Opinion
DOCKET NO. A-4025-12T2
01-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AARON MCCLENNY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-01-0157. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a January 7, 2013 order denying his petition for post-conviction relief ("PCR"). Defendant contends that there was an insufficient factual basis for his guilty plea and that his plea counsel rendered ineffective assistance of counsel. We affirm.
Defendant pled guilty to second-degree attempted burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6. At the plea hearing, counsel elicited from defendant a factual basis for the guilty plea, and the judge determined defendant understood his rights and accepted the plea. The judge sentenced defendant to five years in prison with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, followed by three years of parole supervision. We denied defendant's direct appeal. State v. McClenny, No. A-2430-09 (App. Div. April 6, 2011).
A grand jury indicted defendant charging him with first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (Count One); second-degree attempted burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6 (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1) (Count Four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Five); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Six). Prior to trial, the State dismissed Counts One, Three, Four, Five, and Six in exchange for defendant pleading guilty to Count Two.
Defendant subsequently filed his petition for PCR and requested permission to withdraw his guilty plea arguing that he gave an inadequate factual basis during the plea hearing. The PCR judge conducted oral argument, concluded that a sufficient factual basis existed and an evidentiary hearing was unwarranted, and she denied the petition in a fourteen-page opinion.
Defendant raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR [PCR] SINCE AN INSUFFICIENT FACTUAL BASIS WAS ELICITED FROM [DEFENDANT] AT THE TIME HIS GUILTY PLEA WAS ENTERED.
POINT II
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR [PCR] WITHOUT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE IS ENTITLED TO WITHDRAW HIS GUILTY PLEA AS A RESULT OF NOT HAVING BEEN INFORMED BY TRIAL COUNSEL OR THE TRIAL COURT THAT HE WAS SUBJECT TO A MANDATORY THREE YEAR PERIOD OF PAROLE SUPERVISION ARISING OUT OF HIS GUILTY PLEA.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in her comprehensive opinion. We add the following brief comments.
A judge may only accept a guilty plea if "'in the court's discretion, . . . there is a factual basis for the plea[,] . . . the plea is made voluntarily, not as the result of any threats or of any promises or inducements . . . and with an understanding of the nature of the charge and the consequences of the plea.'" State v. Warren, 115 N.J. 433, 441 (1989) (quoting R. 3:9-2). When a defendant moves to vacate a guilty plea, the trial court must consider "'(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.'" State v. Mustaro, 411 N.J. Super. 91, 100 (App. Div. 2009) (quoting State v. Slater, 198 N.J. 145, 157-58 (2009)). We must affirm a trial court's decision on a motion to vacate a guilty plea "absent 'an abuse of discretion which renders the lower court's decision clearly erroneous[.]'" Id. at 99 (quoting State v. Simon, 161 N.J. 416, 444 (1999)).
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 defendant provided a sufficient factual basis for his guilty plea and 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.
As to the sufficiency of the factual basis, plea counsel elicited from defendant that he was present at the scene and that defendant "attempted to gain entry into [an apartment] . . . to take certain items that did not belong [him]," that defendant had a crowbar in his possession, and that defendant "used that crowbar to attempt to enter . . . the apartment." Plea counsel further elicited from defendant that his co-defendant "was armed with . . . a .22 caliber rifle." The State also elicited from defendant that his purpose was to "try and steal money from that apartment" and that defendant "did not have permission to enter that apartment." This is a sufficient factual basis for the judge to have accepted defendant's guilty plea for second-degree attempted burglary.
Finally, a defendant is entitled to an evidentiary hearing when "a defendant has presented a prima facie [case] in support of [PCR]," meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (first alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, defendant signed a supplemental plea form at the time of his guilty plea in which he acknowledged that he understood "the court must impose a [three] year term of parole supervision and that term will begin as soon as [defendant] complete[s] the sentence of incarceration[.]" Therefore, defendant fails to demonstrate a reasonable likelihood of success on the merits.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION