NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0186-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AKEEM J. TORREZ a/k/a AKEEM TORREZ,
Defendant-Appellant. _______________________
Submitted December 1, 2020 – Decided February 10, 2021
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey Law Division, Hudson County, Indictment No. 13-12-2251.
Joseph E Krakora, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).
PER CURIAM Defendant appeals the denial of his post-conviction relief (PCR) petition,
in which he asserted an ineffective-assistance claim. Without an evidentiary
hearing, the PCR judge rejected defendant's claims that his first lawyer was
ineffective in not reviewing any discovery with him before entering a guilty plea
and his second lawyer was ineffective in advising him to withdraw a motion to
vacate the plea. We agree with the PCR judge's conclusions and affirm.
To obtain relief on ineffective-assistance-of-counsel grounds, a defendant
must show that counsel's performance was deficient, and the deficiency
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy those two prongs, a defendant
"must prove an objectively deficient performance by defense counsel" and that
the deficiency was so prejudicial "it is reasonably probable that the result would
be altered." State v. Allegro, 193 N.J. 352, 366 (2008).
A defendant's right to effective assistance of counsel extends to the
decision to enter a guilty plea. State v. Gaitan, 209 N.J. 339, 350-51 (2012). To
meet the Strickland prejudice prong in a claim based on a guilty plea, a
defendant must demonstrate "a reasonable probability that, but for counsel's
errors, [the defendant] would not have pleaded guilty and would have insisted
on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also State v.
A-0186-19 2 Aburoumi, 464 N.J. Super. 326, 339 (App. Div. 2020). A defendant also "must
convince the court that a decision to reject the plea bargain would have been
rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372
(2010); see also Aburoumi, 464 N.J. Super. at 339.
When a court decides not to conduct an evidentiary hearing in a PCR
application, we review de novo the court's legal conclusions and "factual
inferences drawn from the documentary record." State v. Harris, 181 N.J. 391,
420-21 (2004); see also State v. Blake, 444 N.J. Super. 285, 294 (App. Div.
2016). Whether to conduct an evidentiary hearing on a PCR petition is within
the court's discretion. See R. 3:22-10; see also State v. Jones, 219 N.J. 298, 311
(2014). If, viewing the facts in a light most favorable to the defendant, a court
concludes the "PCR claim has a reasonable probability of being meritorious,
then the defendant should ordinarily receive an evidentiary hearing in order to
prove his entitlement to relief." Jones, 219 N.J. at 311; see also State v. Preciose,
129 N.J. 451, 462 (1992) (finding an evidentiary hearing should be held only if
defendant presents "a prima facie claim in support of [PCR]"). To establish
entitlement to an evidentiary hearing, a defendant "must allege facts sufficient
to demonstrate counsel's alleged substandard performance." State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Allegations that are "too vague,
A-0186-19 3 conclusory, or speculative" do not merit an evidentiary hearing. State v.
Marshall, 148 N.J. 89, 158 (1997). "[B]ald assertions" are not enough.
Cummings, 321 N.J. Super. at 170; see also Jones, 219 N.J. at 311-12.
In deciding a motion to withdraw a guilty plea, a court considers: "(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." State v. Slater, 198 N.J. 145, 150 (2009);
see also State v. Lipa, 219 N.J. 323, 332 (2014).
After his arrest, defendant told detectives that he and others had discussed
going to a neighborhood to "shoot it up" in connection with on-going disputes
they were having with residents of that neighborhood. He admitted that during
their drive they saw people in a basement apartment, walked up to a window of
the apartment, and fired their handguns. Defendant stated that he had seen the
other shooter fire into the basement-apartment window; defendant claimed the
bullet from his gun hit a brick wall. He identified himself and the other shooter
in photographs taken from a surveillance video. He also admitted to attempting
to break into a car to obtain guns.
A-0186-19 4 Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1)
or -3(a)(2); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree
possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a); and third-
degree attempted burglary, N.J.S.A. 2C:5-1 and 2C:18-2. If convicted of
murder, defendant faced a mandatory thirty-year prison sentence.
After reaching a plea agreement with the State, defendant pleaded guilty
to one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The
State dismissed the remaining charges and recommended a maximum sentence
of twenty-five years imprisonment, with an eighty-five-percent period of parole
ineligibility, N.J.S.A. 2C:43-7.2. At the plea hearing defendant testified he and
another person fired guns into the apartment knowing the victim was there and
that his death by their shots was probable. He also testified that a bullet from
the other shooter's gun killed the victim.
Represented by a different lawyer, defendant moved to vacate the guilty
plea, asserting that it was not knowing and voluntary because his first lawyer
had not explained to him the strengths and weaknesses of the evidence or what
defenses he had but instead told him he faced life in prison if he did not accept
the plea deal. In support of that motion, defendant submitted a certification in
A-0186-19 5 which he stated he had requested copies of all discovery but had not received it
and had "constantly" told his attorney of "various defenses" that he believed
applied to him, but his attorney "did not wish to pursue any defenses," "only
would discuss taking a plea," and told him that if he "did not take a plea" he
"could face life in prison."
Defendant subsequently withdrew the motion to vacate the plea and was
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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-0186-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AKEEM J. TORREZ a/k/a AKEEM TORREZ,
Defendant-Appellant. _______________________
Submitted December 1, 2020 – Decided February 10, 2021
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey Law Division, Hudson County, Indictment No. 13-12-2251.
Joseph E Krakora, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).
PER CURIAM Defendant appeals the denial of his post-conviction relief (PCR) petition,
in which he asserted an ineffective-assistance claim. Without an evidentiary
hearing, the PCR judge rejected defendant's claims that his first lawyer was
ineffective in not reviewing any discovery with him before entering a guilty plea
and his second lawyer was ineffective in advising him to withdraw a motion to
vacate the plea. We agree with the PCR judge's conclusions and affirm.
To obtain relief on ineffective-assistance-of-counsel grounds, a defendant
must show that counsel's performance was deficient, and the deficiency
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy those two prongs, a defendant
"must prove an objectively deficient performance by defense counsel" and that
the deficiency was so prejudicial "it is reasonably probable that the result would
be altered." State v. Allegro, 193 N.J. 352, 366 (2008).
A defendant's right to effective assistance of counsel extends to the
decision to enter a guilty plea. State v. Gaitan, 209 N.J. 339, 350-51 (2012). To
meet the Strickland prejudice prong in a claim based on a guilty plea, a
defendant must demonstrate "a reasonable probability that, but for counsel's
errors, [the defendant] would not have pleaded guilty and would have insisted
on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also State v.
A-0186-19 2 Aburoumi, 464 N.J. Super. 326, 339 (App. Div. 2020). A defendant also "must
convince the court that a decision to reject the plea bargain would have been
rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372
(2010); see also Aburoumi, 464 N.J. Super. at 339.
When a court decides not to conduct an evidentiary hearing in a PCR
application, we review de novo the court's legal conclusions and "factual
inferences drawn from the documentary record." State v. Harris, 181 N.J. 391,
420-21 (2004); see also State v. Blake, 444 N.J. Super. 285, 294 (App. Div.
2016). Whether to conduct an evidentiary hearing on a PCR petition is within
the court's discretion. See R. 3:22-10; see also State v. Jones, 219 N.J. 298, 311
(2014). If, viewing the facts in a light most favorable to the defendant, a court
concludes the "PCR claim has a reasonable probability of being meritorious,
then the defendant should ordinarily receive an evidentiary hearing in order to
prove his entitlement to relief." Jones, 219 N.J. at 311; see also State v. Preciose,
129 N.J. 451, 462 (1992) (finding an evidentiary hearing should be held only if
defendant presents "a prima facie claim in support of [PCR]"). To establish
entitlement to an evidentiary hearing, a defendant "must allege facts sufficient
to demonstrate counsel's alleged substandard performance." State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Allegations that are "too vague,
A-0186-19 3 conclusory, or speculative" do not merit an evidentiary hearing. State v.
Marshall, 148 N.J. 89, 158 (1997). "[B]ald assertions" are not enough.
Cummings, 321 N.J. Super. at 170; see also Jones, 219 N.J. at 311-12.
In deciding a motion to withdraw a guilty plea, a court considers: "(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." State v. Slater, 198 N.J. 145, 150 (2009);
see also State v. Lipa, 219 N.J. 323, 332 (2014).
After his arrest, defendant told detectives that he and others had discussed
going to a neighborhood to "shoot it up" in connection with on-going disputes
they were having with residents of that neighborhood. He admitted that during
their drive they saw people in a basement apartment, walked up to a window of
the apartment, and fired their handguns. Defendant stated that he had seen the
other shooter fire into the basement-apartment window; defendant claimed the
bullet from his gun hit a brick wall. He identified himself and the other shooter
in photographs taken from a surveillance video. He also admitted to attempting
to break into a car to obtain guns.
A-0186-19 4 Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1)
or -3(a)(2); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree
possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a); and third-
degree attempted burglary, N.J.S.A. 2C:5-1 and 2C:18-2. If convicted of
murder, defendant faced a mandatory thirty-year prison sentence.
After reaching a plea agreement with the State, defendant pleaded guilty
to one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The
State dismissed the remaining charges and recommended a maximum sentence
of twenty-five years imprisonment, with an eighty-five-percent period of parole
ineligibility, N.J.S.A. 2C:43-7.2. At the plea hearing defendant testified he and
another person fired guns into the apartment knowing the victim was there and
that his death by their shots was probable. He also testified that a bullet from
the other shooter's gun killed the victim.
Represented by a different lawyer, defendant moved to vacate the guilty
plea, asserting that it was not knowing and voluntary because his first lawyer
had not explained to him the strengths and weaknesses of the evidence or what
defenses he had but instead told him he faced life in prison if he did not accept
the plea deal. In support of that motion, defendant submitted a certification in
A-0186-19 5 which he stated he had requested copies of all discovery but had not received it
and had "constantly" told his attorney of "various defenses" that he believed
applied to him, but his attorney "did not wish to pursue any defenses," "only
would discuss taking a plea," and told him that if he "did not take a plea" he
"could face life in prison."
Defendant subsequently withdrew the motion to vacate the plea and was
sentenced to twenty-five years imprisonment, with an eighty-five-percent period
of parole ineligibility, N.J.S.A. 2C:43-7.2, pursuant to the plea agreement. He
appealed his sentence, which we affirmed. See State v. Torrez, No. A-004016-
16 (App. Div. Feb. 8), certif. denied, 235 N.J. 99 (2018).
Defendant filed a PCR petition, asserting he was denied effective
assistance of counsel when his first attorney failed to review discovery with him
and his second attorney provided misleading advice that caused him to withdraw
his motion to vacate the guilty plea. In support of the petition, defendant
submitted his certification in which he stated that his first attorney "never
review[ed] discovery" with him and his second attorney "convinced" him to
withdraw the plea-withdrawal motion by telling him that he could "get me . . .
[ten] or [twelve] years if I just proceed to sentencing."
A-0186-19 6 Following oral argument on defendant's PCR petition, Judge Patrick J.
Arre denied defendant's request for an evidentiary hearing and his petition. The
judge found defendant's claim that his first attorney failed to provide him with
discovery was nothing more than a bald assertion. As to the claim regarding his
second attorney, the judge noted that defendant had not asserted but for counsel's
error he would have insisted on going to trial; defendant stated only that his
lawyer's statements caused him to withdraw the plea-withdrawal motion. See
Aburoumi, 464 N.J. Super. at 339. The judge determined that to establish his
second lawyer's ineffective assistance prejudiced his case, defendant would have
to convince him that the motion judge would have granted the plea-withdrawal
motion – something defendant could not do "in light of the criminal liability
facing this defendant," noting defendant had confessed to the crime after his
arrest. Accordingly, Judge Arre concluded defendant had failed to establish
entitlement to an evidentiary hearing and failed to meet the two-pronged
Strickland test. We agree.
The only support for defendant's claims is his bare-bones certification. He
faults his first attorney for not providing discovery to him but does not explain
how any withheld discovery would have altered the outcome. In his plea-
withdrawal motion certification – not his PCR-petition certification – defendant
A-0186-19 7 faults his first attorney for not considering the "various defenses" about which
defendant "constantly" told him but fails to identify what those defenses were
or how they would have altered the outcome, especially given his post-arrest
confession. Defendant faults his second attorney for the decision to withdraw
his plea-withdrawal motion but fails to articulate how that withdrawal would
have altered the outcome, much less lead to a better one. Defendant's bald
assertions fail to demonstrate counsels' assistance was ineffective or prejudicial .
Even if we were to assume – in the absence of a specific assertion by
defendant – defendant would have rejected a plea deal and insisted on going to
trial, he has not demonstrated that decision "would have been rational under the
circumstances." Padilla, 559 U.S. at 372. There was no upside to rejecting the
plea deal, considering the admissions defendant had made regarding the role he
played in the intentional fatal shooting of the victim. Defendant makes no
proffer as to how he would have achieved a better result by going to trial.
Under our de novo review, Blake, 444 N.J. Super. at 294, we decline to
remand this case to the PCR court for an evidentiary hearing. Defendant failed
to establish a prima facie case, and Judge Arre properly denied his request for
an evidentiary hearing.
Affirmed.
A-0186-19 8