STATE OF NEW JERSEY VS. VAN E. HUNTER (12-03-0320, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0062-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VAN E. HUNTER,

Defendant-Appellant.
_________________________

Submitted November 7, 2019 – Decided January 3, 2020

Before Judge Koblitz and Whipple.

On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 12-03-
0320.

Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).

Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Dana R. Anton, Senior
Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant appeals the July 17, 2018 order denying his petition for post -

conviction relief (PCR) without an evidentiary hearing. We affirm.

On June 29, 2012, defendant pled guilty to an amended charge of third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). In accordance with the plea

agreement, on August 24, 2012, defendant was sentenced to a 365-day flat

sentence which resulted in the dismissal of four other charges, including a

charge of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4).

In December 2015, defendant was charged in two separate indictments

with robbery. He applied to drug court, but his application was denied because

of his prior aggravated assault conviction.

Defendant filed a timely petition for PCR asserting he was denied

effective assistance from his trial counsel because she did not advise him that

by entering the guilty plea to aggravated assault, he would be automatically

barred from entry into drug court if he committed crimes in the future.

Defendant argued that had he known his conviction would have prevented drug

court admission he would not have pled guilty. This lack of information, he

asserted, is prima facie evidence of ineffective assistance of counsel and he is

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entitled to a hearing to address the merits of his petition. His petition was denied

without a hearing. This appeal followed.

On appeal defendant argues:

POINT ONE
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
THE SUBSTANCE OF THE LEGAL ADVICE PLEA
COUNSEL PROVIDED TO DEFENDANT
REGARDING THE LONG-TERM CONSEQUENCES
OF HIS GUILTY PLEA AND HOW IT WOULD
IMPACT HIS FUTURE INTO THE DRUG COURT
PROGRAM.

Claims of ineffective assistance of counsel are governed by the standards

set forth in Strickland v. Washington.1 See State v. Fritz, 105 N.J. 42, 58 (1987)

(adopting the Strickland standard in New Jersey). For a defendant to establish

a prima facie case of ineffective assistance of counsel under Strickland, the

defendant must show that defense "counsel's performance was deficient," and

that "there exists 'a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'" State v.

Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland v. Washington, 466

U.S. 668, 694 (1984)); see also State v. Allegro, 193 N.J. 352, 366 (2008).

1
Strickland v. Washington, 466 U.S. 668, 687 (1984).
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 "'The first prong of the [Strickland] test is satisfied by a showing that

counsel's acts or omissions fell outside the wide range of professionally

competent assistance considered in light of all the circumstances of the case.'"

Allegro, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).

To prove the second prong of Strickland, a defendant must prove "'that there is

a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different.'" Id. at 367 (quoting State v.

Loftin, 191 N.J. 172, 198 (2007)). The second prong is "an exacting standard:

'[t]he error committed must be so serious as to undermine the court's confidence

in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, 187 N.J. at

315).

Applying this standard, we reject defendant's arguments. First, we

recognize a defendant needs to be informed of certain consequences as a result

of the entry of a plea. In State v. Heitzman, 107 N.J. 603, 604 (1987), our Supreme

Court held that a "defendant need be informed only of the penal consequences of his

plea and not the collateral consequences . . . ." In State v. Bellamy, 178 N.J. 127,

138-39 (2003) (quoting Heitzman, 107 N.J. at 606 (Wilentz, C.J., dissenting)),

the court approved of Chief Justice Wilentz's observation in Heitzman, whether

a defendant should be advised of "'certain consequences of a guilty plea should

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not depend on ill-defined and irrelevant characterizations of those

consequences.'" In State v. Nunez-Valdez, 200 N.J. 129, 138 (2009), the court

noted we treat deportation similar to a penal consequence that requires notice to

defendant. All of these cases are strung together by one common thread, they

are all concerned with the consequences of the underlying conviction.

We find no support for the proposition that a defendant must be advised

of the potential consequences of future criminal activity. Whether one will be

foreclosed from a potential diversionary program in the event of a future crime is far

different from being exposed to additional loss of liberty or rights as a result of a

crime already committed. Holding otherwise would add to a counsel's duties an

obligation to advise on a plethora of consequences which have no logical stopping

point.

Second, to invalidate a guilty plea based on ineffective assistance of counsel,

a defendant must demonstrate "that '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) (citations

omitted) (alteration in original).

We agree with the PCR judge that because defendant was otherwise facing

a trial on four additional charges including a second-degree charge that would

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have exposed him to a much more serious sentence, it was unlikely the drug

court knowledge would have prevented him from entering the plea.

Affirmed.

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