STATE OF NEW JERSEY v. JUAN R. NIEVES (18-01-0125, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3807-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN R. NIEVES,
Defendant-Appellant.
_______________________
Submitted December 7, 2021 – Decided June 23, 2022
Before Judges Fisher and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 18-01-0125.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/ Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
After pleading guilty to second degree possession of a handgun for an
unlawful purpose, N.J.S.A. 2C:39-4(a), Juan Nieves (Nieves) was sentenced to
a forty-two- month term of imprisonment, subject to forty-two months of parole
ineligibility. Nieves petitioned for post-conviction relief (PCR) before the
sentencing court, and the application was denied without an evidentiary hearing.
Nieves appealed alleging that trial counsel rendered ineffective assistance of
counsel by mistakenly telling him he would face thirty-six months in prison, not
forty-two months, and by failing to communicate, meet, or review discovery
with him, essentially forcing him to plead guilty. We affirm for the reasons set
forth in this opinion.
Where a PCR court does not conduct an evidentiary hearing, we "conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State
v Harris, 181 N.J. 391, 421 (2004)). When petitioning for PCR, a defendant
must establish he is entitled to "PCR by a preponderance of the evidence." State
v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)).
We analyze ineffective assistance of counsel claims by using the two-
prong test established by the Supreme Court in Strickland v. Washington, 466
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U.S. 668 (1984). See Preciose, 129 N.J. at 463; see also State v. Fritz, 105 N.J.
42, 58 (1987). The first prong of the Strickland test requires a defendant to
establish counsel's performance was deficient. Preciose, 129 N.J. at 463. "The
second, and far more difficult, prong . . . is whether there exists 'a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" Id. at 463-64 (quoting Strickland, 466
U.S. at 694).
There exists a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment. Strickland, 466 U.S. at 689. Further, because prejudice
is not presumed, defendant must demonstrate how specific errors by counsel
undermined the reliability of the proceeding. State v. Drisco, 355 N.J. Super.
283, 289-90 (App. Div. 2002) (citing United States v. Cronic, 466 U.S. 648, 659
n.26 (1984)).
Our de novo review of the record shows the following: the plea colloquy
was conducted with a Spanish interpreter with Nieves' consent, as he advised
the court he was "more comfortable with Spanish"; Nieves' counsel
acknowledged the correct sentence of forty-two months on the record; Nieves
verbally acknowledged that he signed and initialed the written plea agreement ,
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including the supplemental Graves Act plea form; Nieves verbally
acknowledged that he was subject to parole ineligibility if he pled guilty to a
Graves Act offense; and that Nieves was aware that if the court sentenced him
to more than forty-two months imprisonment with forty-two months parole
ineligibility, he could withdraw his plea. We find no credible evidence in the
record to suggest that Nieves was uninformed about his agreed upon forty -two
month sentence.
We turn to Nieves' next argument, that his counsel failed to consult with
him prior to the plea or explain his rights on appeal. The record shows that
during the plea colloquy, the court asked Nieves precise questions designed to
elicit concerns about any lack of communication or misunderstanding between
attorney and client.
THE COURT: Has your attorney answered all your
questions?
MR. NIEVES: Yes.
THE COURT: Are you satisfied with her
representation?
MR. NIEVES: Yes.
....
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THE COURT: Now, Mr. Nieves, how far did you get in
school?
MR. NIEVES: Um, ninth.
THE COURT: Okay. With the assistance of your
attorney and the interpreter, did they go over all the
questions on the plea agreement with you? It's five ...
let me see, six pages.
MR. NIEVES: Yes.
THE COURT: And did they go over all the answers
with you?
MR. NIEVES: Yes.
THE COURT: And to the best of your knowledge, were
those answers truthful?
MR. NIEVES: Yes.
Further review of the record shows that at sentencing, Nieves declined the
court's offer of an interpreter. After sentencing, the court informed Nieves of
his appeal rights, and he verbally acknowledged the court.
Our review of Nieves' two-page certification reveals nothing but "bald
assertions." "Bald assertions" are insufficient to sustain a defendant's burden
of establishing an ineffective assistance of counsel claim. State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Nieves uses a self-serving and
unsupported certification to manufacture a dispute with himself, contradicting
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sworn statements he made in court during the plea hearing and at sentencing.
We discern nothing in the record which requires an evidentiary hearing to
resolve, and we find no error. Any arguments not addressed here are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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