The opinion
NOT FOR PUBLICATION WITHOUT THE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-0684-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH FONTANEZ, a/k/a
MICHAEL FANTANEZ, DAVID FONTANEZ,
JOEJOE FONTANEZ, JO-JO FONTANEZ,
JOJO FONTANEZ and
JOSEPH M. FONTANEZ,
Defendant-Appellant.
_____________________________
Submitted April 26, 2017 – Decided August 25, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County,
Indictment Nos. 09-06-0493 and 12-05-0329.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah R. Terry, Designated
Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor,
attorney for respondent (Gretchen A.
Pickering, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant appeals from the July 8, 2015 order of the trial
court denying his petition for post-conviction (PCR) relief
without granting an evidentiary hearing. We affirm but remand for
resentencing.
Defendant was charged in Indictment No. 09-06-0493 with
third-degree possession with intent to distribute a controlled
dangerous substance (CDS), alprazolam, commonly known as Xanax,
N.J.S.A. 2C:35-5(a)(1) (count one).1 Defendant was also charged
in Indictment No. 09-10-0798 with fourth-degree resisting arrest,
N.J.S.A. 2C:29-2 (count one); third-degree possession of CDS,
heroin, N.J.S.A. 2C:35-10(a)(1) (count two); fourth-degree
hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count three);
third-degree resisting arrest, N.J.S.A. 2C:29-2 (count four); and
third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count
five).
On January 28, 2010, with the assistance of his first plea
counsel, defendant pled guilty to Indictment No. 09-06-0493 and
counts three and five of Indictment No. 09-10-0798. In exchange,
the State agreed to recommend the dismissal of the remaining counts
of Indictment No. 09-10-0798. The State also agreed to recommend
1
Defendant's girlfriend was charged in count two of the same
indictment with third-degree possession of CDS, buprenorphine HCL,
N.J.S.A. 2C:35-10(a)(1).
2 A-0684-15T4
a four-year term of imprisonment on count five of Indictment No.
09-10-0798, a consecutive eighteen-month term on count three of
Indictment No. 09-10-0798, and a concurrent four-year term on
Indictment No. 09-06-0493.2 The court accepted defendant's guilty
plea after ensuring compliance with Rule 3:9-2. On April 16,
2010, defendant was sentenced in accordance with the plea agreement
to an aggregate term of five-and-a-half years.
Subsequently, Indictment No. 09-10-0798 was dismissed with
prejudice on the State's motion as a result of "record-keeping"
irregularities by the arresting officer, Detective Christopher
Lambert. The County Prosecutor's Office determined that Detective
Lambert had violated protocol in connection with the recording of
information related to confidential informants. Following the
Office's review of those cases, the related charges were dismissed.
Although Detective Lambert was involved in both of defendant's
cases, it was determined that the "record-keeping" irregularities
only impacted Indictment No. 09-10-0798.
On August 25, 2011, with the State's consent, defendant
successfully moved to withdraw his guilty plea to Indictment No.
2
The State also agreed to defendant's release from jail until
sentencing with the condition that if defendant failed to appear
for sentencing, the State would be free to seek an extended term
sentence pursuant to N.J.S.A. 2C:44-3.
3 A-0684-15T4
09-06-0493 on the ground that he would have gone to trial rather
than plead guilty had he not been facing two indictments. With
the assistance of his second plea counsel, on October 20, 2011,
pursuant to a new plea agreement, defendant again pled guilty to
Indictment No. 09-06-0493 after it was reinstated. During the
plea allocution, defendant again admitted to unlawfully possessing
six Xanax pills in his girlfriend's apartment, which he intended
to sell. After ensuring compliance with Rule 3:9-2, the court
accepted defendant's guilty plea. On November 18, 2011, in
accordance with the plea agreement, defendant received a two-year
suspended sentence, N.J.S.A. 2C:43-2(b), with jail credits for 585
days spent in custody.
The following year, defendant was charged in a twenty-count
indictment, Indictment No. 12-05-0329, with first-degree
kidnapping, N.J.S.A. 2C:13-1(a) (counts one and two); first-degree
robbery, N.J.S.A. 2C:15-1 (counts three and four); second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts five and six);
second-degree burglary, N.J.S.A. 2C:18-2 (counts seven and eight);
third-degree theft, N.J.S.A. 2C:20-3 (counts nine, ten and
eleven); third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1)
(count twelve); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count thirteen); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
4 A-0684-15T4
(counts fourteen, fifteen and sixteen); second-degree conspiracy,
N.J.S.A. 2C:5-2 and 2C:15-1 (count seventeen); and second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7 (counts
eighteen, nineteen and twenty).
On July 31, 2014, with the assistance of his third plea
counsel, defendant pled guilty to count four as amended to second-
degree robbery.3 In exchange, the State agreed to recommend an
eight-year term of imprisonment, subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent sentence on
Indictment No. 09-06-0493. On September 5, 2014, defendant was
sentenced in accordance with the plea agreement. On Indictment
No. 09-06-0493, his suspended sentence was revoked and a concurrent
two-year prison sentence was imposed.
On December 18, 2014, defendant filed a timely petition for
PCR alleging that he was denied effective assistance of counsel
in connection with Indictment No. 09-06-0493 because he was
"misinformed" about the status of Detective Lambert and "forced
. . . to take probation" by his attorney. According to defendant,
Detective Lambert "was a corrupt cop . . . who was demoted,
3
At the plea allocution, defendant admitted threatening the use
of force to rob the victim during a home invasion with three co-
defendants. Defendant does not challenge the resolution of this
case in this appeal.
5 A-0684-15T4
suspended and now fired because he was doing illegal activities[.]"
Defendant asserted that his attorney was ineffective because he
failed to further explore or investigate Detective Lambert's
misconduct before urging him to plead guilty. Defendant was
assigned PCR counsel who filed an amended petition, an accompanying
brief, and two supporting certifications——an unsigned and undated
certification by defendant4 and a certification by defendant's
girlfriend dated April 28, 2015.
In the amended petition, defendant sought to have the
conviction and sentence imposed on Indictment No. 09-06-0493 set
aside and the matter set down for trial. Defendant asserted that
his plea counsels were ineffective because they failed to file
appropriate motions, specifically, a motion to suppress evidence
obtained as a result of an illegal search and a motion to exclude
statements made by defendant as a result of an unlawful
interrogation. Defendant also asserted that his attorneys were
ineffective for failing to file a motion to withdraw his guilty
4
At the PCR hearing, PCR counsel explained that in the course of
assembling the brief, an unsigned copy of defendant's
certification was inadvertently submitted. Although PCR counsel
presented a signed copy of the certification to the PCR court, the
unsigned and undated copy was submitted with this appeal.
6 A-0684-15T4
plea5 to Indictment No. 09-06-0493 and to obtain all jail credits
to which he was entitled.
In the certifications, defendant and his girlfriend certified
that the CDS was seized from his girlfriend's apartment by
Detective Lambert who unlawfully entered and searched the
apartment while they were in the shower together. They averred
that after the search, Detective Lambert coerced his girlfriend
to sign a consent to search form or be charged. Defendant
certified further that Detective Lambert obtained a statement from
him at the apartment while he was "in custody, under the influence"
and not advised of his "constitutional rights."
According to defendant, although he asked his attorneys to
file the requisite motions, his first plea counsel "declined to
file the appropriate motions, opting instead to pursue a
comprehensive plea bargain that would have disposed of Indictment
No. 09-06-0493 and Indictment [No.] 09-10-0798" and his second
plea counsel "was not willing to file the motions and advised that
the plea bargain was the best result [he] could obtain." In
addition, defendant averred that his third plea counsel was
ineffective because he failed to "secure an amendment to the
5
Because defendant's first guilty plea was successfully vacated,
this assertion would only pertain to defendant's second guilty
plea to Indictment No. 09-06-0493.
7 A-0684-15T4
[j]udgment of [c]onviction [JOC] that would have reflected the
court's determination" that he was entitled to 2373 days of jail
credit, rather than the 883 days reflected on the JOC.6
Contrary to the certifications, Detective Lambert reported
in his police report that he went to defendant's girlfriend's
apartment where he believed defendant was staying in order to
execute outstanding bench warrants against defendant. According
to Detective Lambert, defendant's girlfriend voluntarily signed a
consent to search form authorizing him to search the apartment
resulting in the seizure of the six Xanax pills.
On June 30, 2015, following oral argument, Judge Patricia M.
Wild rejected defendant's claims and denied his petition for PCR
without an evidentiary hearing in a comprehensive oral decision
from the bench. Judge Wild determined that defendant "fail[ed]
to establish that there [was] a reasonable likelihood that any of
his claims [would] succeed on the merits at an evidentiary hearing"
because "the evidence, even in a light most favorable to
[defendant]," indicated that "all of trial counsel's actions
[could] be reasonably viewed as pre-trial tactical decisions."
6
Defendant filed a pro se motion seeking to aggregate jail credits
from his 2009 conviction and apply the credits to his 2012
conviction. The motion was denied on April 21, 2015.
8 A-0684-15T4
Regarding defendant's assertion that his attorneys were
ineffective for failing to challenge the admissibility of his
statement to police, Judge Wild referred to the transcript of the
court proceeding after defendant successfully moved to withdraw
his guilty plea to Indictment No. 09-06-0493 during which his
first plea counsel advised the court:
Judge, just so the record is clear, . . .
[p]rior to discussing his plea with him I
reviewed the discovery with him. . . . And
in the discovery was a digital recording of
his statement that he gave the police
admitting that he was selling prescription
drugs. . . . And right on that digital
recording there's a recitation of his Miranda7
rights, which he waived, and gave a voluntary
statement, and it was that type of evidence
that I discussed with him . . . [w]hich
ultimately led to his decision to enter a
guilty plea.
Evaluating defendant's claims under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Judge Wild
concluded that plea counsel "did adequately consider a [Miranda]
motion and in his professional judgment believed it would be
without merit. . . . Therefore, not even the first prong is
satisfied in regard to the failure to file a [Miranda] motion[.]"
7
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
9 A-0684-15T4
Regarding the filing of a motion to suppress the CDS, Judge
Wild noted that "[e]ven after raising issues regarding the search
and claiming that Detective Lambert was crooked, which was well
after his initial guilty plea, defendant then pled guilty again
to the same charge after his amended plea agreement." The judge
explained:
When counsel fails to file a suppression
motion the defendant not only must satisfy
both parts of Strickland, but must also prove
that his Fourth Amendment claim was
meritorious, and the [c]ourt does not find
that there is such . . . proof here in this
case.
Certification[s] from [defendant] and
[his girlfriend] contest[] the facts in the
police report. [Defendant]'s extensive
criminal history would have given him great
exposure to an extended prison sentence on all
his charges had he gone to trial and been found
guilty. It was completely reasonable for
counsel to advise his client to take a plea
deal. Considering that the search was
authorized by a signed consent form, the
motion to suppress would likely have been
denied and, as a result, [defendant] would be
in a weak position at trial. It further
appears that [defendant]'s motion to suppress
would not be successful. His only evidence
is some record-keeping errors on the part of
Detective Lambert. This is not evidence that
Detective Lambert would do something so
improper and inappropriate as to force a
person to sign a consent form.
It was also not incumbent upon counsel
to investigate these issues as counsel was not
in . . . possession at that time of anything
that could possibly suggest that Detective
10 A-0684-15T4
Lambert forced [defendant's girlfriend] into
signing that consent form. The actions of
counsel were not deficient based upon the
standard for deficiency set forth in
Strickland, and petitioner fails to break the
strong presumption under the case law that
trial counsel provided the appropriate legal
assistance.
The court also rejected defendant's claim that "he was cajoled
into taking a plea[.]" The court reviewed the transcripts of the
respective plea hearings during which both trial judges "went over
the plea forms with [defendant] in a very detailed fashion, and
[defendant] . . . indicated in his responses" that he "knew his
plea deal" and was pleading guilty "voluntarily, knowingly, and
intelligently." The court noted:
In both instances, the initial plea and
the plea after the amended sentence,
[defendant] indicated that he was not coerced
in any way to making a guilty plea.
[Defendant] again sets forth no evidence here
to support his claim now that he was cajoled.
It's highly unlikely that he was cajoled once,
let alone twice. The second plea indicates
that he was not cajoled in the first plea, but
rather that he knew the seriousness of the
charges he was facing and the sentence he
would receive given his record. Again,
counsel's advice to enter the plea deal was
soundly reasonable considering the evidence
against the [defendant] and the time he would
have spent incarcerated had he gone to trial
and been found guilty.
The court rejected defendant's contention that "his is a case
where trial errors were so egregious the [c]ourt should presume
11 A-0684-15T4
prejudice," concluding instead that defendant had "not set forth
any . . . arguments that would qualify as being a complete denial
of representation" and had "not set forth any argument that trial
counsel committed . . . errors which our court[s] have already
established presume prejudice." The court explained "this is not
a case where prejudice can be presumed. The traditional two-prong
Strickland/Fritz8 test is appropriate, and since the [defendant]
was not successful in any of his arguments under [the]
Strickland/Fritz test, . . . [defendant]'s PCR will be denied."
The court issued a memorializing order on July 8, 2015. This
appeal followed.
Defendant raises the following arguments for our
consideration:
POINT I. THE PCR COURT'S ORDER THAT DENIED
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF MUST BE REVERSED BECAUSE DEFENDANT
CLEARLY RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN THE PROCEEDINGS BELOW.
A. DEFENSE COUNSEL FAILED TO FILE
MERITORIOUS PRE-TRIAL MOTIONS.
. . . .
B. ORIGINAL AND SUBSEQUENT PLEA
COUNSELS FAILED TO INVESTIGATE AND
DISCOVER DETECTIVE LAMBERT'S
HISTORY OF MISCONDUCT BEFORE URGING
DEFENDANT TO PLEAD GUILTY.
8
State v. Fritz, 105 N.J. 42 (1987).
12 A-0684-15T4
C. DEFENDANT'S SECOND PLEA COUNSEL
FAILED TO DISCLOSE CRITICAL
INFORMATION TO THE DEFENDANT PRIOR
TO THE TIME DEFENDANT PLED GUILTY.
POINT II. THE PCR COURT ABUSED ITS DISCRETION
WHEN IT DENIED DEFENDANT'S REQUEST FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE
ASSISTANCE OF COUNSEL.
We review the PCR court's findings of fact under a clear
error standard, and conclusions of law under a de novo standard.
See 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). Where
the PCR court's findings of fact are based on "live witness
testimony" we review such findings to determine whether they are
supported by sufficient credible evidence in the record. State
v. Nash, 212 N.J. 518, 540 (2013). However, where, as in this
case, "no evidentiary hearing has been held, we 'may exercise de
novo review over the factual inferences drawn from the documentary
record by the [PCR judge].'" State v. Reevey, 417 N.J. Super.
134, 146-47 (App. Div. 2010) (quoting Harris, supra, 181 N.J. at
421), certif. denied, 206 N.J. 64 (2011). While "[a]ssessing
[ineffective assistance of counsel] claims involves matters of
fact, . . . the ultimate determination is one of law[.]" Harris,
supra, 181 N.J. at 419.
13 A-0684-15T4
On appeal, defendant reiterates the arguments rejected by
Judge Wild. Defendant argues that his attorney was ineffective
for failing to file "a motion to suppress the evidence obtained
after an illegal search of [his girlfriend's] apartment" on the
ground that "Det. Lambert conducted an illegal search of the
premises and later forced [his girlfriend] to sign a consent form."
Defendant also argues that his attorney was ineffective for failing
to file "a pre-trial motion to exclude his incriminating
statements" on the ground that Detective Lambert "subjected him
to custodial interrogation without a Miranda warning" and his
intoxicated state raised "doubts as to whether he gave a voluntary
statement or if he voluntarily waived his Miranda rights."
According to defendant, because "Det. Lambert lacked credibility,"
he would have prevailed on the motions.
In addition, defendant argues that his first plea counsel was
ineffective for failing to investigate Detective Lambert's history
of misconduct to aid in mounting a defense, and his second plea
counsel was ineffective for failing to "inform him that Det.
Lambert [had been] fired by the police department[,]" thus
undermining the efficacy of his guilty plea. Defendant asserts
that his "factual allegations and legal arguments raised a prima
facie case of ineffective assistance of trial counsel and
therefore," Judge Wild erred in denying an evidentiary hearing "to
14 A-0684-15T4
develop his claims[.]" We disagree and affirm substantially for
the reasons set forth by Judge Wild in her well-reasoned opinion.
We add only the following brief comments.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Rather, trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of ineffective
assistance, material issues of disputed fact lie outside the
record, and resolution of the issues necessitate a hearing. R.
3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013), certif.
denied, 228 N.J. 502 (2017). "Rule 3:22-10 recognizes judicial
discretion to conduct such hearings." State v. Preciose, 129 N.J.
451, 462 (1992).
A PCR court deciding whether to grant an evidentiary hearing
"should view the facts in the light most favorable to a defendant
to determine whether a defendant has established a prima facie
claim." Id. at 462-63. "To establish a prima facie claim of
ineffective assistance of counsel, a defendant must demonstrate
the reasonable likelihood of succeeding under the test set forth
in [Strickland v. Washington, supra, 466 U.S. at 694, 104 S. Ct.
at 2068, 80 L. Ed. 2d at 698], and United States v. Cronic, 466
U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which [our
15 A-0684-15T4
Supreme Court] adopted in State v. Fritz, [supra, 105 N.J. at
58]." Id. at 463.
Under the Strickland standard, a defendant must make a two-
part showing. A defendant must show that trial counsel's
performance was both deficient and prejudicial. State v. Martini,
160 N.J. 248, 264 (1999). The performance of counsel is
"deficient" if it falls "below an objective standard of
reasonableness" measured by "prevailing professional norms."
Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064-65, 80
L. Ed. 2d at 693-94. This standard of "reasonable competence[,]"
Fritz, supra, 105 N.J. at 60, "does not require the best of
attorneys[.]" State v. Davis, 116 N.J. 341, 351 (1989).
A defendant must also show that the deficient performance
prejudiced the defense. Under this prong, to set aside a guilty
plea based on ineffective assistance of counsel, defendant must
establish "'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.'" State v. DiFrisco, 137
N.J. 434, 457 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)), cert. denied,
497 U.S. 1011, 110 S. Ct. 3258, 111 L. Ed. 2d 767 (1990). However,
to obtain relief, a defendant "'must convince the court that a
decision to reject the plea bargain would have been rational under
16 A-0684-15T4
the circumstances.'" State v. O'Donnell, 435 N.J. Super. 351, 371
(App. Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372,
130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).
"Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable." Fritz,
supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant bears the
burden of proving both prongs of an ineffective assistance of
counsel claim by a preponderance of the evidence. State v. Gaitan,
209 N.J. 339, 350 (2012), cert. denied, 568 U.S. 1192, 133 S. Ct.
1454, 185 L. Ed. 2d 361 (2013). Only in circumstances involving
"the complete denial of the right to counsel altogether, actual
or constructive[,]" can prejudice be presumed and the presumption
of ineffectiveness is warranted. Fritz, supra, 105 N.J. at 53.
Where a defendant asserts his attorney was ineffective for
failing to file a motion, he must establish that the motion is
meritorious. State v. Goodwin, 173 N.J. 583, 597 (2002). "It is
not ineffective assistance of counsel for defense counsel not to
file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619
(2007). "'[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
17 A-0684-15T4
certifications based on the personal knowledge of the affiant or
the person making the certification.'" Porter, supra, 216 N.J.
at 353 (quoting Cummings, supra, 321 N.J. Super. at 170).
Applying these principles, we are persuaded that Judge Wild
properly declined to conduct an evidentiary hearing and properly
denied defendant's petition for PCR. Defendant's challenge to the
effectiveness of his first plea counsel is specious because
defendant successfully withdrew his guilty plea after Indictment
No. 09-10-0798 was dismissed. Defendant's challenge to the
effectiveness of his second plea counsel is equally unavailing
because his entry of a guilty plea after he prevailed on his
withdrawal motion obviates a showing of prejudice. We do remand,
however, for resentencing on Indictment No. 09-06-0493 because a
two-year sentence of imprisonment is an illegal sentence as the
minimum sentence for a third-degree crime is three years. See
N.J.S.A. 2C:43-6(a)(3).
Affirmed, except for a limited remand for resentencing in
conformity with this opinion. We do not retain jurisdiction.
18 A-0684-15T4