NOT FOR PUBLICATION WITHOUT THE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-2855-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL WOZNICA,
Defendant-Appellant.
__________________________________
Submitted September 12, 2017 – Decided September 28, 2017
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 12-02-0355 and 12-03-0474.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah R. Terry, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan Berkow, Special
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
After indictment by a Middlesex County Grand Jury, defendant
Paul Woznica pled guilty to one count of third-degree conspiracy
to distribute with the intent to distribute a controlled dangerous
substance, N.J.S.A. 2C:5-2(a); three counts of fourth-degree
unlawful possession of a stun gun, N.J.S.A. 2C:39-3(h); one count
of second-degree unlawful possession of a firearm while
committing, attempting to commit, or conspiring to commit a
violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1; possessing a
controlled dangerous substance with the intent to distribute,
N.J.S.A. 2C:39-4.1; and one count of second-degree certain persons
not to have weapons, N.J.S.A. 2C:39-7(b)(1). He was sentenced in
accordance with the plea agreement to twelve years imprisonment
with an eight year term of parole ineligibility. He did not pursue
a direct appeal, but filed a petition for post-conviction relief
(PCR), which was denied on November 18, 2015. He now appeals from
the denial of PCR. We affirm.
The following facts are taken from the record. In September
2011, members of the Sayreville Police Department and the Middlesex
County Prosecutor's Office Narcotics Task Force were conducting
surveillance on two residences located in Sayreville and South
Amboy as part of the same investigation. An undercover officer
made contact with Samantha Gavron for purposes of purchasing
OxyContin. At Gavron's direction, the officer ultimately made
contact with Jessica Clark, whom the officer and Gavron met to
make a purchase at the South Amboy address. Before the meeting,
2 A-2855-15T2
members of the surveillance team observed defendant and Clark
leave the Sayreville residence and travel in a black Camaro,
operated by defendant, to the South Amboy residence where the
transaction took place.
In October 2011, the undercover officer contacted Clark and
met her at the Sayreville residence to make a second purchase of
OxyContin. A third transaction took place in a similar fashion
later that month.
On November 4, 2011, officers executed search warrants for
the Sayreville residence and the Camaro, as well as Clark and
defendant's persons. The warrants produced thirty-six clonazepam
pills, three diazepam tablets, eleven alprazolam pills, sixteen
bacterium pills, fifteen citalopram pills, fifteen oxycodone
pills, fifty grams of marijuana and an unidentified white
substance. The search also yielded airsoft guns, BB guns, starter
pistols, knives, police batons and stun guns. The Sayreville
residence was also equipped with surveillance, including cameras
on the roof and a window, and a monitor inside the front door.
After defendant's indictment, his guilty plea and sentencing
occurred before the same judge who addressed his subsequent PCR
petition. As a part of the sentencing, the judge found three
aggravating factors and no mitigating factors. Specifically, the
judge found a risk defendant would commit another offense, a prior
3 A-2855-15T2
record of convictions for serious offenses, and the need to deter
him and others from violating the law. After sentencing, defendant
filed a PCR petition and now appeals from the denial of PCR,
asserting the following arguments:
POINT I THE PCR COURT'S ORDER THAT DENIED
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF MUST BE REVERSED
BECAUSE THE DEFENDANT ESTABLISHED
THAT HE PLED GUILTY TO COUNT
FOURTEEN OF INDICTMENT NUMBER 12-
02-00355 WITHOUT AN ADEQUATE
FACTUAL BASIS FOR EACH ELEMENT OF
THE OFFENSE OR THE MATTER SHOULD BE
REMANDED FOR THE PROPER
CONSIDERATION OF THE ISSUE.
POINT II THE MATTER SHOULD ALSO BE REMANDED
BECAUSE THE PCR COURT ERRONEOUSLY
DETERMINED THAT THE ESCAPE VALVE
EXCEPTION TO THE GRAVES ACT MINIMUM
TERM REQUIREMENT DOES NOT APPLY TO
THE SECOND DEGREE UNLAWFUL
POSSESSION OF A FIREARM WHILE
POSSESSING A CONTROLLED DANGEROUS
SUBSTANCE WITH THE INTENT TO
DISTRIBUTE CHARGE, N.J.S.A. 2C:39-
4.1 (COUNT FOURTEEN).
POINT III 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's Gross
Misrepresentation Of The
Defendant During The Plea
Allocution For Count Fourteen
Caused Defendant To Enter Into
4 A-2855-15T2
An Involuntary, Unknowingly
And Unintelligent Guilty Plea.
B. Defense Counsel's Failure To
File A Meritorious Escape
Valve Application In
Accordance With N.J.S.A.
2C:43-6.2 Prejudiced The
Defendant.
C. Sentencing Counsel Provided
Ineffective Assistance Of
Counsel When Counsel Failed To
Ask The Court To Find Statutory
Mitigating Factor, N.J.S.A.
2C:44-1(b)(12).
D. Defense Counsel Failed To File
A Direct Appeal To Challenge
Defendant's Convictions And
Sentences (Not Raised Below).
E. PCR Counsel Failed To Fully
Raise The Issue Of Prior
Counsel's Failure To File An
Appeal (Not Raised Below).
POINT IV 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.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,
593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).
The process affords an adjudged criminal defendant a "last chance
to challenge the fairness and reliability of a criminal verdict."
State v. Nash, 212 N.J. 518, 540 (2013); see also R. 3:22-1.
5 A-2855-15T2
"Post-conviction relief is neither a substitute for direct appeal,
Rule 3:22-3, nor an opportunity to relitigate cases already decided
on the merits, Rule 3:22-5." Preciose, supra, 129 N.J. at 459;
see also State v. Echols, 199 N.J. 344, 357 (2009).
"[W]here the [PCR] court does not hold an evidentiary hearing,
we may exercise de novo review over the factual inferences the
trial court has drawn from the documentary record." State v.
O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). Thus, if
warranted, we may "conduct a de novo review of both the factual
findings and legal conclusions of the PCR court." State v. Harris,
181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.
2973, 162 L. Ed. 2d 898 (2005) (emphasis omitted).
I.
Defendant challenges the PCR court's denial of his request
to vacate his plea. Defendant claims his plea colloquy lacked an
adequate factual basis for one offense. This claim could have
been raised in the trial court or on direct appeal, and thus is
barred under Rule 3:22-4(a). However, defendant also alleges his
trial counsel was ineffective for not raising the claim.
Regardless, defendant cannot meet the standards for
ineffectiveness because the claim is meritless.
Defendant challenges his plea to unlawful possession of a
firearm while committing or conspiring to commit a violation of
6 A-2855-15T2
N.J.S.A. 2C:35-5. He argues his plea lacked an adequate factual
basis because there was no predicate count charging him with
conspiracy, distribution or possession with intent to distribute
drugs on November 4, 2011. Defendant argues there was no factual
basis established demonstrating he possessed OxyContin with intent
to distribute and that he distributed it or agreed to distribute
it, because he had a prescription for the medication. Defendant
asserts his plea counsel "provided inadequate representation when
he propounded an ambiguous and misleading question to him during
the plea allocution for Count Fourteen [N.J.S.A. 2C:39-4.1]."
The PCR judge found defendant stated an adequate factual
basis that he violated N.J.S.A. 2C:39-4.1. The judge noted the
statute requires that defendant possessed a firearm while
"committing, attempting to commit or conspiring to commit" a
violation of N.J.S.A. 2C:35-5. The judge found defendant
acknowledged sufficient facts to constitute the statute's
essential elements because he admitted possessing a firearm while
conspiring to distribute drugs. We agree and therefore reject his
ineffectiveness claim.
To show ineffective assistance of counsel, a defendant must
satisfy the two-pronged test of Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State
v. Fritz, 105 N.J. 42, 58 (1987). "The defendant must demonstrate
7 A-2855-15T2
first that counsel's performance was deficient, i.e., that
'counsel made errors so serious that counsel was not functioning
as the "counsel" guaranteed the defendant by the Sixth Amendment.'"
State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland,
supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
The "defendant must overcome a strong presumption that counsel
rendered reasonable professional assistance." Ibid. Second, "a
defendant must also establish that the ineffectiveness of his
attorney prejudiced his defense." Ibid. "The defendant must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 279–80 (quoting Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
In the context of a guilty plea, 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.'" State v. DiFrisco, 137 N.J. 434, 457 (1994)
(alteration in original) (citations omitted), cert. denied, 516
U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (quoting Hill
v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d
203, 210 (1985)). Defendant must also show "a decision to reject
8 A-2855-15T2
the plea bargain would have been rational under the circumstances."
Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176
L. Ed. 2d 284, 297; see State v. Maldon, 422 N.J. Super. 475, 486
(App. Div. 2011).
N.J.S.A. 2C:39-4.1(a) states:
Any person who has in his possession any
firearm while in the course of committing,
attempting to commit, or conspiring to commit
a violation of . . . N.J.S.2C:35-5, . . . is
guilty of a crime of the second degree.
The statute's plain language does not require defendant to plead
to a separate violation of N.J.S.A. 2C:35-5 on November 4, 2011.
Moreover, defendant's allocution by plea counsel demonstrates he
provided an adequate factual basis for a guilty plea under N.J.S.A.
2C:39-4.1.
It is important to note defendant had already admitted
conspiring with Clark on an earlier date to distribute Oxycodone
out of the Sayreville house in violation of N.J.S.A. 2C:35-5. He
engaged in the following colloquy with defense counsel:
Q: [O]n or about the 29th day of September
2011 do you remember being in the City of South
Amboy and/or the Borough of Sayreville . . .
?
A: Yes.
Q: And on that day . . . -- were you involved
in someone being involved in drug activity
that day?
A: Yes.
Q: In fact, you were the driver that
facilitated the delivery of drugs that day?
9 A-2855-15T2
A: Yes.
Q: And you knew that by driving you were
. . . facilitating the drug deal that day?
A: Yes.
Q: And that was an agreement you made with
the person you were going to drive, that you
would provide that transportation for her to
do that?
A: Yes.
Q: And you realize that's conspiracy to
distribute CDS, right?
A: Yes.
In a colloquy with the prosecutor, defendant clarified that
he was conspiring with Clark:
Q: . . . Who was that other person you were
with?
A: Oh. Jessica Clark.
. . . .
Q: And both Samantha and Jessica had
discussed making this sale with you?
A: Yes.
Defendant’s admission he had conspired with Clark to
distribute drugs out of the Sayreville house set the stage for the
colloquy with defense counsel concerning his violation of N.J.S.A.
2C:39-4.1:
Q: Now, regarding Count 14, during that
search drugs were found in the house?
A: Yes.
Q: Specifically Oxycontin?
A: Yes.
Q: Which is an illegal -- and you didn't
have a prescription for -- a legal
prescription for those Oxycontins that were
in the house? You were going to sell --
somebody was going to sell or distribute them?
A: Yes.
10 A-2855-15T2
Q: And located in the bedroom of that house
was a Daisy BB gun?
A: Yes.
Q: And while you didn't know it at the time,
you now know that that Daisy BB gun qualifies
as a firearm under the laws of the State of
New Jersey?
A: Yes.
Q: And you acknowledge that you . . . aren't
allowed to own a Daisy BB gun in this state,
is that correct?
A: Correct.
In the ensuing discussion of the legality of firearm
possession in the home, the trial court intervened to make clear
defendant had to admit to "committing, attempting to commit, or
conspiring to commit a violation of N.J.S.A. 2C:35-5." N.J.S.A.
2C:39-4.1(a).
THE COURT: Okay. But the indictment does say
["]did unlawfully knowingly possess a firearm
while in the course of committing, attempting
to commit, or conspiring to commit["] --
[DEFENSE COUNSEL]: Okay. Well, Your Honor,
I’ll clear that up if I can.
THE COURT: Okay.
Defense counsel then asked about the drug activity:
Q: Even though it was in your house you
understand that when drug activity is
involved, under our law firearms are not
allowed in the house?
A: Yes.
The prosecutor followed up:
Q: And that firearm, that BB gun belonged
solely to you?
A: Yes.
11 A-2855-15T2
Q: And it was located in your bedroom when
the police found it?
A: Yes.
Q: And that was the bedroom where you slept?
A: Yes.
Q: And nearby were the drugs that you or
others in your house intended to distribute?
A: Yes.
Q: And so the weapon and the drugs were both
accessible to you at the same time?
A: Yes.
Thus, defendant admitted to possessing, in his house, a
firearm near the OxyContin, which he or someone in the house were
going to distribute. Given his earlier admission he conspired to
distribute such drugs with Clark out of the same house, his
continuing guilty plea after the court’s reminder he had to admit
conspiring to commit a drug offense, and his subsequent admissions
of drug activity in the house and that he or the other occupants
had intent to distribute, his colloquy was properly understood as
an admission that he was involved in that drug activity and that
he was again conspiring with Clark, the other occupant of the
house, to distribute the OxyContin.
Defendant admits possessing OxyContin in the house, but
claims he had a valid prescription for it. The existence of a
valid prescription does not negate the factual basis provided at
defendant's plea colloquy. Defendant may have possessed a valid
prescription for OxyContin, but he did not have license to sell
12 A-2855-15T2
it. The PCR court properly denied defendant PCR relief on this
claim.
The PCR court also correctly denied defendant's ineffective
assistance claim regarding the mechanics of his allocution.
Indeed, when taken in context, defendant has not demonstrated his
claim the allocution was ambiguous, misleading, and caused him to
enter the plea unknowingly.
Furthermore, as the PCR judge noted, the indictment was not
deficient, defendant did not qualify for the Graves Act exception,
and thus there was,
no indication, let alone a reasonable
probability, that the Defendant would not have
pleaded guilty absent his counsel's alleged
errors. . . . Had the defendant continued to
trial, he would have risked being found guilty
of all twenty-one (21) charges in the relevant
indictment, which included nine (9) third-
degree, and five (5) fourth-degree charges.
Considering the significant sentencing
exposure that the Defendant would have faced
had he been convicted, . . . the Defendant has
not established a reasonable probability that
he would not have pleaded guilty and insisted
on going to trial.
We agree. Defendant's plea allocution and the charges he was
facing demonstrate the validity of the plea and the effectiveness
of his counsel.
Defendant next challenges his sentence claiming the PCR court
erroneously found the Graves Act escape valve exception did not
13 A-2855-15T2
apply to the N.J.S.A. 2C:39-4.1 charge. We disagree. Because a
direct challenge to his sentence is barred by Rule 3:22-4(a),
defendant must show his trial counsel was ineffective for failing
to seek the Graves Act escape valve. Since defendant had no
reasonable probability of qualifying for such relief, this claim
lacks merit.
Our Supreme Court has stated:
The Graves Act provides, generally, that one
who uses or possesses a firearm while
committing, attempting to commit, or fleeing
after the commission of, certain serious
offenses specified in that Act shall be
mandatorily sentenced to prison for a term
that includes at least three years of parole
ineligibility. . . . The intent of the Act
is manifest: at the very least, to ensure
incarceration for those who arm themselves
before going forth to commit crimes.
[State v. Des Marets, 92 N.J. 62, 64, 68
(1983).]
We have noted that the Graves Act, specifically N.J.S.A.
2C:43-6.2, provides a so-called "'escape valve' for the
extraordinary cases where the mandatory three-year ineligibility
term was not in the 'interests of justice.'" State v. Alvarez,
246 N.J. Super. 137, 145 (App. Div. 1991). We also have stated:
N.J.S.A. 2C:43-6.2 provides that the
prosecutor may make a motion before the
assignment judge for a finding that the
imposition of the mandatory minimum term under
N.J.S.A. 2C:43-6(c) does not serve the
interest of justice, whereupon "the assignment
14 A-2855-15T2
judge shall place the defendant on probation
pursuant to" N.J.S.A. 2C:43-2b(2), or
alternatively reduce [the] mandatory minimum
term of parole ineligibility to one year. The
statute continues:
The sentencing court may also refer
a case of a defendant who has not
previously been convicted of an
offense under that subsection to the
assignment judge, with the approval
of the prosecutor, if the sentencing
court believes that the interests of
justice would not be served by the
imposition of a mandatory minimum
term.
[State v. Ginty, 243 N.J. Super. 39, 41 (App.
Div. 1990). ]
In circumstances where the State has not sought the exception,
the defendant may not just challenge the
prosecutor's decision in a conclusory manner;
he must make a showing of arbitrariness
constituting an unconstitutional
discrimination or denial of equal protection
constituting a "manifest injustice," and
should be required to do so by moving papers
designed to convince the Assignment Judge that
any kind of hearing on the issue is warranted.
Cf. R. 3:21-10(c). A hearing would be
conducted only if the Assignment Judge "after
review of the materials submitted with the
motion papers, concludes that a hearing is
required in the interests of justice."
[Alvarez, supra, 246 N.J. Super. at 148-49
(citations omitted).]
Defendant asserts the PCR judge erroneously declared him
ineligible for the escape valve relief because the judge mistakenly
concluded N.J.S.A. 2C:39-4.1 was not an offense which qualified
15 A-2855-15T2
for the exception. The judge may have been mistaken in this
regard, but we conclude defendant was not eligible for the escape
valve because the State neither sought the exception nor did
defendant's circumstances support the judge making the referral
to the Assignment Judge.
Indeed, the PCR judge recounted the State's position on the
exception, noting "[t]he State contends that its refusal would not
be arbitrary because the Defendant's record boasts over two dozen
juvenile adjudications, adult arrests, and indictable convictions
and because authorities found numerous weapons as well as a home
surveillance system at the scene of the instant crime." The PCR
judge then noted defendant "failed to present the required prima
facie elements for arbitrariness or equal protection of rights."
We see no reason to disagree with the PCR judge's findings
in this regard. Given the list of prior adjudications and
convictions as well as the facts underlying defendant's instant
conviction, namely, the existence of weapons and the surveillance
set up on his residence, we fail to see the arbitrary nature of
the State or the PCR judge's refusal to seek the escape valve.
Defendant also asserts an ineffective assistance of counsel
based on the alleged failure of trial counsel to seek mitigating
factor twelve, the failure to appeal the convictions and the
16 A-2855-15T2
sentence, and PCR counsel's failure to raise the issue of plea
counsel's failure to appeal.
Defendant's claim his counsel was ineffective for failing to
seek mitigating factor twelve is unavailing.1 N.J.S.A. 2C:44-
1(b)(12) provides a court may consider "[t]he willingness of the
defendant to cooperate with law enforcement authorities" as a
mitigating factor in sentencing. As noted above, the sentencing
judge found three aggravating and no mitigating factors. The same
judge adjudicating defendant's PCR petition explained if trial
counsel had asked for mitigating factor twelve, the judge would
have given it “slight weight” because she still "would have found
that the aggravating factors substantially outweighed the
mitigating factors." Therefore, we reject defendant's claim that
his attorney was ineffective because he failed to seek a finding
of mitigating factor twelve.
Lastly, we reject defendant's contention that he was denied
the effective assistance of counsel because his attorney failed
to pursue a direct appeal of the convictions or the sentence.
Defendant did not submit an affidavit or certification stating he
directed counsel to file an appeal. R. 3:22-8. Moreover,
1
The PCR court's decision notes defendant's ineffective assistance
of counsel claim initially alleged the failure to seek application
of mitigating factors one and twelve. However, on appeal he has
only raised an issue with the application of factor twelve.
17 A-2855-15T2
defendant has not shown that he would have prevailed on a direct
appeal, if it had been filed.
II.
Defendant also argues the PCR court abused its discretion by
denying him an evidentiary hearing to address his ineffective
assistance of counsel claims. We disagree.
A PCR court need not grant an evidentiary hearing unless "a
defendant has presented a prima facie [case] in support of post-
conviction relief." State v. Marshall, 148 N.J. 89, 158
(alteration in original) (citation omitted), cert. denied, 522
U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish
such a prima facie case, the defendant must demonstrate a
reasonable likelihood that his or her claim will ultimately succeed
on the merits." Ibid. The court must view the facts "in the
light most favorable to defendant." Ibid. (citation omitted);
accord R. 3:22-10(b). Because defendant failed to establish a
reasonable likelihood of success on his claims of ineffective
assistance of counsel, an evidentiary hearing was not required.
Affirmed.
18 A-2855-15T2