STATE OF NEW JERSEY VS. VICTOR SANCHEZ(10-09-2073, 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NOT FOR PUBLICATION WITHOUT THE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-2168-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VICTOR SANCHEZ,
Defendant-Appellant.
___________________________________
Submitted September 18, 2017 – Decided October 30, 2017
Before Judges Sabatino and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 10-09-2073.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (LeeAnn
Cunningham, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant appeals from the denial of his post-conviction
relief (PCR) petition without an evidentiary hearing. After five
days of testimony by seventeen witnesses in his trial for murder,
defendant entered a negotiated plea to aggravated manslaughter and
weapons possession, and received an aggregate twenty-five-year
sentence, pursuant to the No Early Release Act, N.J.S.A. 2C:43-
7.2. He contends that he would have accepted the State's pre-
trial plea offer of a twenty-year term, but for his attorney's
ineffective assistance. We affirm.
We review de novo the PCR judge's legal conclusions, as well
as factual inferences drawn from the documentary record absent a
plenary hearing. State v. Harris, 181 N.J. 391, 420-21 (2004),
cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898
(2005). A defendant is entitled to effective assistance of counsel
in deciding to accept or reject a plea offer. Lafler v. Cooper,
566 U.S. 156, 168, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410
(2012). We apply the two-pronged Strickland test and determine
whether the record reveals that defendant's trial counsel was
ineffective, and that defendant suffered resulting prejudice. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
A defendant who asserted that attorney ineffectiveness caused
him to reject a favorable plea offer and take a second, less
favorable one, had to show prejudice by demonstrating that but for
counsel's errors, he would have accepted the first plea offer and
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the court would have approved it also. Missouri v. Frye, 566 U.S.
at 134, 148, 132 S. Ct. at 1410, 182 L. Ed. 2d at 392 (2012). A
defendant who claimed ineffective advice led him to reject a plea
offer and instead stand trial, had to show a reasonable probability
he would have accepted the plea and the court would have done so
as well. Lafler, supra, 566 U.S. at 164, 132 S. Ct. at 1385, 182
L. Ed. 2d at 407.
Although defendant here ultimately entered a plea mid-trial,
his petition focuses on his pre-trial decision to go to trial,
rather than plead guilty. He claims he would have accepted the
twenty-year offer had his attorney disclosed to him a restaurant's
surveillance recording that allegedly placed him at the scene
before the homicide. His bald assertion does not establish a
prima facie showing of prejudice. See State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
The State alleged that defendant was involved in an
altercation with the victim outside the restaurant. Some time
later, defendant returned wearing a face mask and fatally shot the
victim. The State presented eyewitnesses to both incidents.
Although defendant's mask obscured part of his face, the victim's
brother identified defendant as the killer, and quoted the victim's
dying declaration that defendant shot him. Other witnesses to the
shooting could not discern the shooter's face, but were able to
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identify his clothing. A video of the shooting likewise depicted
the shooter's clothing, but not his face.
At the start of the trial, both the prosecutor and trial
counsel were unaware that an extended recording of the area outside
the restaurant, covering the time period of the altercation, was
disclosed to the first defense counsel. After trial counsel cross-
examined an officer who obtained that recording, the prosecutor
obtained another copy and disclosed it to trial counsel. At that
point, trial counsel sought a mistrial, arguing that the recording
corroborated the testimony of the witnesses whose credibility he
challenged in his opening. Trial counsel also conceded he recently
discovered the overlooked recording in his predecessor's file.
The court denied the motion. Among other reasons, the judge
stated, based on his review of the recording, there was "no clear
. . . showing or indication that a fight, in fact, occurred, let
alone that the defendant participated or was a participant in this
so-called fight or alleged fight."
Shortly thereafter, defendant agreed to plead guilty to
aggravated manslaughter with a possible twenty-five-year sentence.
During his plea colloquy, defendant stated he was satisfied with
his trial counsel's representation of him. He registered no
complaint about his attorney's failure to discover the recording
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in his predecessor's file, although that oversight was already
disclosed.
We may assume that trial counsel was ineffective, by failing
to discover the recording in his predecessor's file, and by failing
to review it with defendant. See State v. Arthur, 184 N.J. 307,
332 (2005) (stating that a defense attorney has a duty to conduct
"appropriate pretrial investigation"). However, defendant has
failed to demonstrate the second necessary element of prejudice.
He failed to show that the recording was so devastating that, had
defendant reviewed it before trial, it would have tipped the
balance, and propelled him to plead guilty and accept a twenty-
year sentence, whereas the evidence that he already knew was
arrayed against him would not.
A court should not upset a conviction "solely because of [a
defendant's] post hoc assertions . . . about how he would have
pleaded but for his attorney's deficiencies." Lee v. United
States, 582 U.S. ___, ___, 137 S. Ct. 1958, 1967, 198 L. Ed. 2d
476, 487 (2017). Rather, a court must consider "contemporaneous
evidence to substantiate a defendant's expressed preferences."
Ibid. Defendant here has not provided us with the cited
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recording.1 Therefore, we are obliged to accept the trial judge's
characterization that it showed no fight at all. We may assume
the recording bolstered the State's case and corroborated
eyewitnesses, by placing defendant at the scene earlier in the
day, identifiable by clothing that is visible in the subsequent
recording of the homicide. However, defendant has not provided
us with the discovery he did review, to enable us to judge the
relative significance of the recording.
A non-citizen, defendant faced the prospect of certain
deportation if convicted. He may have decided to go to trial
because a slight chance of acquittal and avoiding deportation was
better than none, even if a trial risked a longer sentence than
he would get pleading guilty. See Lee, supra, 582 U.S. at ___,
137 S. Ct. at 1966-67, 198 L. Ed. 2d at 486 (recognizing the
rational basis for such a defense strategy). It is of no moment
that after five days of trial, defendant recalculated and decided
to plead guilty in return for the promise of a twenty-five-year
1
An appendix "shall contain . . . such other parts of the record
. . . as are essential to the proper consideration of the issues."
R. 2:6-1(a)(1). Failure to supply documents "essential to the
proper consideration of the issues hinders our appellate review."
Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84,
87 n.3 (App. Div. 2001). We are not "obliged to attempt review
of an issue when the relevant portions of the record are not
included." Cmty. Hosp. v. Blume Goldfaden, 381 N.J. Super. 119,
127 (App. Div. 2005).
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term. Our focus is on the pre-trial decision. Defendant presents
us with an insufficient showing of prejudice — that is, that it
is reasonably probable that he would have accepted the twenty-year
plea offer, but for his trial counsel's ineffective assistance.
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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