STATE OF NEW JERSEY VS. DENNIS ALSTON (15-07-0910, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2769-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DENNIS ALSTON,
Defendant-Appellant.
________________________
Submitted November 1, 2021 – Decided December 10, 2021
Before Judges Sabatino and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 15-07-
0910.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the December 5, 2019 denial of his petition for
post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In 2016, defendant pled guilty to two counts of first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1), and one count of second-degree
endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). Defendant was
sentenced in accordance with his plea agreement to an aggregate term of twenty
years, subject to a period of parole ineligibility under the No Early Release Act,
N.J.S.A. 2C:43-7.2. Thereafter, defendant appealed, and an excessive
sentencing panel of our court affirmed. State v. Alston, No. A-2675-16 (App.
Div. Dec. 5, 2017). Defendant did not file a petition for certification.
For our purposes, we need not set forth the facts leading to defendant's
conviction. Instead, we turn to defendant's petition for PCR.
In 2018, defendant filed his first PCR petition. In his pro se submission,
defendant asserted that his guilty plea was "secured in violation of his State and
Federal constitutional right to the effective assistance of trial counsel," and that
"the cumulative errors in this case mandate reversal." In an addendum attached
to his petition, defendant asserted that his trial counsel did not meet with him in
jail or prepare him for court appearances, advised him to accept the plea offer
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"because he didn't think the case was defendable," and had defendant sign his
plea agreement without ever meeting with him to explain what it entailed.
In a supplemental submission filed by counsel on his behalf, defendant
argued that his petition should be granted because he established that he received
the ineffective assistance of counsel, or at a minimum, he should receive an
evidentiary hearing, having established a prima facie claim. In support, he cited
to counsel's failure to provide him with "full discovery and conduct pretrial
investigation," which made it "impossible" for defendant to reach an "informed
decision" about pleading guilty. Defendant also asserted that counsel failed to
file pretrial motions, or "to argue all appropriate mitigating factors and
Yarbough[1] factors at sentencing thus, [his] sentence [was] excessive."
Defendant specifically asserted that his sentences should not have been
consecutive.
On November 7, 2019, the PCR court considered the parties' oral
arguments, and on December 11, 2019, issued an order denying defendant's
petition, as well as a comprehensive fourteen-page written decision setting forth
the court's reasons.
1
State v. Yarbough, 100 N.J. 627 (1985).
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In its written decision, the PCR court detailed the procedural history and
facts leading to defendant's guilty plea. 2 Addressing defendant's contention
about trial counsel's failure to provide him with discovery, the PCR court noted
defendant provided "no evidence to substantiate this claim, including in his own
certification." Moreover, the court found that his contention in thi s regard was
belied by the record of his "plea colloquy" where the defendant confirmed he
received and reviewed all discovery with his attorney.
Turning to defendant's claims about trial counsel's failure to conduct
pretrial investigation, the PCR court observed defendant failed to provide any
explanation as to what trial counsel "failed to investigate, or how it would have
impacted the defendant's case." Here too, the court noted "defendant indicated
on the record [at his plea hearing] that he was satisfied with his attorney's
services." The court reached a similar conclusion as to defendant's contentions
about trial counsel's failure to file pretrial motions, noting defendant did not
provide any indication as to "why those motions were meritorious, or what effect
the failure to file those motions had on his case." It relied on this same reason
2
The PCR court was presided over by the same judge who accepted defendant's
guilty plea and sentenced him.
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for rejecting defendant's claim that trial counsel failed to file "a competency
motion."
Addressing defendant's sentence, the PCR court concluded that
defendant's challenge was procedurally barred under Rule 3:22-4. According to
the PCR court, not only did defendant fail to provide "any evidence that his
constitutional rights were violated, or that the process of his sentencing resulted
in a fundamental injustice," but also because we considered his excessive
sentence claim, his petition for PCR was procedurally barred. Specifically, the
court noted defendant's present contentions about the misapplication of the
Yarbough factors "was examined and resolved by the Appellate Division on
December 5, 2017."
Turning to the second prong of the Strickland/Fritz test,3 the PCR court
concluded defendant failed to establish a prima facie showing of ineffective
assistance of counsel because he "[did] not allege any specific facts that show
how he was prejudiced by his counsel's performance." The court noted
defendant received "a favorable plea based on the charges he faced, on the day
of trial," and he could not demonstrate "but for his counsel's alleged errors, the
3
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 58 (1987).
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result of his case would have been more favorable to him." Because defendant
could not establish a prima facie claim of ineffective assistance of counsel,
citing to State v. Preciose, 129 N.J. 451 (1992), the court concluded defendant
was not entitled to an evidentiary hearing. This appeal followed.
On appeal, defendant asserts the following argument:
POINT I
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING OR A MERITS REVIEW
OF HIS CLAIM THAT COUNSEL RENDERED
INEFFECTIVE ASSISTANCE BY FAILING TO
ADVOCATE AT SENTENCING; HE IS ALSO
ENTITLED TO AN EVIDENTIARY HEARING ON
HIS CLAIM THAT HIS ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY
FAILING TO INVESTIGATE, PROVIDE
DISCOVERY, DISCUSS HIS CASE OR FILE
PRETRIAL MOTIONS, THEREBY FORCING HIM
INTO A GUILTY PLEA.
We have considered defendant's contention in light of the record and the
applicable principles of law. We affirm substantially for the reasons stated by
the PCR court in its thorough written decision. We add only the following
comment.
The PCR court noted defendant's contention about ineffective assistance
of counsel was procedurally barred by Rule 3:22-4, primarily based upon our
earlier determination that defendant's sentence was not excessive and was
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consistent with Yarbough. However, as defendant asserts on appeal, his claims
of ineffective assistance of counsel were directed at different subject matters
than he claimed on appeal.
In his petition, defendant argued trial counsel failed "to argue to the court
all appropriate mitigating factors." Specifically, he argued counsel could have
argued at sentencing that defendant was entitled to a lesser punishment than
recommended in his plea agreement, and that mitigating factor four, N.J.S.A.
2C:44-1(b)(4), was applicable because defendant's intoxication provided
"grounds tending to excuse [defendant's] conduct, though they failed to establish
a defense." In addition, he asserted counsel failed to argue for mitigating factor
seven, N.J.S.A. 2C:44-1(b)(7) ("the defendant has no history of prior
delinquency or criminal activity or has led a law-abiding life for a substantial
period of time before the commission of the present offense"), in light of the
fact that defendant had no prior record, and for mitigating factor nine, N.J.S.A.
2C:44-1(b)(9) ("the character and attitude of the defendant indicate that the
defendant is unlikely to commit another offense"). These contentions were not
previously addressed and could not have been until defendant exhausted his
appellate rights on direct appeal of his sentence.
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Having said that, we reiterate that we otherwise agree with the PCR court's
overall determination that defendant's contentions on PCR failed to meet the
requirements under Strickland/Fritz, as they were unsupported by specific
factual contentions setting forth the specific failures made by trial counsel and
how, but for those failures, defendant would not have accepted the plea
agreement. See State v. Aburoumi, 464 N.J. Super. 326, 342 (App. Div. 2020)
(stating a prima facie showing of ineffective assistance is established where "the
advice given by . . . plea counsel fell below professional norms," and "defendant
'demonstrate[d] that he would not have pled guilty if he had been provided with
accurate information' from his plea counsel") (alteration in original) (quoting
State v. Gaitan, 209 N.J. 339, 351 (2012)). Here, defendant failed to provide
the necessary details and relied on only "bald assertions" that were insufficient
to support his petition. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999).
Affirmed.
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