STATE OF NEW JERSEY VS. D.T.B. (13-12-3306, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0283-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.T.B.,

Defendant-Appellant. ________________________

Submitted December 2, 2019 – Decided December 18, 2019

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-12-3306.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John Joseph Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant D.T.B. appeals from an order denying his post-conviction relief

(PCR) petition without an evidentiary hearing. Based on our review of the

record in light of the applicable legal principles, we affirm.

Defendant was charged in Atlantic County Indictment No. 13-12-3306

with six counts of first-degree human trafficking, N.J.S.A. 2C:13-8; six counts

of third-degree promoting prostitution, N.J.S.A. 2C:34-1(a)(4)(c); and single

counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and

fourth-degree unlawful possession of stun gun, N.J.S.A. 2C:39-3(h). With the

assistance of counsel, defendant resolved those charges, and charges in Atlantic

County Indictment No. 15-02-0406,1 through a negotiated plea agreement with

the State. The plea agreement provided that in exchange for defendant's plea of

guilty to sexual assault, possession of a weapon for an unlawful purpose, and

one count of human trafficking under Indictment No. 13-12-3306, the State

agreed to recommend an aggregate sentence not to exceed twenty years and the

dismissal of Indictment No. 15-02-0406.

1 The record does not include Indictment No. 15-02-0406 or describe the charges in the indictment. A-0283-18T4 2 Defendant pleaded guilty in accordance with the agreement. During his

plea proceeding, defendant testified that on August 28, 2013, he committed a

sexual assault upon C.R. by physically forcing and coercing vaginal penetration

on her. He also testified that on the same day, he possessed a stun gun for the

unlawful purpose of pointing it at C.R. to coerce her to go with him to the motel

where he sexually assaulted her and "to keep her present during the sexual

assault." Defendant further testified that he committed the offense of human

trafficking on August 8, 2013, by causing or threatening to cause serious bodily

harm to F.T., and by preventing her from leaving the motel, for the purpose of

requiring that she continue to work for him as a prostitute. The court later

sentenced defendant in accordance with the plea agreement. 2

Defendant did not file a direct appeal. Instead, he filed a timely pro se

PCR petition generally claiming ineffective assistance of his plea counsel.

Following the assignment of counsel, defendant filed a second verified petition

2 Defendant received a seven-year sentence on the second-degree sexual assault charge, subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43- 7.2, and a concurrent three-year sentence on the possession of a weapon for an unlawful purpose charge. The court imposed a consecutive thirteen-year sentence on the human trafficking charge. The court also imposed the special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4, and ordered defendant's compliance with the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23. A-0283-18T4 3 detailing his claim that his plea counsel was ineffective. More particularly,

defendant asserted: (1) plea counsel did not advise him there was surveillance

video from the motel where the sexual assault occurred "that would have shown

that C.R. was willingly with" him; (2) plea counsel failed to advise him that C.R.

provided "conflicting accounts of her participation in prostitution"; (3) plea

counsel did not provide him with discovery showing that, J.V., an alleged victim

in one of the human trafficking counts that was dismissed pursuant to the plea

agreement, had a criminal history including a disorderly persons prostitution

conviction and a New York misdemeanor conviction for prostitution; and (4)

plea counsel did not provide him with a statement J.V. provided to the police ,

which he contends conflicted with another statement she had provided.

Defendant also generally averred that "[h]ad [he] been aware of all of the

aforementioned, [he] would not have entered into the plea agreement and would

have insisted on proceeding to trial."

The PCR court heard oral argument on the petition and, in a detailed

written opinion, denied the petition without an evidentiary hearing. The court

found defendant failed to sustain his burden of establishing a prima facie case

of ineffective assistance of counsel under the two-pronged standard established

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

A-0283-18T4 4 Court in State v. Fritz, 105 N.J. 42, 58 (1987). The court noted that under the

Strickland standard, defendant was required to present competent evidence

demonstrating that: (1) his counsel committed errors that were so serious that he

or she was not functioning as the "counsel" guaranteed by the Sixth Amendment;

and (2) there is a reasonable probability that but for counsel's alleged errors the

result of the plea proceeding would have been different. Strickland, 466 U.S. at

687.

The court also explained that to establish ineffective assistance of counsel

in the context of a plea proceeding, a defendant must demonstrate that counsel's

performance was deficient and there is a reasonable probability that but for

counsel's errors, he or she would not have pleaded guilty and would have insisted

on going to trial. See State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009). That

is, a defendant must show that not pleading guilty would have been "rational

under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

Relying on our decision in State v. Cummings, the court also noted that to

establish a prima facie claim of ineffective assistance of counsel, a defendant

must present competent evidence, in the form of "affidavits or certifications

based upon . . . personal knowledge," or otherwise, setting forth the facts

supporting the claim. 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant

A-0283-18T4 5 may not rely on "bald assertions" to satisfy the burden of demonstrating a prima

facie case of ineffective assistance of counsel. Ibid.

The court carefully measured the facts presented in the verified petitions

against these standards. The court rejected defendant's claim his counsel's

performance was deficient by allegedly failing to procure a video recording from

the motel. The court found the claim was untethered to any competent evidence

that a video existed, or that, if it did, it would show C.R. was at the motel

voluntarily. The court noted the State's denial that it ever had any surveillance

recording from the motel and concluded defendant's claim a recording existed

constituted nothing more than a bald assertion.

The court similarly found defendant's claim his counsel's performance was

ineffective by failing to advise him that C.R. gave conflicting statements is not

supported by any competent evidence. Defendant did not submit transcripts of

the purported statements or otherwise demonstrate that any statements by C.R.

conflicted. Left with only defendant's bald assertion that C.R. gave conflicting

statements,3 the court found defendant failed to demonstrate his counsel's

performance was deficient by failing to provide them.

3 Even without any demonstration by defendant that C.R. gave conflicting statements, the court reviewed video recordings of statements made by C.R. and (continued) A-0283-18T4 6 For the same reason, the court determined defendant failed to provide

competent evidence that his counsel's performance was deficient by not

providing him with allegedly conflicting statements made by J.V. The court

explained defendant did not provide any evidence showing J.V. made statements

that conflicted.

The court also addressed defendant's final claim: that his plea counsel

failed to inform him about J.V.'s prior convictions and that pending charges

against J.V. had been dismissed. 4 The court noted that even if defendant's

counsel's performance was deficient by failing to provide such information,

defendant failed to satisfy the second prong of the Strickland standard on the

claim, and had similarly failed to satisfy the second prong on his three other

claims.

did not "glean any relevant contradictions." Defendant does not challenge the court's finding. 4 The PCR petition does not include an assertion that plea counsel failed to inform defendant that charges against J.V. were dismissed. Thus, the court may have properly rejected the claim because it is not supported by competent evidence. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity," State v. Jones, 219 N.J. 298, 312 (2014), "facts sufficient to demonstrate counsel's alleged substandard performance," ibid. (quoting State v. Porter, 216 N.J. 343, 355 (2013)).

A-0283-18T4 7 The court found even if defendant had presented competent evidence that

his counsel's performance was deficient in the manners alleged in his four

claims, his petition must be denied because he did not present evidence that but

for his counsel's purported errors, there is a reasonable probability the result of

the plea proceeding would have been different. See Strickland, 466 U.S. at 687.

The court observed defendant was required to demonstrate that but for his

counsel's errors, he would have insisted on going to trial, Nuñez-Valdéz, 200

N.J. at 139, and not pleading guilty would have been "rational under the

circumstances," Padilla, 559 U.S. at 372.

The court determined defendant made no such showing. Indeed, other

than his bald assertion that but for his counsel's purported errors, he would have

rejected the plea offer and proceeded to trial, defendant offered no evidence or

argument that not pleading guilty would have been rational under the

circumstances. See ibid. Because it is defendant's burden to establish both

prongs of the Strickland standard, his failure to present any evidence satisfying

the requirements of the second prong required a denial of the petition. See State

v. Gaitan, 209 N.J. 339, 350 (2012) ("Although a demonstration of prejudice

constitutes the second part of the Strickland analysis, courts are permitted

leeway to choose to examine first whether a defendant has been prejudiced, and

A-0283-18T4 8 if not, to dismiss the claim without determining whether counsel's performance

was constitutionally deficient."(citation omitted)).

Nonetheless, the court detailed defendant's extensive sentencing exposure

on the charges contained in the two indictments and the benefit of the substantial

reduction in his sentencing exposure he obtained from the plea agreement. The

court also noted that any issues related to J.V.'s alleged convictions or

conflicting statements would not have affected defendant's decision to plead

guilty because even if he was found not guilty of the charges in which J.V. was

an alleged victim, he had a 131-year sentencing exposure on the remaining

charges against him. Defendant could not demonstrate any prejudice based on

his counsel's alleged failure to obtain the alleged video recording or purported

conflicting statements of C.R. because there was no showing they existed i n the

first instance.

In sum, the court found defendant failed to present any evidence satisfying

the requirements of the second prong of the Strickland standard. The court

further found defendant's failure to establish either prong of the standard

required the denial of his request for an evidentiary hearing. See R. 3:22-10(b)

(providing that a defendant "shall be entitled to an evidentiary hearing only upon

establishment of a prima facie case in support of" PCR). The court entered an

A-0283-18T4 9 order denying the PCR petition without an evidentiary hearing. This appeal

followed.

Defendant offers the following argument for our consideration:

POINT ONE

THE PCR COURT ERRED BY DENYING DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING ON THE CLAIMS THAT HIS TRIAL ATTORNEY PROVIDED HIM WITH INEFFECTIVE ASSISTANCE[.]

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS FOR INEFFECTIVE ASSISTANCE OF COUNSEL EVIDENTIARY HEARINGS AND PETITIONS FOR POST- CONVICTION RELIEF[.]

B. COUNSEL'S PERFORMANCE DURING PLEA NEGOTIATIONS[.]

II.

We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004) (citing Manalapan Realty, LP v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies

to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing

has not been held, it is within our authority "to conduct a de novo review of both

A-0283-18T4 10 the factual findings and legal conclusions of the PCR court." Id. at 421. We

apply that standard here.

Defendant does not challenge the court's finding that he failed to sustain

his burden of presenting evidence demonstrating a prima facie case of

ineffective assistance of counsel under the Strickland standard. Instead, he

contends he was entitled to an evidentiary hearing so the discovery materials

plea counsel shared with him could be subject to "proper evaluation" and plea

"counsel [could] provide testimony regarding his performance during the plea

negotiation process."

Defendant's argument is without sufficient merit to warrant discussion in

a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons

set forth in the PCR court's well-reasoned written decision. We add only the

following brief comments.

An evidentiary hearing should only be granted if a defendant has

presented a prima facie claim of ineffective assistance of counsel. State v.

Preciose, 129 N.J. 451, 463 (1992). "To establish a prima facie claim of

ineffective assistance of counsel, a defendant must demonstrate the reasonable

likelihood of succeeding under the test set forth in Strickland . . . ." Ibid.

Where, as here, a "defendant's allegations are too vague, conclusory, or

A-0283-18T4 11 speculative . . . an evidentiary hearing need not be granted." State v. Marshall,

148 N.J. 89, 158 (1997). Defendant asserts he should be granted a hearing to

develop a record showing his plea counsel was ineffective, but "[t]he purpose of

an evidentiary hearing is to permit [a] defendant to prove that he or s he was

improperly convicted . . . ; it is not an occasion for the defendant to question

witnesses in an indiscriminate search for . . . grounds for" PCR. Ibid.

Affirmed.

A-0283-18T4 12