Opinion
DOCKET NO. A-5559-12T3
07-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RODNEY BULLOCK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-12-3701. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from an April 8, 2013 order denying his petition for post-conviction relief (PCR). Defendant maintains that his plea counsel was ineffective. We affirm.
In May 2002, defendant pled guilty to first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two), and first-degree robbery, N.J.S.A. 2C:15-1 (Count Five). Defendant testified at the plea hearing that he cut a screen to an open window and entered the victim's apartment without her permission. Once inside, defendant brandished a knife, tied up the victim, and placed the victim in the trunk of her own car. Defendant then dumped the victim, still bound, into a river. He admitted that she died as a result of his actions.
In June 2002, the judge followed the plea agreement and sentenced defendant to forty-three years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on Count Two, consecutive to a prison term of seventeen and a half years subject to NERA on Count Five. The judge adhered to the plea agreement dismissing the remaining charges contained in the indictment.
Defendant appealed timely from his convictions contending that his sentence was excessive. We heard the appeal on our excessive sentencing calendar. In October 2005, we affirmed defendant's conviction on Count Two, but remanded pursuant to State v. Natale, 184 N.J. 458 (2005), on Count Five. On remand, the court re-imposed the same sentence on Count Five.
Approximately nine years later, in November 2011, pro se defendant filed his petition for PCR indicating that "a lesser offen[s]e for murder should have been considered given [his] impaired contact with reality, which remains still [to] this day" and that his "[fifth] and [fourteenth] amendment rights were not honored once interjected." Defendant's assigned PCR counsel thereafter filed a brief further supporting the petition and also arguing that plea counsel failed to file a motion to suppress defendant's statement.
Judge Michele M. Fox conducted oral argument, denied the petition, and rendered a lengthy oral opinion. The judge declined to relax the five-year time bar imposed by Rule 3:22-12. Although the judge denied the petition on procedural grounds, she also addressed the merits of defendant's petition. She rejected defendant's contention that plea counsel was ineffective by failing to file a motion to suppress, or that defendant was somehow prejudiced by that failure, and she otherwise concluded that defendant failed to make out a prima facie case of ineffectiveness of counsel.
On appeal, defendant raises the following points:
POINT [I]
THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S PETITION FOR [PCR] WAS TIME BARRED BECAUSE DEFENDANT'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT AND ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUND[A]MENTAL INJUSTICE.
POINT [II]
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL.
After carefully considering the record and briefs, we conclude that defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by the PCR judge in her comprehensive opinion. We add the following brief comments.
For defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, ___, U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___, U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, ___ U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674).
Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel:
[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.Although the question addressed in Nunez-Valdez concerned the defendant's immigration status, we have applied the same standards to assess the validity of a claim of ineffective assistance of counsel in the context of a guilty plea that did not involve the immigration status of the defendant. See State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012) (applying the Nunez-Valdez standards to assess the materiality of erroneous information provided by defense counsel concerning the defendant's right to possess a firearm).
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alterations in original) (citation and internal quotation marks omitted).]
We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test, as well as the standard established under Nunez-Valdez.
Finally, we reject defendant's contention that the PCR judge erred by ruling on his petition without an evidentiary hearing. A hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); see also R. 3:22-10(b) (stating that a hearing is only required if the defendant presents a prima facie case in support of PCR, there are material issues of fact that cannot be resolved by reference to the existing record, and an evidentiary hearing is required to resolve the claims for relief).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION