STATE OF NEW JERSEY VS. EDUARDO CALDERON-MARIN (12-05-0397, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1758-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDUARDO CALDERON-MARIN,
a/k/a EDUARDO G. CALDERON, and
EDUARDO G. MARIN,

Defendant-Appellant.
__________________________________

Submitted October 30, 2018 – Decided December 3, 2018

Before Judges Suter and Firko.

On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 12-05-
0397.

Michael S. Allongo, attorney for appellant (Michael J.
Cennimo, on the brief).

Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Thomas G. Walsh, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Eduardo Calderon-Marin appeals from an order denying his

motion to withdraw his guilty plea and his petition for post-conviction relief

(PCR) without an evidentiary hearing. We affirm.

I.

On April 28, 2012, after defendant was stopped by a South Bound Brook

police officer, he "took off" when the officer exited his vehicle and made several

turns before parking outside of defendant's residence. He was issued a summons

for being an unlicensed driver, N.J.S.A. 39:3-10(b), and other violations not

pertinent to our review.

In May 2012, the Somerset County Grand Jury indicted defendant with

third-degree eluding law enforcement officer by means of flight, N.J.S.A.

2C:29-2(b) (count one), and six motor vehicle offenses. Thereafter, defendant

pled guilty to driving while suspended, N.J.S.A. 39:3-40, and unlicensed

operation of a motor vehicle, N.J.S.A. 39:3-10(b). He was sentenced to three

years of probation with 180 days incarceration in the Somerset County jail,

which equated to time served. An Immigration Customs Enforcement (I.C.E.)

detainer was lodged against defendant while he was incarcerated, which resulted

in elimination of the community service requirement and dismissal of one of the

motor vehicle summonses. Defendant did not appeal his conviction or sentence.

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At all relevant times during these proceedings, defendant was represented by

Richard P. Schubach, Esq., who is now deceased.

Judge Kevin M. Shanahan heard oral argument on defendant's PCR

petition and motion on October 31, 2017, and issued a detailed thirty-three page

written opinion denying both applications. The judge rejected defendant's claim

that he simply "took off" during the stop, and had no intent to elude police,

reasoning that:

The factual basis provided by [defendant] on October
5, 2012 was more than sufficient to satisfy every
element of the crime, and therefore trial counsel could
not have been ineffective in eliciting said factual basis.

In relying upon testimony elicited during the plea colloquy, the judge

considered the following questions posed to defendant by Mr. Schubach:

Q: Mr. Calderon-Marin, directing your attention to
April 28th of 2012, . . . [were] you operating a
motor vehicle in the Borough of South Bound
Brook at approximately 7:42 p.m. at night?

A: Yes.

Q: At around that time a South Bound Brook police
officer in a marked vehicle stopped your motor
vehicle, correct?

A: Correct.

Q: And when I say your motor vehicle[,] I mean the
motor vehicle you were driving, operating?

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A: Yes.

Q: And when the police officer came and
attempt[ed] to approach your vehicle[,] you put
your motor vehicle in gear and took off?

A: Yes.

Q: You made various turns and then you finally
stopped outside where your residence was, is that
correct?

A: Yes.

Q: And you knew you should have stopped for the
police officer when he first stopped your car,
correct?

A: Yes.

Q: And you knew you shouldn't have taken off when
the officer approached your vehicle, correct?

A: Yes.

Q: But you did take off from the officer, correct?

A: Yes.

Q: And you knew that your driver's license was
suspended?

A: Yes.

Q: You had no privileges in the State of New Jersey
to operate a motor vehicle.

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 A: Yes.

Q. And you didn't have a valid New Jersey driver's
license, correct?

A. Correct.

Q. And you know that because four days earlier[,]
April 24th[,] you were stopped by a Bridgewater
police officer and issued summons for being[,]
among other things[,] driving while revoked and
being an unlicensed driver, correct?

A. Correct.

The judge concluded that defendant's intent was clear, based upon all of

the above findings of fact, stating that:

[defendant] knew he was stopped by a police officer
and after being signaled to stop, by virtue of his own
admission . . . the fact that it was a marked police car
that effectuated the stop[,] and due to the fact that
[defendant] did, at first, pull over when stopped by
police.

Defendant never alleged that he "unconsciously and unintentionally eluded the

police officer," and the judge was convinced that "counsel was not ineffective

in eliciting a proper factual basis from defendant." The judge also found that

"[defendant] should have had a heightened sense of awareness of his need to

stop due to being pulled over and issued summonses for driving while revoked

and being an unlicensed driver only four days prior."

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 II.

Judge Shanahan next found that defendant failed to establish a prima facie

case of ineffective assistance of counsel with respect to his remaining

allegations. These included defendant's claims that his counsel did not apply for

Pre-Trial Intervention (PTI); and that his attorney did not timely file a motion

to withdraw the plea closer in time to the date of plea or sentencing; or file an

appeal. Based on the detailed findings set forth in his opinion, Judge Shanahan

concluded that defendant failed to satisfy the two-prong test of Strickland v.

Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial

counsel's performance was deficient and that, but for the deficient performance,

the result would have been different.

On appeal, defendant presents the following point headings for our

consideration:

POINT I

THE COURT COMMITTED HARMFUL ERROR IN
RULING THAT THE FACTUAL BASIS FOR THE
GUILTY PLEA WAS ADEQUATE BECAUSE THE
PLEA DID NOT IN FACT ADDRESS A
NECESSARY ELEMENT OF THE OFFENSE,
NAMELY THE INTENT TO ELUDE LAW
ENFORCEMENT.

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POINT II

THE COURT COMMITTED HARMFUL ERROR IN
RULING THAT COUNSEL'S FAILURE TO APPLY
PETITIONER TO PTI WAS SOUND STRATEGY
SINCE THE COURT PREMISED THIS RULING ON
THE INCORRECT AND UNSUPPORTED
SUPPOSITION THAT PETITIONER'S
IMMIGRATION STATUS COMBINED WITH HIS
HISTORY OF TRAFFIC OFFENSES WOULD HAVE
PRECLUDED HIM FROM BEING ACCEPTED TO
PTI.

POINT III

THE COURT COMMITED HARMFUL ERROR IN
RULING THAT PETITIONER FAILED TO
ESTABLISH A COLORABLE CLAIM OF
INNOCENCE BECAUSE THE COURT
INCORRECTLY RULED THAT THE FACTUAL
BASIS OF THE GUILTY PLEA WAS ADEQUATE
AND THEREFORE CONSTITUTED AN
ADMISSION OF GUILT.

POINT IV

THE COURT ERRED IN RULING THAT
PETITIONER FAILED TO PROVE A PRIMA FACIE
CASE OF INEFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE THIS RULING WAS
PREMISED ON ASSUMPTIONS AND
CONJECTURE REGARDING COUNSEL'S
DECISIONS AND CONDUCT THAT ARE NOT
SUPPORTED BY THE RECORD OR BY ANY
OTHER EVIDENCE, THUS CONSTITUTING PLAIN
ERROR (NOT RAISED BELOW).

A-1758-17T2
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 III.

When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, entitlement to the requested relief.

State v. Nash, 212 N.J. 518, 541 (2013) (citing State v. Preciose, 129 N.J. 451,

459 (1992)). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he was denied the effective assistance of counsel." State v. Cummings, 321

N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant

evidentiary hearings and make a determination on the merits only if the

defendant has presented a prima facie claim of ineffective assistance. Preciose,

129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the

defendant 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, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). The

United States Supreme Court has extended these principles to a criminal defense

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attorney's representation of an accused in connection with a plea negotiation.

Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S. 134, 144

(2012).

There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, Fritz, 105 N.J. at 52, a defendant must demonstrate with "reasonable

probability" that the result would have been different had he received proper

advice from his trial attorney. Lafler, 566 U.S. at 163 (citing Strickland, 466

U.S. at 694).

"[F]or mixed questions of law and fact, [this Court] give[s] deference . . .

to the supported factual findings of the trial court, but review[s] de novo the

lower court's application of any legal rules to such factual findings." (citing

State v. Harris, 181 N.J. 391, 416 (2015) (alterations in original)).

With respect to defendant's argument that the factual basis for the plea

was inadequate, we disagree. We note that most of the questions asked by

counsel before the court accepted the plea called for a monosyllabic yes or no

response, and that defendant provided an affirmative answer where appropriate.

He admitted that he "took off" once he had been signaled to stop, yet claims this

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does not constitute an intent to elude or evade as a necessary element pursuant

to N.J.S.A. 2C:29-2(b). We disagree. The statute provides proof beyond a

reasonable doubt that defendant:

knowingly fle[d] or attempt[ed] to elude any police or
law enforcement officer after having received any
signal from such officer to bring the vehicle or vessel
to a full stop commits a crime of the third degree;
except that, a person is guilty of a crime of the second
degree if the flight or attempt to elude creates a risk of
death or injury to any person.

In his PCR petition, defendant asserted that his trial counsel was

ineffective by allowing him to plead guilty to the eluding violation since he did

not have the requisite intent to elude the officer at the time of the stop, relying

upon State v. Mendez, 345 N.J. Super. 498 (App. Div. 2001). In Mendez, we

noted that "the culpability requirement of the conduct element of eluding is

'knowingly' rather than 'purposely'''. Id. at 509. Thus, the State was only

required to prove he was "aware" that he was fleeing the officer. Ibid.

Judge Shanahan duly found that defendant's responses made "clear that he

knew he was stopped by a police officer after being signaled to stop, by virtue

of his own admission, by virtue of the fact that it was a marked police car that

effectuated the stop, and due to the fact that [defendant] did, at first, pull over

when stopped by police." The judge also found that [defendant] "admitted to

A-1758-17T2
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committing the act of fleeing or attempting to elude." The judge's analysis was

correct. We therefore disagree with defendant's contention that the factual basis

of the plea was inadequate.

IV.

We next address whether trial counsel's actions were deficient in failing

to seek defendant's entry into PTI. Defendant argues that his lack of a prior

criminal record, and the nature and circumstances of the offenses, warranted at

least an attempt by his counsel to secure PTI. He further argues, citing State v.

Green, 407 N.J. Super. 95, 98 (App. Div. 2009), that, "[t]he PTI Guidelines

explicitly provide that all defendants must be permitted to apply . . . ."

Judge Shanahan appropriately determined that defendant "had a lengthy

history of motor vehicle offenses, including several suspended license

violations, and an I.C.E. detainer was lodged against him while he was in jail."

In relying upon State v. Watkins, 193 N.J. 507, 513 (2008), the judge

noted:

The primary purpose of [PTI] is to assist in the
rehabilitation of worthy defendants, and, in the process,
to spare them the rigors of the criminal justice system.
Eligibility is broad and includes all defendants who
demonstrate the will to effect necessary behavioral
change such that society can have confidence that they
will not engage in future criminality.

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 [(quoting N.J.S.A. 2C:43-12(e).]

The judge highlighted defendant's extensive history of motor vehicle

violations committed just four days prior to the instant offense, for being an

unlicensed driver, failing to keep right, operating a vehicle while his license was

suspended, and not having a liability or insurance card. Indeed, the judge found

this conduct amounted to "a continuing pattern of anti-social behavior[,]"

pursuant to N.J.S.A. 2C:43-12(e)(8). Further, defendant's "status as an illegal

immigrant surely militated against the likelihood of PTI" as noted by the judge.

Deportation seemed inevitable here, and defendant acknowledged this on the

record during the guilty plea colloquy. Compliance with PTI would have been

physically impossible due to the I.C.E. detainer. We agree with the judge that

"it was sound trial strategy to not apply to PTI, as [defendant's] hypothetical

application had a strong likelihood of being rejected given his continuing pattern

of anti-social behavior . . . ."

There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not

presumed, Fritz, 105 N.J. at 52, a defendant must demonstrate with "reasonable

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probability" that the result would have been different had he received proper

advice from his trial attorney. Lafler, 566 U.S. at 163 (citation omitted).

As noted, our standard of review gives deference to the PCR judge's fact

findings. Nash, 212 N.J. at 540. "In such circumstances we will uphold the

PCR court's findings that are supported by sufficient credible evidence in the

record." Ibid. Here, defendant has not shown that Judge Shanahan's findings

were "'so wide of the mark' as to result in a manifest injustice." State v. J.D.,

211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)).

Judge Shanahan also appropriately determined that defendant's remaining

ineffective assistance of counsel arguments were without sufficient merit under

the Strickland standard to present a prima facie case. See Cummings, 321 N.J.

Super. at 170. We agree.

We have considered defendant's contentions in light of the record and

applicable legal principles and conclude that they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm

substantially for the reasons expressed by Judge Shanahan in his well -reasoned

written opinion.

Affirm.

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