STATE OF NEW JERSEY VS. D.T.B. (13-12-3306, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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.
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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
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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
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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)
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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)).
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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
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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
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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
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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
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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.
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