STATE OF NEW JERSEY v. JOSE VARGAS (2011)

Defendant Jose Vargas appeals from an order denying his petition for post-conviction relief (PCR).  We affirm.

On September 12, 2005, defendant pleaded guilty to first degree robbery, N.J.S.A. 2C:15–1, in exchange for the State dismissing a charge of aggravated assault and agreeing to recommend a maximum term of imprisonment of fifteen years with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. Defendant was subsequently sentenced to a twelve-year term of imprisonment with an eighty-five percent period of parole ineligibility under NERA, and appropriate penalties and assessments were imposed.

Defendant did not file a direct appeal, but instead filed a PCR petition.   Counsel was assigned and filed an amended petition.   Defendant contends that trial counsel was ineffective in failing to:  (1) adequately investigate his case;  (2) provide him with discovery;  and (3) adequately argue mitigating factors at sentencing.   Defendant maintains that he was forced to plead guilty because of counsel's ineffective assistance, and he would have received a more favorable sentence had counsel made a better argument at sentencing.   Defendant did not allege in his PCR petition what facts additional investigation would have revealed, or what mitigating factors should have been argued during his sentencing proceeding.   Judge Paul M. DePascale denied defendant's petition without an evidentiary hearing.

On appeal, defendant raises the following argument:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

To establish a deprivation of the Sixth Amendment right to effective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), namely, that (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense.   See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).  “To 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 pleaded guilty and would have insisted on going to trial.”  State v. DeFrisco, 137 N.J. 434, 457 (1994) (internal quotations and citations omitted), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996).

The mere raising of a claim of ineffective assistance of counsel does not entitle a defendant to an evidentiary hearing.  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion.   See State v. Preciose, 129 N.J. 451, 462 (1992);  R. 3:22–10.   Trial courts should ordinarily grant evidentiary hearings only if the defendant has presented a prima facie claim of ineffective assistance of counsel.  Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland.  Preciose, supra, 129 N.J. at 463.   To demonstrate a reasonable likelihood of success, a defendant “must do more than make bald assertions that he was denied the effective assistance of counsel[;][h]e must allege facts sufficient to demonstrate counsel's alleged substandard performance.”  Cummings, supra, 321 N.J.Super. at 170.  “[W]hen a petitioner 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 affiant or the person making the certification.”  Ibid.

In his oral opinion, Judge DePascale concluded that defendant failed to demonstrate a reasonable likelihood of success under the two-part test set forth in Strickland, because defendant's claims were devoid of factual support and were mere bald assertions.   As to counsel's alleged lack of investigation, Judge DePascale observed that defendant had failed to set forth what a more thorough investigation would have revealed or how it would have affected the outcome of the proceedings.

Addressing defendant's discovery argument, Judge DePascale noted that defendant admitted reviewing the State's discovery with his attorney.   The judge found that counsel's failure to provide defendant with his own set of discovery did not constitute ineffective assistance.

Lastly, as to defendant's claim that his counsel failed to adequately argue mitigating factors at sentencing, Judge DePascale noted that defendant did not identify the mitigating factors that his counsel failed to argue.   The judge concluded defendant's argument that he might have received a more favorable sentence was pure speculation.

We reject defendant's arguments and affirm the denial of his petition substantially for the reasons set forth by Judge DePascale.   Defendant's arguments are without sufficient merit to warrant further discussion in a written opinion.   R. 2:11–3(e)(2).

Affirmed.

PER CURIAM