NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4103-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN A. MELEIKA,
Defendant-Appellant. _______________________
Submitted January 3, 2022 – Decided February 24, 2022
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-10-1343.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ednin D. Martinez, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Steven A. Meleika appeals from an order denying his post-
conviction relief (PCR) petition without an evidentiary hearing. He argues:
POINT I
BY NOT REPRESENTING DEFENDANT ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA COUNSEL WAS INEFFECTIVE AND DEPRIVED DEFENDANT OF HIS RIGHT TO COUNSEL AND A FAIR TRIAL. (Not Raised Below.)
POINT II
COUNSEL'S FAILURE TO RAISE THE VIOLATION OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS INEFFECTIVE ASSI[S]TANCE OF COUNSEL, AND VIOLATED HIS RIGHT TO COUNSEL AND A FAIR TRIAL.
We are unpersuaded by these arguments and affirm.
I
On April 29, 2015, defendant was arrested and jailed arising from a
drive-by shooting of a victim shot in the upper back, occurring three days earlier.
On October 8, defendant was indicted for twelve offenses, including allegations
of first-degree attempted murder, second-degree weapon (a handgun)
possession, and third-degree aggravated assault. Defendant's father was also
charged in the same indictment with third-degree hindering the apprehension of
another and fourth-degree obstruction of the administration of law.
A-4103-19 2 Seven months after being indicted, on May 16, 2016, defendant pled guilty
to fourth-degree pointing a weapon at another person. The plea agreement called
for the State's recommendation of an eighteen-month prison term with an
eighteen-month period of parole ineligibility as a Graves Act, N.J.S.A.
2C:43-6(c), offense and the dismissal of the remaining charges against him. In
addition, all charges against defendant's father were dismissed.
On December 16, defendant appeared for sentencing. Against his trial
counsel's advice, he moved to withdraw his guilty plea. Counsel informed the
court that because defendant disagreed with the application, he wanted to
represent himself. Defendant was allowed to argue the motion, which the court
denied. The court then imposed a sentence in accordance with the State's
recommendation and granted defendant 597 days of jail credits. Defendant did
not file a direct appeal.
On August 19, 2019, defendant, who was no longer confined, filed a pro
se petition for post-conviction relief alleging trial counsel was ineffective for:
(1) not moving to withdraw his "invalid" guilty plea because he possessed an
antique firearm which did not constitute a weapon; and (2) not moving to dismiss
the charges against him because he was not afforded a speedy trial. Defendant's
assigned PCR counsel submitted a brief and amended the petition by having
A-4103-19 3 defendant assert that he "did not possess a[n operable] weapon" and "did not
point this weapon at anyone."
After hearing the parties' arguments, the PCR judge entered an order and
issued a decision from the bench denying relief without an evidentiary hearing.
Applying the well-known two-prong test to establish ineffectiveness of counsel,
Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v. Fritz, 105 N.J.
42, 58 (1987), the judge found there was no prima facie claim that: (1) trial
counsel's performance was deficient and (2) the performance prejudiced the
defense.
II
In Point I, defendant argues that trial counsel was ineffective because
counsel failed to represent him on his motion to withdraw his guilty plea. Since
this argument was not raised before the PCR judge and does not "go to the
jurisdiction of the trial court or concern matters of great public interest ," we
would normally decline to consider it. State v. Marroccelli, 448 N.J. Super. 349,
373 (App. Div. 2017) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)).
Nevertheless, we will consider the argument.
Defendant, without citing any case law, argued that his guilty plea should
be withdrawn
A-4103-19 4 because I lied. I did not point a firearm at anybody, and . . . I was told by my [plea] attorney [1] . . . to say that just so I can go home. To lie and to say that so I could go home. So, that's why I said that. But it's not true. I did not point — there is no proof.
As noted, the court denied the motion. Considering the four-prong test set forth
in State v. Slater, 198 N.J. 145, 157-58 (2009), the court, which took defendant's
plea, reasoned the motion was without merit based on his plea colloquy's
unequivocal admission of the offense, the absence of any new evidence
supporting his innocence, the strength of the State's case against him; the plea
negotiations, and the prejudice to the State in seeking to re-prosecute an incident
that occurred almost two years earlier. The court also commented that defendant
"indicated . . . he would not plead guilty unless . . . the charges against his father
were dismissed."
Defendant's argument that trial counsel was ineffective for not presenting
or arguing his motion to withdraw his guilty plea fails, as he has not shown the
motion would have been granted had counsel filed and argued it. There is no
ineffective assistance of counsel for not filing a motion, or in this case, for not
1 Defendant was represented at sentencing by a different attorney than the attorney who represented him at his plea hearing. A-4103-19 5 arguing a motion that is without merit. See State v. O'Neal, 190 N.J. 601, 618-19
(2007); State v. Worlock, 117 N.J. 596, 625 (1990).
Indeed, we have no qualm with the court's denial of the motion. "[I]n
evaluating motions to withdraw a guilty plea," a trial court must "consider and
balance": "(1) whether the defendant has asserted a colorable claim of
innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused." Slater, 198
N.J. at 157-58. The court did so, properly concluding there was no basis to grant
relief. Defendant's bald assertion that "I did not point this weapon at anyone,"
is insufficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999) (holding a defendant "must assert the facts that an investigation would
have revealed, supported by affidavits or certifications based upon the personal
knowledge of the affiant or the person making the certification." (citing R.
1:6-6)). There was no evidence provided beyond his claim that the gun was
inoperable.
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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-4103-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN A. MELEIKA,
Defendant-Appellant. _______________________
Submitted January 3, 2022 – Decided February 24, 2022
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-10-1343.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ednin D. Martinez, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Steven A. Meleika appeals from an order denying his post-
conviction relief (PCR) petition without an evidentiary hearing. He argues:
POINT I
BY NOT REPRESENTING DEFENDANT ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA COUNSEL WAS INEFFECTIVE AND DEPRIVED DEFENDANT OF HIS RIGHT TO COUNSEL AND A FAIR TRIAL. (Not Raised Below.)
POINT II
COUNSEL'S FAILURE TO RAISE THE VIOLATION OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL WAS INEFFECTIVE ASSI[S]TANCE OF COUNSEL, AND VIOLATED HIS RIGHT TO COUNSEL AND A FAIR TRIAL.
We are unpersuaded by these arguments and affirm.
I
On April 29, 2015, defendant was arrested and jailed arising from a
drive-by shooting of a victim shot in the upper back, occurring three days earlier.
On October 8, defendant was indicted for twelve offenses, including allegations
of first-degree attempted murder, second-degree weapon (a handgun)
possession, and third-degree aggravated assault. Defendant's father was also
charged in the same indictment with third-degree hindering the apprehension of
another and fourth-degree obstruction of the administration of law.
A-4103-19 2 Seven months after being indicted, on May 16, 2016, defendant pled guilty
to fourth-degree pointing a weapon at another person. The plea agreement called
for the State's recommendation of an eighteen-month prison term with an
eighteen-month period of parole ineligibility as a Graves Act, N.J.S.A.
2C:43-6(c), offense and the dismissal of the remaining charges against him. In
addition, all charges against defendant's father were dismissed.
On December 16, defendant appeared for sentencing. Against his trial
counsel's advice, he moved to withdraw his guilty plea. Counsel informed the
court that because defendant disagreed with the application, he wanted to
represent himself. Defendant was allowed to argue the motion, which the court
denied. The court then imposed a sentence in accordance with the State's
recommendation and granted defendant 597 days of jail credits. Defendant did
not file a direct appeal.
On August 19, 2019, defendant, who was no longer confined, filed a pro
se petition for post-conviction relief alleging trial counsel was ineffective for:
(1) not moving to withdraw his "invalid" guilty plea because he possessed an
antique firearm which did not constitute a weapon; and (2) not moving to dismiss
the charges against him because he was not afforded a speedy trial. Defendant's
assigned PCR counsel submitted a brief and amended the petition by having
A-4103-19 3 defendant assert that he "did not possess a[n operable] weapon" and "did not
point this weapon at anyone."
After hearing the parties' arguments, the PCR judge entered an order and
issued a decision from the bench denying relief without an evidentiary hearing.
Applying the well-known two-prong test to establish ineffectiveness of counsel,
Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v. Fritz, 105 N.J.
42, 58 (1987), the judge found there was no prima facie claim that: (1) trial
counsel's performance was deficient and (2) the performance prejudiced the
defense.
II
In Point I, defendant argues that trial counsel was ineffective because
counsel failed to represent him on his motion to withdraw his guilty plea. Since
this argument was not raised before the PCR judge and does not "go to the
jurisdiction of the trial court or concern matters of great public interest ," we
would normally decline to consider it. State v. Marroccelli, 448 N.J. Super. 349,
373 (App. Div. 2017) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)).
Nevertheless, we will consider the argument.
Defendant, without citing any case law, argued that his guilty plea should
be withdrawn
A-4103-19 4 because I lied. I did not point a firearm at anybody, and . . . I was told by my [plea] attorney [1] . . . to say that just so I can go home. To lie and to say that so I could go home. So, that's why I said that. But it's not true. I did not point — there is no proof.
As noted, the court denied the motion. Considering the four-prong test set forth
in State v. Slater, 198 N.J. 145, 157-58 (2009), the court, which took defendant's
plea, reasoned the motion was without merit based on his plea colloquy's
unequivocal admission of the offense, the absence of any new evidence
supporting his innocence, the strength of the State's case against him; the plea
negotiations, and the prejudice to the State in seeking to re-prosecute an incident
that occurred almost two years earlier. The court also commented that defendant
"indicated . . . he would not plead guilty unless . . . the charges against his father
were dismissed."
Defendant's argument that trial counsel was ineffective for not presenting
or arguing his motion to withdraw his guilty plea fails, as he has not shown the
motion would have been granted had counsel filed and argued it. There is no
ineffective assistance of counsel for not filing a motion, or in this case, for not
1 Defendant was represented at sentencing by a different attorney than the attorney who represented him at his plea hearing. A-4103-19 5 arguing a motion that is without merit. See State v. O'Neal, 190 N.J. 601, 618-19
(2007); State v. Worlock, 117 N.J. 596, 625 (1990).
Indeed, we have no qualm with the court's denial of the motion. "[I]n
evaluating motions to withdraw a guilty plea," a trial court must "consider and
balance": "(1) whether the defendant has asserted a colorable claim of
innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused." Slater, 198
N.J. at 157-58. The court did so, properly concluding there was no basis to grant
relief. Defendant's bald assertion that "I did not point this weapon at anyone,"
is insufficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999) (holding a defendant "must assert the facts that an investigation would
have revealed, supported by affidavits or certifications based upon the personal
knowledge of the affiant or the person making the certification." (citing R.
1:6-6)). There was no evidence provided beyond his claim that the gun was
inoperable. Moreover, in his PCR proceeding, defendant failed to present any
evidence or persuasive argument that had he been represented at the motion
hearing, the outcome would have been in his favor.
A-4103-19 6 III
In Point II, defendant argues trial counsel was ineffective because she
failed to raise his right to a speedy trial. He maintains eighteen months elapsed
from his arrest to his sentencing, fourteen months elapsed from his indictment
to his sentencing, and seven months elapsed from his guilty plea to his
sentencing. Contending "neither the [S]tate nor the court was interested in
moving [his] case[,]" he asserts counsel should have moved "for a probable
cause hearing, for an order to show cause, or for dismissal based on a violation
of his right to a speedy trial." This argument fails, as did his guilty plea
withdrawal argument, because defendant failed to demonstrate a speedy trial
would have been successful. See O'Neal, 190 N.J. at 618-19; Worlock, 117 N.J.
at 625.
"The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and imposed on the states by the Due Process Clause
of the Fourteenth Amendment." State v. Tsetsekas, 411 N.J. Super. 1, 8 (App.
Div. 2009) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967)).
"The constitutional right . . . attaches upon defendant's arrest." Ibid. (alteration
in original) (quoting State v. Fulford, 349 N.J. Super. 183, 190 (App. Div.
2002)). Since it is the State's duty to promptly bring a case to trial, "[a]s a matter
A-4103-19 7 of fundamental fairness," the State must avoid "excessive delay in completing a
prosecution[,]" or risk violating "defendant's constitutional right to a speedy
trial." Ibid.
The determination of whether a defendant's right to a speedy trial has been
violated is based upon the four-factor balancing analysis pronounced in Barker
v. Wingo, 407 U.S. 514, 530 (1972). See State v. Cahill, 213 N.J. 253, 258
(2013) (maintaining that Barker is "the governing standard to evaluate claims of
a denial of the federal and state constitutional right to a speedy trial in all
criminal and quasi-criminal matters"). The four non-exclusive factors that a
court should evaluate are: (1) length of the delay, (2) reason for the delay, (3)
assertion of the right by the defendant, and (4) prejudice to the defendant. Id. at
264 (citing Barker, 407 U.S. at 530). No one factor is determinative of whether
a right to a speedy trial has been violated. Id. at 267 (citing Barker, 407 U.S. at
533). We will not overturn a trial judge's decision where a defendant was
deprived of due process on speedy trial grounds unless the judge's ruling was
clearly erroneous. State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).
The PCR judge determined defendant made no showing under Barker that
his speedy trial rights were violated. Although the judge's analysis was
incorrectly based upon the time between the indictment and guilty plea rather
A-4103-19 8 than the date of arrest, his order still stands. From defendant's arrest on April
29, 2015, it took twelve months and seventeen days until his guilty plea on May
16, 2016. He has not articulated how any of the Barker factors weigh in his
favor. Given he was charged with the Graves offense of first-degree attempted
murder, the amount of time it took to resolve his indictment was not an
inordinate delay and, in turn, not a denial of his right to a speedy trial. Moreover,
defendant has not shown his plea agreement or sentence would have been
different had counsel filed a motion for a speedy trial.
Because we agree with the PCR judge that defendant did not establish a
prima facie claim of ineffective assistance of counsel, he was not entitled to an
evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).
Any arguments not specifically addressed are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-4103-19 9