State of New Jersey v. Mitchell A. Delacruz

• Court: New Jersey Superior Court Appellate Division
• Decided: April 17, 2025
• Docket: A-2642-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2642-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MITCHELL A. DELACRUZ, a/k/a DELA, and ARKINSON MITCHELL,

Defendant-Appellant. __________________________

Argued April 1, 2025 – Decided April 17, 2025

Before Judges Gilson and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17-03-0515.

Monique Moyse, Designated Counsel, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Monique Moyse, on the brief).

Deepa S. Y. Jacobs, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Deepa S. Y. Jacobs, of counsel and on the brief). PER CURIAM

Defendant Mitchell Delacruz appeals from a March 17, 2023 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. Defendant argues his trial counsel was ineffective for failing to

properly advise him about his cooperation agreement, conduct an adequate

investigation, review discovery with him, discuss the case, and file a motion to

suppress evidence. He asserts that that ineffective assistance caused him to

plead guilty to drug charges. Defendant also contends his trial counsel was

ineffective for failing to argue for a lower sentence under the Gerns1 cooperation

agreement. Having conducted a de novo review, we affirm.

I.

On August 18, 2016, members of the Tennessee Drug Enforcement

Administration (DEA) 23rd Judicial Drug Task Force (JDTF) conducted an

investigation in Tennessee. The investigation revealed a 1995 Ford tractor -

trailer associated with a Florida corporation was transporting a black BMW M4

bearing an Arizona registration, which was being shipped to the Hasbrouck

1 State v. Gerns, 145 N.J. 216, 227-28 (1996) (holding that defendant's cooperation must provide substantial benefit to the State in order to justify waiver in whole or in part of mandatory parole ineligibility for certain drug offenses). A-2642-22 2 Heights Hilton (Hilton). The BMW was registered to defendant out of Tempe,

Arizona. A search of the BMW in Tennessee had yielded three kilograms of

suspected cocaine.

JDTF members contacted Task Force Officer John Dalton of the DEA,

New Jersey Division about the investigation and destination of the BMW. In

response, Dalton contacted Detective Michael Perez of the Bergen County

Prosecutor's Office, Narcotics Task Force (BCPO) for assistance. A controlled

delivery of the BMW at the Hilton was planned. Law enforcement sought to

identify additional drug co-conspirators and locations in New Jersey. In

preparation for the controlled delivery, Dalton and Perez met with Special Agent

James Mann in Tennessee. Perez took possession of the three suspected

kilograms of cocaine seized from defendant's BMW, replaced it with three

kilograms of simulated cocaine, and placed the BMW back into transport on the

tractor-trailer to New Jersey.

On August 19, 2016, BCPO and DEA detectives were advised the BMW

was being shipped to defendant as the receiver at the Hilton. Defendant drove

up to the Hilton in a gray Honda Accord, which was registered to Jose N. Rivera-

Nunez in Cliffside Park. Defendant signed a receipt with the tractor-trailer

driver for his BMW, drove it to the Hilton's parking lot, opened the trunk,

A-2642-22 3 inspected the interior panels of the trunk, and left the BMW unattended.

Defendant was driven away in the Honda Accord.

Following mobile surveillance, DEA and BCPO detectives conducted an

investigative motor vehicle stop of the Honda Accord in Hackensack. Defendant

and his nephew Jose Delacruz were in the vehicle at the time. Detectives

observed a green handbag containing a large sum of money on the rear passenger

seat floor. Defendant was provided with a BCPO consent to search vehicle form

in Spanish and gave his consent to search the Honda Accord, as well as his

BMW. Defendant and Jose Delacruz were read their Miranda2 rights, waived

their right to have an attorney present during questioning, and agreed to

cooperate with law enforcement.

Defendant was arrested for possession with intent to distribute cocaine.

Jose Delacruz told the detectives that defendant was visiting from Arizona to

film a music video and wanted to store money and a bag in Delacruz's apartment

safe in Lodi while visiting for safekeeping, which Delacruz agreed to allow.

Jose Delacruz consented to a search of his apartment, which led to a large sum

of money and suspected heroin being found in his safe.

2 Miranda v. Arizona, 364 U.S. 436 (1966). A-2642-22 4 Defendant was transported to BCPO headquarters in Paramus for

questioning. Defendant stated he had flown from Phoenix, Arizona and had

placed his BMW on the tractor-trailer to be used in a music video in New Jersey.

Defendant acknowledged that "a narcotics connection" in Phoenix had placed

the three kilograms of cocaine in the BMW trunk and that he received the

cocaine "on consignment."

Defendant explained that he was going to meet "Coride," a contact in

Paterson, and sell three kilograms of cocaine in exchange for $90,000.

Defendant stated that he would have to pay $85,000 to his connection in

Phoenix, thus receiving $5,000 for his involvement. Defendant did not disclose

the names of his narcotics contacts in Phoenix or Paterson.

Defendant also admitted that the heroin found in his nephew's safe was

given to defendant by "Coride" to hold while they were in the process of

receiving the kilograms of cocaine. Defendant claimed that his nephew was not

involved in the drug distribution scheme. Testing confirmed the quantity of

heroin recovered from the safe was approximately twelve ounces.

Thereafter, defendant was indicted for five crimes: first-degree

possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(l) and

(b)(l) (count one); third-degree possession of heroin, N.J.S.A. 2C:35-l0(a)(l)

A-2642-22 5 (count two), second-degree conspiring to possess cocaine with intent to

distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), and (b)(1) (count three);

second-degree attempted possession of cocaine with intent to distribute,

N.J.S.A. 2C:5-1, N.J.S.A. 2C:35-5(a)(l), and (b)(1) (count four); and third-

degree money laundering, N.J.S.A. 2C:21-25 (count five).

On June 1, 2017, defendant entered into a cooperation witness agreement,

under Gerns in which he agreed to plead guilty to count one in exchange for an

eighteen-year term of imprisonment, subject to fifty-four months parole

ineligibility under the Brimage3 guidelines, with the possibility of a lower

sentence if he cooperated with law enforcement. On August 7, 2017, defendant

pled guilty to count one with the sentencing recommendation as stated.

Thereafter, defendant failed to cooperate with law enforcement and did

not appear for sentencing. A bench warrant issued, and he was arrested out-of-

state and extradited back to New Jersey. On November 30, 2018, defendant was

sentenced in accordance with the plea agreement. The four other counts of the

indictment were dismissed.

3 State v. Brimage, 153 N.J. 1, 23 (1998) (holding that prosecutors must follow certain guidelines when offering plea agreements under N.J.S.A. 2C:35-12 that waive the mandatory minimum sentence specified for an offense under the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to 36A-1). A-2642-22 6 Defendant filed a direct appeal contending his sentence was excessive.

On September 23, 2020, we heard the matter on the Sentencing Oral Argument

(SOA) calendar under Rule 2:9-11. We remanded the matter to the trial court

for reconsideration and recalculation of the Brimage guidelines under N.J.S.A.

2C:35-12 and permitted defendant to argue for additional jail credits on remand.

On June 8, 2021, the sentencing court—also the PCR court—reduced

defendant's Brimage sentence to thirty-six months and maintained the original

eighteen-year term of imprisonment. On October 27, 2021, this court affirmed

the sentencing court's decision on the SOA calendar. On March 16, 2022,

defendant filed a pro se PCR petition. PCR counsel was appointed and filed a

brief.

On February 7, 2023, the PCR court conducted oral argument on

defendant's PCR petition. On March 17, 2023, the PCR court entered an order

denying the petition without an evidentiary hearing and issued a written opinion

explaining its reasons for rejecting defendant's petition.

The PCR court found that defendant failed to establish a prima facie case

of ineffective assistance of trial counsel. The PCR court determined that

defendant failed to demonstrate that his trial counsel's performance was

"defective." The PCR court rejected defendant's claim that trial counsel was

A-2642-22 7 ineffective for not filing a motion to suppress evidence and statements because

during his plea allocution, defendant voluntarily gave up those rights. The PCR

court also rejected defendant's claim that he "was pressured" into pleading guilty

because he did not provide the PCR court with the necessary "facts outside the

trial record" to support his argument. The PCR court determined defendant was

aware of discovery and the State's proofs implicating him in the crime to which

he pled guilty. Further, the PCR court emphasized defendant's "bald assertions"

were not supported by the record and defendant never objected to his trial

counsel "securing the best plea deal for him."

Defendant now appeals from the order denying his petition and presents

the following sole argument for our consideration:

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL PRETRIAL, THEREBY CAUSING HIM TO PLEAD GUILTY AND EXPOSING HIM TO A HIGHER THAN NECESSARY TERM WHEN HE OTHERWISE WOULD HAVE PROCEEDED TO TRIAL.

II.

When a PCR court does not conduct an evidentiary hearing, appellate

courts review the denial of a PCR petition de novo. State v. Harris, 181 N.J.

391, 420-21 (2004); State v. Lawrence, 463 N.J. Super. 518, 522 (App. Div.

A-2642-22 8 2020). The PCR court's decision to proceed without an evidentiary hearing is

reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623

(App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.

2013)).

To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-prong Strickland test: (1) "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment," and (2) "the deficient performance prejudiced the defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,

58 (1987) (adopting the Strickland two-prong test in New Jersey). Under prong

one, a defendant must establish that "counsel's representation fell below an

objective standard of reasonableness." Strickland, 466 U.S. at 688. Under prong

two, a defendant must demonstrate "a reasonable probability that, but for

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

different." Id. at 694.

A petitioner is not automatically entitled to an evidentiary hearing merely

by filing for PCR. State v. Porter, 216 N.J. 343, 355 (2013); State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999). Rule 3:22-10(b) provides that a

defendant is entitled to an evidentiary hearing on a PCR petition only if: (1) he

A-2642-22 9 or she establishes "a prima facie case in support of [PCR]," (2) "there are

material issues of disputed fact that cannot be resolved by reference to the

existing record," and (3) "an evidentiary hearing is necessary to resolve the

claims for relief." Porter, 216 N.J. at 354 (alteration in original).

In making that showing, a defendant must "demonstrate a reasonable

likelihood that his or her claim will ultimately succeed on the merits." State v.

Marshall, 148 N.J. 89, 158 (1997); see also R. 3:22-10(b). Thus, to obtain an

evidentiary hearing on a PCR petition based on claims of ineffective assistance

of counsel, a defendant must make a showing of both deficient performance and

actual prejudice. State v. Preciose, 129 N.J. 451, 463-64 (1992).

Having conducted a de novo review, we agree with the PCR court's

rejection of all of defendant's arguments. In short, defendant did not establish

that his trial counsel was ineffective. Moreover, defendant did not establish any

prejudice under prong two of the Strickland test. In that regard, we add the

following comments.

Here, the record belies defendant's arguments. In fact, defendant's plea

allocution makes clear the State's efforts to seek his cooperation in light of

defendant's awareness of the discovery and evidence against him implicating

him in the crimes. When defendant pled guilty, he testified that he knowingly

A-2642-22 10 and voluntarily entered into the plea agreement and voluntarily gave up his

rights. Moreover, at his plea allocution, defendant did not dispute he signed two

consent to search forms—one for the BMW and the other for the Honda

Accord—and that he gave recorded statements to law enforcement admitting to

possession of heroin in his nephew's safe and describing his drug distribution

activities. Defendant also testified that his trial counsel answered all of his

questions and that he was satisfied with his representation.

The record shows that defendant understood his guilty plea was based on

the Gerns cooperation agreement and that he could receive "a substantially lesser

sentence" if he had been compliant. Instead, defendant absconded and failed to

appear for sentencing, further evidencing his "complete understanding" of the

consequences of the plea agreement.

Having reviewed the record, we conclude, as did the PCR court, that

defendant's various claims of ineffective assistance of counsel do not meet either

the performance or prejudice prong of the Strickland/Fritz test. To the extent

we have not expressly addressed any arguments made in support of defendant's

appeal, we have determined they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-2642-22 11