STATE OF NEW JERSEY VS. ANTHONY VEGA (05-12-2152, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3099-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY VEGA,
Defendant-Appellant.
_______________________________
Submitted September 25, 2018 – Decided October 10, 2018
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 05-12-2152.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Jenny X. Zhang, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant appeals from an August 1, 2016 order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
In 2005, defendant was charged in an indictment with three counts of first-
degree murder, N.J.S.A. 2C:11-3(a)(1)-(3), two counts of second-degree
attempted kidnapping, N.J.S.A. 2C:5-1 and 2C:13-1(b), first-degree armed
robbery, N.J.S.A. 2C:15-1, second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1), second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b), third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d), fourth-degree unlawful possession of a weapon, N.J.SA.
2C:39-5(d), first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and
2C:11-3(a)(1)-(2), second-degree conspiracy to commit kidnapping, N.J.S.A.
2C:5-2 and 2C:13-1(b), and second-degree conspiracy to commit armed robbery,
N.J.S.A. 2C:5-2 and 2C:15-1.
On August 15, 2008, pursuant to a negotiated plea agreement, defendant
pled guilty to two counts of second-degree attempted kidnapping, one count of
first-degree armed robbery, one count of second-degree conspiracy to commit
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robbery, and one count of second-degree conspiracy to commit kidnapping. In
return, the State agreed to dismiss the remaining charges.
At the plea hearing, defendant admitted his guilt and that he was entering
the plea freely, intelligently and voluntarily. Defendant also stated that he
discussed the charges with counsel and was satisfied with his services.
Defendant's counsel advised the court that prior to the plea, he met with
defendant thirty-five to forty times, discussed the charges with him and provided
defendant with all pre-trial discovery from the State.
On March 26, 2009, defendant was sentenced to a total of fifteen years,
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed
only his sentence and on August 3, 2011, we affirmed by order. State v. Vega,
No. A-5963-08 (App. Div. August 3, 2011). On March 22, 2012, the Supreme
Court denied certification. State v. Vega, 210 N.J. 27 (2012). While this appeal
was pending, defendant was released from incarceration.
On May 12, 2012, defendant filed a petition for a writ of habeas corpus in
the United States District Court for the District of New Jersey, pursuant to 28
U.S.C. § 2254, claiming that there was an insufficient factual basis for his guilty
plea. On December 18, 2012, the district court denied defendant's petition
without prejudice due to his failure to exhaust state remedies and explained:
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[defendant] submitted a letter in which he states that he
was recently informed by the Superior Court[] of New
Jersey that he had not given them a copy of his petition
for post-conviction relief and he had not raised with
them certain issues that are raised in this [habeas]
petition; he asks this court for "leave" of this petition,
until such time as he can properly re-present his case.
This court construes the [l]etter as a request to stay this
matter so that he can exhaust in state court the sole
claim asserted here, that there was not a factual basis
for his plea.
On July 15, 2015, defendant filed a pro se PCR petition. On August 18,
2015, he submitted a pro se brief in which he argued he was entitled to an
evidentiary hearing because his trial counsel was ineffective for failing to
investigate the facts adequately and thoroughly, failing to inform him as to the
elements of the charged offenses, incorrectly informing him that his presence at
the scene established guilt, and incorrectly advising him to plead guilty to
charges that lacked a factual basis.
Defendant was assigned PCR counsel who filed a supplemental brief in
further support of the petition. In addition to the arguments raised by defendant,
PCR counsel claimed that the trial court abused its discretion by misapplying
the aggravating and mitigating factors and imposing a manifestly excessive
sentence. PCR counsel also maintained that trial counsel performed deficiently
at the sentencing phase. Finally, PCR counsel claimed appellate counsel was
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deficient for appealing only defendant's sentence and failing to file a plenary
appeal.
On July 11, 2016, the PCR court heard oral argument and on August 1,
2016 issued an order and written opinion denying defendant's petition without
an evidentiary hearing. The court concluded that defendant's petition was time-
barred under Rule 3:22-12 and certain of his claims were procedurally barred
pursuant to Rules 3:22-4 and 3:22-5. The PCR court also denied defendant's
request for an evidentiary hearing as he failed to establish a prima facie case
showing that his trial and appellate counsel were ineffective.
On appeal, defendant argues:
POINT I
DEFENDANT'S PCR PETITION IS NOT
PROCEDURALLY BARRED.
A. The petition is not time barred.
B. The petition is not barred under Rule 3:22-5.
POINT II
AS DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL, HE IS ENTITLED TO
POST-CONVICTION RELIEF.
A. Plea counsel was ineffective by failing to
properly advise his client as to the charge of
armed robbery.
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B. Plea counsel failed to challenge erroneous
findings of aggravating and mitigating factors at
sentencing.
POINT III
AS DEFENDANT FAILED TO PROVIDE A
SUFFICIENT FACTUAL BASIS TO THE CHARGES
ALLEGED, THE GUILTY PLEA MUST BE
VACATED.
A. As defendant failed to provide a sufficient factual
basis to the robbery charge, the guilty plea must
be vacated.
B. As defendant failed to provide a sufficient factual
basis to the kidnapping charges, the plea must be
vacated.
POINT IV
APPELLATE COUNSEL WAS INEFFECTIVE.
POINT V
AS THERE ARE GENUINE ISSUES OF MATERIAL
FACTS IN DISPUTE, AN EVIDENTIARY HEARING
WAS REQUIRED.
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., 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
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held, it is within our authority "to conduct a de novo review of both the factual
findings and legal conclusions of the PCR court." Id. at 421.
II.
We agree with the PCR court that defendant's PCR petition was untimely.
A first PCR petition must not "be filed . . . more than [five] years after the date
of entry . . . of the judgment of conviction that is being challenged." R. 3:22-
12(a)(1). The five-year period begins when the judgment of conviction is
entered and is "generally neither stayed nor tolled by an appellate or other
proceeding." State v. Murray, 162 N.J. 240, 249 (2000) (citations omitted).
The principal purpose of Rule 3:22-12(a) is to "encourage defendants
reasonably believing they have grounds for post-conviction relief to bring their
claims swiftly and discourage[] them from sitting on their rights until it is simply
too late for a court to render justice." State v. Cummings, 321 N.J. Super. 154,
165 (App. Div. 1999) (citing State v. Mitchell, 126 N.J. 565, 576 (1992)).
Encouraging litigants to file promptly serves two functions: avoiding prejudice
to the State resulting from retrying contested issues long after they are resolved,
and respecting the need for finality in judicial determinations. Ibid. (citation
omitted).
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However, a court may relax the five-year time bar "if the defendant alleges
facts demonstrating that the delay was due to the defendant's excusable neglect
or if the 'interests of justice' demand it." State v. Goodwin, 173 N.J. 583, 594
(2002) (quoting Mitchell, 126 N.J. at 576); see R. 3:22-12(a)(1). If the petitioner
fails to allege sufficient facts demonstrating excusable neglect and a
fundamental injustice, Rule 3:22-12(a)(1) "bars the claim." Mitchell, 126 N.J.
at 576.
"The concept of excusable neglect encompasses more than simply
providing a plausible explanation for a failure to file a timely PCR petition."
State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). In this regard, a
defendant's "lack[ ][of] sophistication in the law does not satisfy the exceptional
circumstances required" for relaxation of the time-bar. Murray, 162 N.J. at 246.
Defendant's judgment of conviction was entered on March 26, 2009, and
he filed this PCR petition on July 16, 2015. Because defendant's petition was
filed more than six years after the judgment of conviction, it is procedurally
barred as untimely unless defendant's delay was due to excusable neglect and
there is "a reasonable probability" that enforcement of the time-bar would result
in a fundamental injustice. R. 3:22-12(a)(1)(A).
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Defendant failed to provide any explanation for his belated filing in his
PCR petition, but contends for the first time on appeal that he "did not learn of
the factual predicate that his state conviction would have adverse collateral
consequences until after his federal appeals efforts failed."1 Not only is
defendant's proffered reason legally deficient, it is contradicted by the record.
Indeed, defendant sent a letter to the federal district court prior to December
2012 in which he sought dismissal of his habeas application and acknowledged
his right to file a PCR petition.
That was well over a year before the five-year bar prescribed in Rule 3:22-
12(a)(1) and two-and-one-half years before defendant actually filed his PCR
petition. Thus, the facts presented by defendant do not even provide a "plausible
explanation" for his delay, Norman, 405 N.J. Super. at 159, but rather, at best,
are grounded in his "lack[] [of] sophistication in the law [which] does not satisfy
the exceptional circumstances required" for relaxation of the time-bar. Murray,
162 N.J. at 246.
Next, we agree with the PCR court that defendant's challenge to the length
of his sentence is procedurally barred pursuant to Rule 3:22-5, which provides
1
In the PCR court, counsel "acknowledge[d] that the time bar in R. 3:22-12 may
affect the viability of the [p]etition," but stated defendant was "in possession of
correspondence from the court that addresses the issue." No such
correspondence is contained in the record.
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that "[a] prior adjudication upon the merits of any ground for relief is conclusive
whether made in the proceedings resulting in the conviction or in any post-
conviction proceeding brought pursuant to this rule[.]" Thus, a prior
adjudication of any issue, particularly those addressed on direct appeal, will
ordinarily bar PCR. Harris, 181 N.J. at 494.2
Here, defendant challenged the length of his sentence in his direct appeal.
Indeed, during oral argument, his appellate counsel "ask[ed] that his sentence
be reduced to ten years with [eighty-five] percent [parole ineligibility]" and
referenced the arguments made by trial counsel in support of and against certain
mitigating factors and aggravating factors. We affirmed defendant's sentence
and concluded that "the sentence is not manifestly excessive or unduly punitive
and does not constitute an abuse of discretion." As such, defendant is
procedurally barred from challenging his sentence through a PCR petition.
III.
Next, defendant's claim that his 2009 conviction should be vacated
because there was an insufficient factual basis for the charges is procedurally
defective and substantively meritless. As the PCR court correctly concluded,
Rule 3:22–4(a)(1) precludes a petitioner from presenting a claim "not raised in
2
We discuss (and reject) at pp. 13-14, infra, defendant's ineffective assistance
of counsel claim related to his sentence.
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the proceedings resulting in the conviction . . . or in any appeal taken in any
such proceeding" unless "the ground for relief not previously asserted could not
reasonably have been raised in any prior proceedings." However, to meet this
exception, a petitioner must show "that the factual predicate for that ground
could not have been discovered earlier through the exercise of reasonable
diligence." R. 3:22-4(a)(3).
Here, all of the information necessary to support defendant's claim that
his plea was factually deficient was contained in the transcript of the plea
hearing, which was available to defendant at the time of his direct appeal. Thus,
defendant is precluded from raising the issue for the first time in his PCR
petition.
Furthermore, even if we were to assume that defendant's challenge to his
plea is not procedurally barred, after reviewing the plea colloquy, we agree with
the PCR court that defendant gave a sufficient factual basis for the armed
robbery and kidnapping charges. Our court rules generally "require a judge to
elicit a factual basis for a guilty plea." Mitchell, 126 N.J. at 577 (citing R. 3:9-
2). "A factual basis for a plea must include either an admission or the
acknowledgement of facts that meet the essential elements of the crime." State
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v. Tate, 220 N.J. 393, 406 (2015) (citations and internal quotation marks
omitted).
During the plea colloquy, defendant admitted that he was present when
the kidnapping plan was hatched. In a guilty plea stipulation submitted pursuant
to Rule 3:9-2, defendant admitted that he participated in the act by driving co-
defendants to the scene. Defendant further admitted in the plea colloquy that he
assaulted one of the victims. Thus, defendant clearly provided a sufficient
factual basis for both kidnapping charges, N.J.S.A. 2C:5-1; 2C:13-1(b); 2C:5-2,
and his claims that he was not involved in the kidnapping and merely p resent is
belied by his sworn testimony.
Similarly, defendant provided a sufficient factual basis for the armed
robbery charges because "defendant acknowledged that one of the reasons for
going to the [scene] was to retrieve his brother's property that had been taken by
[the victims]. Further, defendant knew that [a] codefendant . . . was bringing a
handgun [to the] location and knew that a handgun could cause injury or death."
Thus, pursuant to N.J.S.A. 2C:15-1(a), defendant admitted that in the course of
committing a theft he threatened immediate bodily injury.
Defendant also claims that his allocution was insufficient on the robbery
charges because he was "asserting the affirmative defense of claim of right,"
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N.J.S.A. 2C:20-2(c)(2), which the trial judge failed to adequately explore prior
to accepting the plea. He also argues that the plea was factually deficient
because there was insufficient proof that the theft was consummated.
Defendant's claims are meritless. As the Supreme Court held over twenty years
ago in State v. Mejia, 141 N.J. 475 (1995), the claim of right defense is
unavailable to a claim of robbery. Mejia, 141 N.J. at 500. Further, an act is
"deemed . . . 'in the course of committing a theft' if it occurs in an attempt to
commit theft . . . ." N.J.S.A. 2C:15-1 (emphasis added); see State v. Schenck,
186 N.J. Super. 236, 240 (Law Div. 1982).
Finally, even assuming defendant's petition was not time barred under
Rule 3:22–12(a)(1), we are satisfied that defendant failed to sustain his burden
of demonstrating an entitlement to PCR relief under the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (1984), which our
Supreme Court adopted in State v. Fritz, 105 N.J. 42 (1987), and was not entitled
to an evidentiary hearing.
Under the first prong of the Strickland/Fritz test, a petitioner "must show
that counsel's performance was deficient." Strickland, 466 U.S. at 687. It must
be demonstrated that counsel's representation "fell below an objective standard
of reasonableness" and that "counsel made errors so serious that counsel was not
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functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687–88; Fritz, 105 N.J. at 52, 60–61.
Under the second prong, a defendant must show that the defect in
counsel's performance so "prejudiced defendant's rights to a fair trial" that there
is a "reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland, 466 U.S. at
694. In the context of a PCR petition challenging a guilty plea based on the
ineffective assistance of counsel, the second prong is established when the
defendant demonstrates a "reasonable probability that, but for counsel's errors,
[the defendant] would not have pled guilty and would have insisted on going to
trial." State v. Nuñez–Valdéz, 200 N.J. 129, 139 (2009) (alteration in original)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Defendant must also show
"a decision to reject the plea bargain would have been rational under the
circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see State v.
Maldon, 422 N.J. Super. 475 (App. Div. 2011).
Here, defendant fails to satisfy either prong of the Strickland/Fritz test.
He argues trial counsel was ineffective because he failed to investigate the case,
neglected to consult with him, gave deficient advice regarding the elements of
the crimes and incorrectly advised him to plead guilty to crimes he didn't
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commit. Defendant also claims trial counsel performed deficiently at sentencing
when he failed to argue against the application of certain aggravating factors
and failed to present the court with mitigating evidence.
Defendant's claim that trial counsel failed to investigate his case and did
not consult with him is without merit as he failed to provide a supporting
affidavit or certification from any witness "asserting the facts that an
investigation would have revealed," Cummings, 321 N.J. Super. at 170, and how
any different conduct of counsel would have resulted in defendant rejecting the
plea offer. Defendant's argument that counsel failed to consult with him and
incorrectly advised him that his presence at the scene established guilt is belied
by the plea colloquy. The plea transcript confirms defendant admitted his guilt,
entered the plea knowingly, voluntarily and after extensive consultation with
counsel. We also reject defendant's claim that his counsel was ineffective for
advising him to enter a plea to charges without a factual basis. As we have
already concluded, the judge who accepted the plea complied with Rule 3:9-2
and assured there was an adequate factual basis for all of the charges.
Defendant's contention that counsel performed deficiently during the sentencing
phase is nothing more than an unsupported vague and conclusory allegation.
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Further, it is an improper attempt to reargue claims we rejected on his direct
appeal.
In addition, given the number of charges in the indictment and their
severity, there is not a "reasonable probability" that, but for counsel's alleged
errors, defendant would have refused to plead guilty and instead insisted on
going to trial. Indeed, putting aside the dismissed charges, the kidnapping and
armed robbery charges would have exposed defendant to significantly worse
consequences.
IV.
We also find no basis in defendant's challenge to appellate counsel's
performance. "The right to effective assistance includes the right to the effective
assistance of appellate counsel on direct appeal." State v. O'Neil, 219 N.J. 598,
610–11 (2014) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985) ("A first appeal
as of right . . . is not adjudicated in accord with due process of law if the
appellant does not have the effective assistance of an attorney.")). However, an
appellate attorney is not ineffective for failing to raise every issue imaginable.
State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007). Instead, appellate
counsel is afforded the discretion to construct and present what he or she deems
are the most effective arguments in support of the client's position. Id. at 516.
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Defendant argues appellate counsel improperly limited his direct appeal
to a challenge to his sentence and instead should have requested the case be
placed on this court's plenary calendar. He also maintains that appellate counsel
"merely adopted the sentencing presentation of trial counsel" and failed to make
an argument "regarding the inadequacy of the factual basis of the sentencing
court's erroneous application of the aggravating and mitigating factors."
Defendant's first argument fails because he does not explain how a plenary
appeal would have been successful, a prerequisite to obtaining relief in these
circumstances. See State v. Echols, 199 N.J. 344, 361 (2009) (explaining that
without a showing of reversible error, the failure of appellate counsel to have
raised an issue "could not lead to the conclusion that there is a reasonable
probability that, but for the errors of trial and appellate counsel, the outcome
would have been different"). Further, we have rejected defendant's claims that
trial counsel was ineffective during sentencing or otherwise and reject a claim
suggesting appellate counsel's presentation challenging the sentence was
lacking.
V.
Finally, defendant argues that the PCR court erred by failing to conduct
an evidentiary hearing. We disagree.
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Merely raising a claim for PCR does not entitle the defendant to an
evidentiary hearing. Cummings, 321 N.J. Super. at 170. Rather, trial courts
should grant evidentiary hearings only if the defendant has presented a prima
facie claim of ineffective assistance, material issues of disputed fact lie outside
the record, and resolution of the issues necessitate a hearing. R. 3:22–10(b);
State v. Porter, 216 N.J. 343, 355 (2013).
"Rule 3:22–10 recognizes judicial discretion to conduct such hearings."
State v. Preciose, 129 N.J. 451, 462 (1992). When deciding whether to grant
an evidentiary hearing, a PCR court "should view the facts in the light most
favorable to a defendant to determine whether a defendant has established a
prima facie claim." Id. at 462–63. A hearing was not required here because
defendant failed to establish a prima facie case for PCR, there were no material
issues of disputed fact that could not be resolved by reference to the existing
record, and an evidentiary hearing was not required to resolve defendant's
claims. R. 3:22-10(b).
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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