NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0848-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS A. PEREZ,
Defendant-Appellant. ___________________________
Submitted December 10, 2019 – Decided January 9, 2020
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2900.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John Joseph Lafferty, IV, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Luis A. Perez appeals from a July 30, 2018 order denying his
petition for post-conviction relief (PCR). We affirm.
I.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-
3(a)(1)(2); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b). He pled guilty to first-degree aggravated manslaughter,
N.J.S.A. 2C:11-4(a)(1).
Defendant filed a motion to withdraw his plea, arguing that the discovery
showed he had a colorable claim of self-defense. The trial court denied
defendant's motion to withdraw his plea, and sentenced him to eighteen years of
imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal. We affirmed the denial of the motion to
withdraw the plea and the sentence imposed. State v. Perez, No. A-5903-13
(App. Div. Mar. 10, 2015) (slip op. at 1).
Thereafter, defendant filed a PCR petition, which the PCR court denied,
without conducting an evidentiary hearing. We affirmed denial of the PCR.
State v. Perez, No. A-5274-15 (App. Div. July 24, 2017). However, the Supreme
Court remanded the matter to the trial court for an evidentiary hearing. State v.
A-0848-18T4 2 Perez, 231 N.J. 423 (2017). The facts underlying defendant's conviction are set
forth in our opinion and need not be repeated here.
In his petition, defendant challenged the effectiveness of his trial counsel,
Mary Linehan, and argued that as a result of her failure to review late discovery
with him, he was unaware of a potential self-defense claim. The discovery
revealed the victim was a violent man who went to defendant's home to continue
a dispute they had. Prior to the shooting, the victim "tussled" with defendant,
in view of the State's witnesses. The victim appeared intoxicated to defendant
and chased him. Based on this discovery, defendant argued he had a valid self-
defense claim. He also argued Linehan's decision to forego a Wade1 hearing
resulted in prejudice to him.
Defendant claimed that Stephen Funk, who argued defendant's motion to
withdraw his guilty plea and represented him at sentencing, was ineffective for
failing to supplement Linehan's motion to withdraw defendant's guilty plea with
a toxicology report showing the victim was under the influence when he was
murdered. Defendant further contended his due process rights were violated.
1 United States v. Wade, 388 U.S. 218 (1967). A-0848-18T4 3 Defendant asserts he would not have entered into the plea agreement had
the contents of this discovery been explained to him. At the hearing, the PCR
court heard testimony from Linehan and Funk. Defendant also testified.
At the hearing, defendant testified that he did not see or speak to the victim
on the day he was murdered. The PCR court found Linehan and Funk were
credible, and defendant was not. The PCR court made the following findings:
Linehan assisted [defendant] in his plea after reviewing all the discovery with him. Further, the documents provided to [defendant] the day he pleaded guilty offered no new evidence which would have encouraged him not to plead or changed trial strategy. Additionally, Linehan's strategic decision to forego the [Wade] hearing was not so likely to prejudice the accused that it is tantamount to a complete denial of counsel as a [Wade] hearing was likely to have been fruitless. Funk's decision not to supplement his motion to withdraw [defendant's] guilty plea was a strategic decision that was not so likely to prejudice the accused that it is tantamount to a complete denial of counsel. Furthermore, the toxicology report would not have altered the outcome of [defendant's] motion. As such, both Linehan's and Funk's strategic decisions and performance were not so deficient or faulty so as to result in actions or omissions that were tantamount to a complete denial of counsel.
Defendant presents the following issue for our consideration in his appeal.
POINT I
THE PCR COURT ERRED IN DENYING MR. PEREZ'S CLAIM THAT TRIAL COUNSEL WAS
A-0848-18T4 4 INEFFECTIVE FOR FAILING TO REVIEW LATE- PROVIDED DISCOVERY WITH HIM.
We are not persuaded by defendant's argument and affirm.
II.
In challenging the effectiveness of his counsel, defendant argues that, as
a result of his attorney's failure to review discovery provided on the eve of trial
with him, he was unaware of a self-defense claim. Defendant asserted that
instead of entering a guilty plea, he would have proceeded to trial.
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment 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 (1987). In order to prevail on a claim of ineffective
assistance of counsel, defendant must meet the two-prong test of establishing
both that: (1) counsel's performance was deficient and he or she made errors that
were so egregious that counsel was not functioning effectively as guaranteed by
the Sixth Amendment to the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights 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.
A-0848-18T4 5 It is well established that the Strickland standard applies to claims of
ineffective assistance of counsel associated with a guilty plea. State v. Gaitan,
209 N.J. 339, 350-51 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).
To establish the prejudice prong under Strickland in the context of a plea, a
defendant must establish that "there is a reasonable probability that, but for
counsel's errors, [he or she] would not have pled guilty and would have insisted
on going to trial." Id. at 351 (quoting State v. Nuñez-Valdez, 200 N.J. 129, 139
2009). A defendant must show that it would have been rational to reject the plea
offer and insist on going to trial, and, that "he probably would have done so
. . . ." State v. Maldon, 422 N.J. Super.
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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-0848-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS A. PEREZ,
Defendant-Appellant. ___________________________
Submitted December 10, 2019 – Decided January 9, 2020
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-12-2900.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (John Joseph Lafferty, IV, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Luis A. Perez appeals from a July 30, 2018 order denying his
petition for post-conviction relief (PCR). We affirm.
I.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-
3(a)(1)(2); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b). He pled guilty to first-degree aggravated manslaughter,
N.J.S.A. 2C:11-4(a)(1).
Defendant filed a motion to withdraw his plea, arguing that the discovery
showed he had a colorable claim of self-defense. The trial court denied
defendant's motion to withdraw his plea, and sentenced him to eighteen years of
imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal. We affirmed the denial of the motion to
withdraw the plea and the sentence imposed. State v. Perez, No. A-5903-13
(App. Div. Mar. 10, 2015) (slip op. at 1).
Thereafter, defendant filed a PCR petition, which the PCR court denied,
without conducting an evidentiary hearing. We affirmed denial of the PCR.
State v. Perez, No. A-5274-15 (App. Div. July 24, 2017). However, the Supreme
Court remanded the matter to the trial court for an evidentiary hearing. State v.
A-0848-18T4 2 Perez, 231 N.J. 423 (2017). The facts underlying defendant's conviction are set
forth in our opinion and need not be repeated here.
In his petition, defendant challenged the effectiveness of his trial counsel,
Mary Linehan, and argued that as a result of her failure to review late discovery
with him, he was unaware of a potential self-defense claim. The discovery
revealed the victim was a violent man who went to defendant's home to continue
a dispute they had. Prior to the shooting, the victim "tussled" with defendant,
in view of the State's witnesses. The victim appeared intoxicated to defendant
and chased him. Based on this discovery, defendant argued he had a valid self-
defense claim. He also argued Linehan's decision to forego a Wade1 hearing
resulted in prejudice to him.
Defendant claimed that Stephen Funk, who argued defendant's motion to
withdraw his guilty plea and represented him at sentencing, was ineffective for
failing to supplement Linehan's motion to withdraw defendant's guilty plea with
a toxicology report showing the victim was under the influence when he was
murdered. Defendant further contended his due process rights were violated.
1 United States v. Wade, 388 U.S. 218 (1967). A-0848-18T4 3 Defendant asserts he would not have entered into the plea agreement had
the contents of this discovery been explained to him. At the hearing, the PCR
court heard testimony from Linehan and Funk. Defendant also testified.
At the hearing, defendant testified that he did not see or speak to the victim
on the day he was murdered. The PCR court found Linehan and Funk were
credible, and defendant was not. The PCR court made the following findings:
Linehan assisted [defendant] in his plea after reviewing all the discovery with him. Further, the documents provided to [defendant] the day he pleaded guilty offered no new evidence which would have encouraged him not to plead or changed trial strategy. Additionally, Linehan's strategic decision to forego the [Wade] hearing was not so likely to prejudice the accused that it is tantamount to a complete denial of counsel as a [Wade] hearing was likely to have been fruitless. Funk's decision not to supplement his motion to withdraw [defendant's] guilty plea was a strategic decision that was not so likely to prejudice the accused that it is tantamount to a complete denial of counsel. Furthermore, the toxicology report would not have altered the outcome of [defendant's] motion. As such, both Linehan's and Funk's strategic decisions and performance were not so deficient or faulty so as to result in actions or omissions that were tantamount to a complete denial of counsel.
Defendant presents the following issue for our consideration in his appeal.
POINT I
THE PCR COURT ERRED IN DENYING MR. PEREZ'S CLAIM THAT TRIAL COUNSEL WAS
A-0848-18T4 4 INEFFECTIVE FOR FAILING TO REVIEW LATE- PROVIDED DISCOVERY WITH HIM.
We are not persuaded by defendant's argument and affirm.
II.
In challenging the effectiveness of his counsel, defendant argues that, as
a result of his attorney's failure to review discovery provided on the eve of trial
with him, he was unaware of a self-defense claim. Defendant asserted that
instead of entering a guilty plea, he would have proceeded to trial.
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment 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 (1987). In order to prevail on a claim of ineffective
assistance of counsel, defendant must meet the two-prong test of establishing
both that: (1) counsel's performance was deficient and he or she made errors that
were so egregious that counsel was not functioning effectively as guaranteed by
the Sixth Amendment to the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights 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.
A-0848-18T4 5 It is well established that the Strickland standard applies to claims of
ineffective assistance of counsel associated with a guilty plea. State v. Gaitan,
209 N.J. 339, 350-51 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).
To establish the prejudice prong under Strickland in the context of a plea, a
defendant must establish that "there is a reasonable probability that, but for
counsel's errors, [he or she] would not have pled guilty and would have insisted
on going to trial." Id. at 351 (quoting State v. Nuñez-Valdez, 200 N.J. 129, 139
2009). A defendant must show that it would have been rational to reject the plea
offer and insist on going to trial, and, that "he probably would have done so
. . . ." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).
A petitioner seeking PCR bears the burden of establishing by a
preponderance of the evidence that he is entitled to relief. State v. Mitchell, 126
N.J. 565, 579 (1992). "To sustain that burden, specific facts must be alleged
and articulated, which, if believed, would provide the court with an adequate
basis on which to rest its decision." Ibid.
However, in arguing that his counsel failed to review discovery with him,
defendant has not identified any information that would have led to a different
result had the case been tried. Here, the PCR court concluded that Linehan did
not risk having defendant plead guilty before reviewing the discovery herself
A-0848-18T4 6 and with defendant. We defer to the PCR court's factual findings where an
evidentiary hearing was conducted. State v. Nash, 212 N.J. 518, 540 (2013).
The lack of specificity in defendant's arguments and proofs at the evidentiary
hearing precludes any determination that either prong of the Strickland/Fritz test
has been satisfied, and therefore, cannot provide a basis for relief.
In this case, as the PCR court observed, the discovery in contention was
merely investigation notes prepared by law enforcement officers, which were
later memorialized into police reports. Defendant failed to show how the
information contained in these notes was different from what he already
reviewed in the police reports. Therefore, no prejudice has been demonstrated.
Moreover, defendant did not cite to anything in the investigation notes that
would have convinced him to proceed to trial instead of pleading guilty. The
PCR court found defendant was "evasive" and that his "version of events were
internally inconsistent." The PCR court's findings were based upon sufficient
credible evidence in the record. Therefore, we discern no error in the PCR
court's conclusion that a Wade hearing would have been "fruitless."
Based upon our careful review of the record, the PCR court aptly found
Funk's decision not to supplement the motion to withdraw the guilty plea with
the toxicology report would not have changed the outcome of the motion.
A-0848-18T4 7 We are satisfied from our review of the record that defendant failed to
establish ineffectiveness of trial counsel. Accordingly, the PCR court correctly
denied his application for PCR relief.
Affirmed.
A-0848-18T4 8