMann v. Richardson, 397 U.S.

759, 771 (1970)). Therefore, "[w]hen a convicted defendant complains of the

ineffectiveness of counsel's assistance, the defendant must show that counsel's

representation fell below an objective standard of reasonableness." Id. at 687-

88.

When assessing the first Strickland prong, "[j]udicial scrutiny of

counsel's performance must be highly deferential," and "every effort [must] be

made to eliminate the distorting effects of hindsight." Id. at 689. "Merely

because a trial strategy fails does not mean that counsel was ineffective."

State v. Bey, 161 N.J. 233, 251 (1999). Thus, a trial court "must indulge a

strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance," and "the defendant must overcome the

presumption that, under the circumstances, the challenged action [by counsel]

'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Further, the court

must not focus on the defendant's dissatisfaction with counsel's "exercise of

A-3100-21 8 judgment during the trial . . . . while ignoring the totality of counsel's

performance in the context of the State's evidence of [the] defendant's guilt."

State v. Castagna, 187 N.J. 293, 314 (2006).

Under the second prong of the Strickland test, the defendant must show

"the deficient performance prejudiced the defense." 466 U.S. at 687. This

means "counsel's errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable." Ibid. It is insufficient for the defendant

to show the errors "had some conceivable effect on the outcome." Id. at 693.

Ultimately, "[a]n error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of a criminal proceeding if [it] had no

effect on the judgment." Id. at 691.

We conclude an evidentiary hearing was not warranted because, as the

PCR judge found, the sentencing record dispelled defendant's argument that

plea "counsel rendered ineffective assistance by failing to advocate adequately

at sentencing." Judge Siobhan A. Teare, in her cogent written decision, clearly

reviewed "the entire colloquy set forth by [plea] counsel during sentencing,"

and rendered specific findings after evaluating plea counsel's sentencing

arguments. The judge noted plea counsel had "reviewed the presentence

report," argued for "additional jail credits," and argued in favor of "mitigating

A-3100-21 9 factors." The judge recited the foundation given by plea counsel for the

mitigating factors argued, along with the request for a lesser sentence.

Further, regarding the second Strickland prong, she correctly determined

defendant was sentenced in accordance with "the sentence that he negotiated."

In finding an evidentiary hearing was not necessary, Judge Teare noted

defendant's arguments were "directly contravened" and she could "analyze

[the] facts which [we]re clearly established on the record." We agree.

Pursuant to Rule 3:22-10(b), a defendant is entitled to an evidentiary hearing

when there is a showing of: "a prima facie case in support of [PCR], a

determination by the court that there are material issues of disputed fact that

cannot be resolved by reference to the existing record, and a determination that

an evidentiary hearing is necessary to resolve the claims for relief." Therefore,

there is no automatic entitlement to an evidentiary hearing. State v. Porter,

216 N.J. 343, 355 (2013); see also State v. Peoples, 446 N.J. Super. 245, 254

(App. Div. 2016) (holding "[t]he mere raising of a claim of [ineffective

assistance of counsel] does not entitle the defendant to an evidentiary

hearing"). Defendant has not set forth a "material issue[]" in dispute as to

counsel's ineffective assistance in failing to further address the aggravating and

mitigating factors based on the record. See R. 3:22-10(b).

A-3100-21 10 Judge Teare correctly found the "conclusory allegations" that counsel

failed to argue as to certain factors were insufficient in the context of the

record and the parties' negotiated plea agreement. Unlike the defense counsel

in State v. Hess, 207 N.J. 123, 154 (2011), plea counsel did not "fail[] to

present mitigating evidence or argue for mitigating favors." Judge Teare

further found defendant failed to demonstrate "unprofessional behavior which

resulted in a changed outcome at trial." A defendant must show by a

"reasonable probability" that a deficient performance affected the outcome.

Fritz, 105 N.J. at 58.

We conclude a review of defendant's arguments in light of the

sentencing record demonstrates defendant failed to make a prima facie

showing of ineffective assistance of counsel. Accordingly, the PCR judge did

not abuse her discretion by resolving the petition on the existing record,

denying the petition without an evidentiary hearing, and finding defendant

failed to demonstrate ineffective assistance of counsel.

Affirmed.

A-3100-21 11