STATE OF NEW JERSEY VS. LUIS A. DIAZ (13-04-0589, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2353-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS A. DIAZ,
Defendant-Appellant.
________________________
Submitted May 5, 2021 – Decided June 10, 2021
Before Judges Whipple and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 13-04-0589.
Joseph E. Krakora, Public Defender, attorney for
appellant (Amira R. Scurato, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Craig A. Becker, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Luis Diaz appeals from the trial court's December 12, 2019
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
Defendant raises the following arguments on appeal:
POINT I
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM PLEA COUNSEL.
A. Plea Counsel Failed in her Duty to Protect
Defendant's Legal Interests.
B. The PCR Judge Erred in Failing to Conduct an
Evidentiary Hearing to Fully Explore Defendant's
Claims.
On April 22, 2013, defendant was indicted and charged with first-degree
robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2, 2C:15-1; second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a
firearm, N.J.S.A. 2C:39-5(b); and fourth-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-5(d). In May 2014, defendant pled guilty to
second-degree conspiracy to commit robbery and second-degree possession of
a firearm for an unlawful purpose, in exchange for the State's recommendation
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of a seven-year maximum prison term. Before sentencing, defendant moved to
withdraw his guilty plea, which was denied. The court sentenced defendant to
a five-year term of imprisonment on count two, subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, with a concurrent five-year Graves Act term,
N.J.S.A. 2C:43-6, on count three, the weapons charge.
Defendant filed a direct appeal, arguing the motion to withdraw his guilty
plea should have been granted because the court took the factual basis prior to
the completion of the waiver of his rights. We disagreed and affirmed. State v.
Diaz, No. A-1400-15 (App. Div. Oct. 18, 2017) (slip op. at 1-2).
In that decision, we focused on defendant's plea colloquy and his motion
to withdraw his plea, and said:
At a hearing that began on May 5, 2014, the
Assistant Prosecutor moved the plea agreement by
representing that plea forms were completed by the
parties and defendant was expected to plead guilty to
the above-referenced second-degree charges. The
Assistant Prosecutor also placed on the record the
State's recommended sentence of seven years, subject
to . . . NERA, N.J.S.A. 2C:43-7.2, and [Graves] Act
components, N.J.S.A. 2C:43-6, and stated defendant
agreed to testify against his co-defendants and his
counsel was free to argue for a lesser sentence.
Defendant, who was questioned by his counsel to
establish a factual basis for the plea, testified under oath
that, on December 28, 2012, he and two co-defendants
agreed to rob an owner of a pizza shop. One co-
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defendant drove defendant and the other co-defendant
to the individual's home where they encountered the
owner, and the co-defendant fired a handgun that was
jointly possessed. Defendant and co-defendant ran
from the scene and called the other co-defendant for a
ride. All three co-defendants were arrested shortly
thereafter.
....
The judge asked defendant if he understood each
relevant potential consequence of the plea to both
offenses, which defendant said he did. The judge then
scheduled a sentencing date.
On July 10, 2014, defendant moved to withdraw
his guilty plea pursuant to State v. Slater, 198 N.J. 145(2009), asserting he misunderstood the terms of the plea
and the potential sentence, his Miranda[1] rights were
violated, and he has three small children for whom he
cares. Defendant provided no facts to support a
colorable claim of innocence, demonstrated no flaw in
the plea proceeding, and provided no evidence his
lawyer misled him into pleading guilty. The judge then
sentenced defendant to a term of five years, consistent
with the plea agreement.
On June 29, 2018, defendant filed a motion for PCR, asserting ineffective
assistance of counsel because neither defendant's trial counsel nor appellate
counsel investigated his mental competency at the time of his plea and
allocution. On December 12, 2019, after considering defendant's arguments, the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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PCR judge denied defendant's petition in a thorough, well-reasoned opinion
from the bench. This appeal followed.
Defendant initially contended that his trial counsel improperly allowed
him to plead guilty while under the influence of mental health medications
Lexapro and Xanax. Defendant asserts that it was error for the court not to
assess his mental competency at the time of the plea due to his anxiety diagnosis
and medication, and defense counsel should have retained a mental health
expert.
For purposes of defendant's PCR submission, he was examined by a
psychiatrist, Kenneth Weiss, M.D., who upon examination found defendant
"alert, oriented, cooperative and socially appropriate . . . of average intelligence,
[and] displaying the capacity to take in and use information." However, based
on this single interview with defendant, Weiss concluded defendant had post-
traumatic stress disorder and panic attacks, which prevented him from entering
a knowing and voluntary plea in May 2014.
The PCR judge rejected defendant's assertion, examining defendant's
various claims of ineffective assistance of counsel under the Strickland/Fritz 2
2
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42(1987).
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standard, concluding defendant's claims—ineffective assistance of counsel
related to his mental condition or understanding of the plea agreement—lacked
merit. The court rejected defendant's request for an evidentiary hearing because
defendant failed to present a prima facie case of ineffective assistance, and there
were no material facts outside the record that required resolution. The court
noted the record revealed "absolutely no indication that [defendant] was
confused or under the influence of any medication at the time of his plea." The
court rejected Weiss's report, which notably conceded that defendant was
"unable to say whether the medication, if he took it at all, had any effect on
him."
Since we thoroughly examined the transcripts of the plea on direct appeal,
we concur with the PCR judge's conclusion that defendant was lucid and
responsive, and there was nothing to suggest that "[d]efendant was participating
[with] anything other than complete[] voluntar[iness] and with full knowledge
of . . . what was happening."
Where a judge denies a PCR petition without an evidentiary hearing, we
review the denial for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013). However, where no evidentiary hearing was
conducted, "we may review the factual inferences the court has drawn from the
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documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294 (App.
Div. 2016). "We also review de novo the [trial] court's conclusions of law."
Ibid. (citation omitted).
PCR is "New Jersey's analogue to the federal writ of habeas corpus." State
v. Cummings, 321 N.J. Super. 154, 164 (App. Div. 1999) (first citing State v.
Afanador, 151 N.J. 41, 49 (1997); and then citing State v. Preciose, 129 N.J.
451, 459 (1992)). A PCR claim "must be established by a preponderance of the
credible evidence." State v. McQuaid, 147 N.J. 464, 483 (1997) (citing Preciose,
129 N.J. at 459). Rule 3:22-2(a) states that PCR is cognizable if based upon a
"[s]ubstantial denial in the conviction proceedings of defendant's rights under
the Constitution of the United States or the Constitution or laws of the State of
New Jersey." The Sixth Amendment of the United States Constitution and
article I, paragraph 10 of the New Jersey Constitution both guarantee effective
assistance of legal defense counsel to a person accused of a crime. See State v.
Porter, 216 N.J. 343, 352 (2013) (citing Strickland, 466 U.S. at 685-86).
In determining whether a defendant has established a prima facie claim,
the facts should be viewed in the light most favorable to the defendant. Preciose,
129 N.J. at 462-63. To determine whether a prima facie claim of ineffective
assistance of counsel is present, the claim must be evaluated under the two-
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prong Strickland test. Under the Strickland test, "a reviewing court must
determine: (1) whether counsel's performance 'fell below an objective standard
of reasonableness,' and if so, (2) whether there exists a 'reasonable probability
that, but for counsel's unprofessional error, the result of the proceeding would
have been different.'" State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting
Strickland, 466 U.S. at 688, 693- 94); see also Fritz, 105 N.J. at 60-61. However,
to establish a prima facie claim, a defendant "must do more than make bald
assertions that he was denied the effective assistance of counsel." Cummings,
321 N.J. Super. at 170. Rather, a defendant "must allege facts sufficient to
demonstrate counsel's alleged substandard performance. Thus, when a
[defendant] claims his trial attorney inadequately investigated his case, he must
assert the facts that an investigation would have revealed, supported by
affidavits or certifications based upon the personal knowledge" of the person
making the certification or affidavit. Ibid.Here, we have been presented with a vague and conclusory diagnosis from
a mental health examination years after the events in question. Under the second
Strickland prong, in the context of a guilty plea, a defendant must show a
reasonable probability that, but for counsel's alleged errors, he would not have
pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S.
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52, 59 (1985); State v. DiFrisco II, 137 N.J. 434, 456 (1994). Moreover, he must
show that a decision to reject the plea would have been rational under the
circumstances. Padilla v. Kentucky, 559 U.S. 356, 372 (2010); State v. Maddon,
422 N.J. Super. 475, 486 (App. Div. 2011) (defendant must show that "had he
been properly advised, it would have been rational for him to decline the plea
offer and insist on going to trial and, in fact that he probably would have done
so[.]") Given defendant's understanding of the rights he gave up, as well as the
evidence against him, it is unlikely that defendant would have insisted on going
to trial because he would not have been guaranteed an aggregate five-year
sentence subject to NERA.
Looking at the facts in the light most favorable to defendant, there is no
evidence defendant would have insisted on going to trial but for defense
counsel's advice, and it would not have been rational for him to do so.
Therefore, defendant has not met prong two of the Strickland/Fritz test.
Moreover, defendant's bald assertions, as the PCR judge noted, did not
present a prima facie case as required for an evidentiary hearing. Regardless,
defendant's allegations are vague and speculative, and an evidentiary hearing
would not "aid the court's analysis" of whether defendant is entitled to PCR.
Therefore, an evidentiary hearing was not warranted, and there was no abuse of
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the PCR judge's discretion. Defendant's other arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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