STATE OF NEW JERSEY v. DYLAN E. BARBIERI (13-06-0576, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 25, 2022
• Docket: A-4413-19
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4413-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DYLAN E. BARBIERI,

Defendant-Appellant. ________________________

Submitted February 8, 2022 – Decided March 25, 2022

Before Judges Currier and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Accusation No. 13-06- 0576.

Jill R. Cohen, attorney for appellant.

Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney for respondent (Steven J. Salvati, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from the denial of his post-conviction relief (PCR)

petition after a hearing, asserting he did not enter a knowing and voluntary guilty

plea, was not fully advised of the consequences of his guilty plea, and his

defense counsel did not review discovery prior to the plea. He also challenges

the PCR court's order quashing certain subpoenas. We affirm.

Defendant was charged in an accusation with second-degree robbery,

N.J.S.A. 2C:15-1(a)(1), after he attempted to leave a store with two thirty-two-

inch flat screen television sets without paying for them. At the time of

defendant's arrest he was homeless and unemployed. He had pending

shoplifting charges. He admitted to using five to six bags of heroin a day and

that he was under the influence of heroin at the time of these events.

Defendant applied and was accepted into the Recovery Court program. In

exchange for a guilty plea to the robbery charge, defendant was sentenced to

five years' probation in the Recovery Court program.

During the plea hearing, defendant stated that as he got "right outside the

front door," a store employee "[g]rabbed [him] by the arm and pulled [him] back

inside." Although defendant attempted to get away from the employee by

pulling away from him, defendant testified that the store employee "grabbed my

A-4413-19 2 jacket and I just kind of pulled off of it." Defendant conceded he used force to

pull away.

Defendant also advised the plea judge he understood his right to a grand

jury and jury, he was entering into the guilty plea voluntarily, he understood the

terms of the plea, and he had discussed the matter with counsel. Defendant also

stated he understood if he did not successfully complete the Recovery Court

program, he would be subject to an alternate sentence of three years in prison,

with an eighty-five percent parole disqualifier pursuant to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2.1 Defendant successfully completed the

Recovery Court program in November 2016.

In 2019, defendant filed a PCR petition asserting that he received

ineffective assistance of counsel because plea counsel did not review discovery

with him, resulting in defendant entering a guilty plea without a factual basis.

He also contended counsel was ineffective because he failed to adequately

explain the consequences of his plea, specifically that a second-degree robbery

conviction cannot be expunged, and counsel failed to obtain a more favorable

charge that would allow for expungement. Therefore, defendant asserted he did

not knowingly and voluntarily enter a guilty plea.

1 The alternate sentence was in the third-degree range. A-4413-19 3 After oral argument on the petition, the PCR court granted defendant an

evidentiary hearing. Thereafter, defendant served two subpoenas duces tecum

for prosecutors to appear and provide the State's files on seven cases unrelated

to defendant's guilty plea and for the State's file on defendant's case.

The State moved to quash the subpoenas. In granting the motion to quash,

the court found the subpoenas were "overbroad" and did not specify any

particular documents in the file that would support defendant's theory that trial

counsel was ineffective at the time of his plea. The PCR court also stated that

the production of the requested files "risk[ed] revealing information that is

protected by the State's work product privilege." In addition, the documents

were not relevant to the issues asserted by defendant in the PCR petition.

In a written opinion and accompanying order of June 26, 2020, the court

denied the PCR petition. In considering the claim that trial counsel failed to

review any discovery, the court found that counsel used his "reasonable

professional judgment to effectuate [d]efendant's two goals—getting out of jail

and getting in[to] treatment—faster than if [d]efendant had waited additional

months to proceed to trial." The court also noted there was no other plea offered

other than the second-degree robbery charge. And, the court stated, defendant

"failed to show that if plea counsel had acquired and reviewed this discovery

A-4413-19 4 with [d]efendant, there is a reasonable probability that the outcome would have

been different."

As for counsel's failure to obtain a plea agreement to a lesser degree

offense that would permit expungement of his record, the trial court found that

"[d]efense counsel's performance was not deficient for failing to secure a more

favorable charge over which plea counsel had no control and to which

[d]efendant was not entitled." Furthermore, the alternate sentence in the third-

degree range was favorable to defendant. Addressing the claim of ineffective

assistance for trial counsel's failure to explain any expungement consequences

of the guilty plea, the court stated, "[t]he fact that pleading guilty to second-

degree robbery precluded [d]efendant from seeking expungement is a non -

material collateral consequence." And defense counsel was not "ineffective for

[his] failure to advise [d]efendant of those [collateral] consequences." The PCR

court further found that defendant had not demonstrated "there [was] a

reasonable probability that, but for counsel's errors, [he] would not have pled

guilty and would have insisted on going to trial."

Defendant raises the following points for our consideration:

POINT I. THE PCR COURT FAILED TO ADDRESS WHETHER THE DEFENDANT ELICITED A FACTUAL BASIS AND ENTERED A[] KNOWING AND VOLUNTARY PLEA

A-4413-19 5 POINT II. THE PCR COURT ERRED IN FAILING TO ADDRESS WHETHER APPELLANT'S TRIAL COUNSEL'S ASSISTANCE [A]FFECTED THE OUTCOME OF THE CASE

POINT III. THE PCR COURT ERRED BY DENYING THE APPELLANT A FULL AND FAIR EVIDENTIARY HEARING BY PRECLUDING THE APPELLANT FROM CALLING WITNESSES AND BY QUASHING THE DEFENSE SUBPOENAS DUCES TECUM

In considering Point I, we are satisfied the PCR court did not err in finding

defendant's guilty plea to the robbery charge was supported by an adequate

factual basis. Defendant stated he used force while committing the theft of two

television sets. Defendant also gave a voluntary and knowing plea. He informed

the court: he understood his rights, he was giving up his right to a grand jury

and jury, he was not threatened or forced into entering a plea, and he had

sufficient time to discuss the waiver of his rights with counsel.

We turn next to the ineffective assistance of counsel claims. The standard

for determining whether counsel's performance was ineffective for purposes of

the Sixth Amendment to the United States Constitution was formulated in

Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42 (l987). To prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-prong test of establishing

A-4413-19 6 that: (l) counsel's performance was deficient and counsel made errors that were

so egregious that counsel was not functioning effectively as guaranteed by the

Sixth Amendment; and (2) the defect in performance prejudiced defendant's

right to a fair trial such that there exists a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 687, 694.

To establish a prima facie case of ineffective assistance of counsel, a

defendant must present legally competent evidence rather than "bald assertions."

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant has

not met that standard.

On appeal, defendant renews his ineffective assistance of counsel claims,

stating that defense counsel did not review discovery prior to the plea hearing,

counsel failed to procure a plea to a lesser degree offense, and counsel failed to

explain the consequences of pleading to a second-degree crime. We are

unpersuaded.

Defendant and his trial counsel testified during the PCR hearing.

Defendant agreed that counsel met with him several times during which they

discussed his options and the Recovery Court program. Counsel also explained

the charges defendant might face. Defendant stated that counsel told him the

A-4413-19 7 State's plea offer was a plea to second-degree robbery and he would be sentenced

to probation and Recovery Court.

Defendant testified that he pleaded guilty because "[he] wanted to" and

that counsel did not force him to enter a guilty plea. Defendant stated he pleaded

guilty to second-degree robbery to meet his goals of "get[ting] out of jail" and

having his "addiction addressed."

Defendant's counsel also testified during the PCR hearing, stating he

believed he was "competent," "prepared in answering the plea," and "diligently

represented [defendant] at [the] time." Counsel stated he used his "professional

judgment" and expertise with the Recovery Court program to "la[y] out the

options to the defendant" and help him get out of jail and into treatment—which

aligned with defendant's wishes. Counsel further said that the cost of going to

trial was too great, as it would likely result in defendant remaining in jail for up

to eight months—making defendant's recovery from his substance abuse

addiction less likely. Counsel admitted that he had not received discovery from

the State prior to the plea.

In determining effectiveness and reasonableness of counsel, a court must

provide defense counsel with a "strong presumption that [their] conduct falls

within a wide range of reasonable professional assistance." Strickland, 466 U.S.

A-4413-19 8 at 689. The reviewing court gives "a heavy measure of deference to counsel's

judgments." State v. Chew, 179 N.J. 186, 205 (2004) (quoting State v. Martini,

160 N.J. 248, 266 (1999) (citation omitted)).

Defendant has failed to show that counsel's performance was deficient to

the extent that he did not receive counsel guaranteed under the Sixth

Amendment. Trial counsel made strategic decisions and followed defendant's

wishes for admission into the Recovery Court program. This was a better result

than awaiting discovery and trial with a possible five to ten-year sentence

exposure subject to NERA. And pleading at an earlier stage of the proceedings

allowed defendant to begin treatment for his addiction sooner by entering a long-

term, in-patient facility.

Even if counsel's performance was deficient under prong one, defendant

still cannot meet his burden under the second Strickland-Fritz prong, as

defendant has not proven that counsel's deficiency affected the outcome of the

proceedings. Defendant has not stated he would not have pleaded guilty had

defense counsel reviewed discovery. As the PCR court stated, even if discovery

was provided, the State did not make any additional plea offers. Defendant has

not proffered any evidence demonstrating a "reasonable probability" that, but

A-4413-19 9 for defense counsel's failure to review discovery, defendant would have changed

his decision to plead guilty and insisted on going to trial.

We reach a similar result regarding defendant's argument that counsel was

ineffective for failing to plead down the second-degree robbery charge to a

lesser offense. The decision whether to extend a plea offer rests with the

prosecutor, not defense counsel. State v. Williams, 277 N.J. Super. 40, 46 (App.

Div. 1994). Defendant also produced no evidence that the prosecutor would

have downgraded the charge.

Next, defendant contends he was deprived of effective counsel because

defense counsel failed to advise defendant of the consequences of pleading

guilty to second-degree robbery, namely that it cannot be expunged.

Our Supreme Court has held that in discussing a plea offer, defense

counsel only needs to explain the direct or penal consequences of a guilty plea,

not all of the collateral consequences. State v. Bellamy, 178 N.J. 127, 134

(2003) (emphasis added) (quoting State v. Howard, 110 N.J. 113, 122 (1988)).

Direct and penal consequences are those which are so severe that fundamental

fairness requires a defendant be informed prior to entering a guilty plea; one

such direct and penal outcome that counsel must alert defendant of is the

consequence that defendant will be confined for the remainder of his or her life.

A-4413-19 10 Id. at 139-40. This court has recognized collateral consequences, including: loss

of employment, effect on immigration status, voting rights, possible license

suspension, and possible dishonorable discharge from the military. State v.

Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd o.b., 107 N.J. 603,

604 (1987).

Defense counsel was not deficient in his representation by failing to advise

defendant that his plea to second-degree robbery was not subject to

expungement. Whether a criminal record may be expunged does not rise to the

magnitude of an outcome such as life imprisonment, parole ineligibility, or the

restrictions of Megan's Law. See Bellamy, 178 N.J. at 139-40 (holding that

indefinite confinement requires defendant be informed of such prior to pleading

guilty); see also Howard, 110 N.J. at 125 (allowing plea withdrawal where

defendant was unaware of parole eligibility implications). Expungement

eligibility is not a direct or penal consequence of a guilty plea.

Defendant also has not shown that any information regarding

expungement of his record would have changed his decision to plead guilty.

During the PCR hearing, defendant stated if he had "known or been advised that

a conviction for robbery could never be expunged," he would have hesitated to

take the plea offer. However, he also testified that his goal was to avoid jail

A-4413-19 11 time and enter the Recovery Court program to receive treatment for his

addiction—goals he achieved by pleading guilty to second-degree robbery. As

previously stated, there was no other plea offer. Defendant has not satisfied his

burden under Strickland.

We turn to defendant's contention that the court erred in granting the

State's motion to quash certain subpoenas. After defense counsel and two

prosecutors testified at the PCR hearing, defendant issued the subpoenas for

eight case files from the prosecutor's office. Defendant proffered he needed his

own file to see if there was a transmittal sheet regarding the production of

discovery prior to the entry of defendant's guilty plea. Defendant sought

production of the other seven files to demonstrate that the State had, in the past,

downgraded second-degree robbery charges to a lesser, third-degree theft

charge.

The PCR court did not abuse its discretion in granting the State's motion

to quash. The eight case files defendant subpoenaed are not relevant to the

central issue in defendant's PCR petition—–whether defendant received

ineffective assistance of counsel and whether defendant entered into his guilty

plea knowingly and voluntarily.

A-4413-19 12 The requested files did not have "a tendency in reason to prove or disprove

any fact of consequence to the determination of the action." R. 401. With

respect to the seven files, whether other individuals may have received a down -

graded charge in a plea agreement does not prove whether defense counsel here

was ineffective. Each case has a different set of facts and circumstances and

stands on its own. In addition, defendant sought to compel the testimony of an

assistant prosecutor who was not the assistant prosecutor on defendant's case.

Any decisions she made regarding other defendants' plea agreements were not

relevant or probative as to whether defendant received ineffective assistance of

counsel or whether he entered into the plea knowingly and voluntarily.

The PCR court also did not err in granting the State's motion to quash the

subpoena for defendant's case file. Prior to the presentation of the subpoena, the

PCR court noted that the production of discovery prior to entering the guilty

plea, or lack thereof, did not bear on the issue of ineffective assistance of

counsel. We see no reason to disturb the court's discretionary ruling. See In re

Subpoena Duces Tecum on Custodian of Recs., Crim. Div. Manager, Morris

Cnty., 214 N.J. 147, 162-63 (2013).

Defendant did not present a prima facie case of ineffective assistance. The

PCR judge's determination was supported by sufficient credible evidence and

A-4413-19 13 was reached after a hearing during which defendant testified. We see no reason

to disturb the trial court's order denying defendant's PCR petition.

Affirmed.

A-4413-19 14