NOT FOR PUBLICATION WITHOUT THE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-5543-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PRINCE ALVARADO a/k/a
P GOD, P, and NELSON TROY
HOLLIDAY,
Defendant-Appellant.
___________________________
Submitted December 9, 2019 – Decided January 3, 2020
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 07-02-
0238 and 07-02-0240.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson David Harkov, Designated
Counsel, on the brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Joie D. Piderit,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Prince Alvarado appeals from a June 27, 2018 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm substantially for the reasons expressed by Judge
Colleen M. Flynn in her comprehensive written opinion.
I.
We glean the following facts from the plea hearing. On August 26, 2006,
defendant was involved in a dispute altercation in Sayreville. At that point in
time he was unarmed. Following the dispute, defendant and others proceeded
to a different location in Sayreville.1 By that point, defendant had acquired a
firearm. While at the second location, defendant discharged multiple rounds
from the firearm toward the ground in the direction of a group of people. The
group included Shukir London, who was unarmed and had not physically
attacked defendant. Some of the bullets ricocheted off the pavement and struck
London and an innocent bystander, named Victoria Mierzejewski, in their legs.
Defendant does not contest these facts. He contends, however, that he did
not intend to kill or injure anyone. Rather, he insists that he discharged the
1
The two locations were a QuickChek convenience store and a White Castle
restaurant. It is not clear from the record which was the first or second location.
A-5543-17T1
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firearm because London had threatened him, and he believed it would defuse the
situation. Despite this belief, he testified that his actions created a risk that
someone would be killed. At the time of the incident, defendant knew he was
not permitted to possess a firearm due to a prior conviction.
On February 1, 2007, a Middlesex County Grand Jury returned Indictment
No. 07-02-0238 charging defendant with four counts of first-degree attempted
murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) (counts one, three, five, and seven);
four counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts
two, four, six, and eight); third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b) (count nine); and second-degree possession of a weapon for
unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten). The grand jury also returned
Indictment No. 07-02-0240 charging defendant with second-degree certain
persons not to have a firearm, N.J.S.A. 2C:39-7(b).
Defendant failed to appear for a pre-arraignment conference. He was
apprehended two years later in Florida and arraigned on January 11, 2010.
On March 31, 2010, defendant entered into a plea agreement. He pleaded
guilty to count one (attempted murder) and an amended count six (third-degree
aggravated assault with a deadly weapon) of Indictment No. 07-02-0238 and
count one (certain persons not to have a firearm) of Indictment No. 07-02-0240,
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in exchange for a recommended sentence of two concurrent ten-year terms under
the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on Indictment No. 07-
02-0238, consecutive to a five-year term subject to a five-year period of parole
ineligibility, on Indictment No 07-02-0240. On May 24, 2010, defendant was
sentenced in accordance with the plea agreement.
During the plea hearing, defendant acknowledged initialing and signing
the plea form. He indicated that he understood the questions on the plea forms
and that his answers were truthful. He confirmed that he was pleading guilty
because he committed the offenses. He affirmed that no one had forced,
coerced, or threatened him or made any promises to get him to plead guilty. He
acknowledged the rights he was waiving by pleading guilty. He confirmed
understanding he was pleading guilty to NERA offenses that mandated five
years of parole after release. Defendant also confirmed reviewing the NERA
and Graves Act plea forms with counsel.
Defendant acknowledged he had some college education and was not
under the influence of any drugs or alcohol that would impair his judgment
ability. Defendant confirmed more than once that he was satisfied with trial
counsel's legal advice. He indicated that he did not have any questions of the
court, the prosecutor, or trial counsel. Defendant also indicated that he had
A-5543-17T1
4
enough time to think about and discuss the plea agreement with trial counsel.
When asked if he knew "fully well what [he] was getting into," defendant
answered, "Yes." When asked by the court if the aggregate sentence was a ten-
year prison term with a consecutive five-year term subject to a five-year period
of parole ineligibility, defendant answered, "Yes." The court accepted the plea
and factual basis, finding they were "freely and voluntarily made without force
or coercion."
Defendant appeared for sentencing on May 24, 2010. Trial counsel stated
there were no additions, deletions, or corrections to the presentence report. Trial
counsel noted the recommended sentence was comprised of two concurrent ten-
year NERA terms, consecutive to a five-year, must serve five term. Trial
counsel stated it would be "disingenuous" to argue that any mitigating factors
applied. He requested that the court sentence defendant in accordance with the
plea agreement. Counsel described the recommended sentence as "fair" and
asked the court to adopt it.
During his allocution, defendant stated: "I would just like to apologize to
the people in the State of New Jersey and County of Middlesex for my wrongful
deeds. Never really intended to cause harm to anybody. I'm real sorry for it. I
apologize."
A-5543-17T1
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The trial court found aggravating factors three (risk of defendant
committing another offense), six (prior record), and nine (deterrence), N.J.S.A.
2C:44-1(a)(3), (6) and (9), and no mitigating factors. It determined that the
aggravating factors substantially outweighed the mitigating factors. Defendant
was sentenced in accordance with the plea agreement. Appropriate periods of
mandatory parole supervision were imposed pursuant to NERA. Defendant was
ordered to pay for the cost of extradition from Florida.
Defendant filed a pro se PCR petition that was dismissed without
prejudice on October 11, 2012, "at the request of the defendant, in order to
attempt to file a late direct appeal."
On December 16, 2013, defendant's sentence was affirmed on an
Excessive Sentence Oral Argument calendar. R. 2:9-11. We found his sentence
was not manifestly excessive or unduly punitive and did not constitute an abuse
of discretion.
Defendant filed a motion to correct an illegal sentence on April 21, 2014.
The motion was denied without prejudice due to defendant's failure to attach
supporting documentation. Defendant later filed a second motion to correct an
illegal sentence that was denied on March 21, 2017, without prejudice to his
right to file a petition for PCR.
A-5543-17T1
6
On May 11, 2017, defendant filed a second pro se PCR petition. The
petition alleged ineffective assistance of counsel. PCR Counsel was appointed
to represent defendant. Defendant claimed his guilty plea should be vacated
because it was entered without a full understanding of its consequences. He
asserted that at the time he pleaded guilty, he was not aware that the plea
agreement called for a fifteen-year term subject to parole ineligibility under
NERA on Indictment 07-02-0238, or that the certain persons offense sentence
on Indictment No. 07-02-0240 would run consecutively. Defendant also argued
that trial counsel was ineffective for not arguing that mitigating factors two
(defendant did not contemplate his conduct would cause or threaten serious
harm), three (defendant acted under a strong provocation), and nine (defendant
unlikely to reoffend), N.J.S.A. 2C:44-1(b)(2), (3) and (9), applied. Defendant
further argued that appellate counsel was ineffective by failing to argue that a
sentencing remand was required because the trial court did not provide a
statement of reasons for imposing consecutive sentences. PCR counsel
submitted statements of individuals who would have been willing to speak on
defendant's behalf at the sentencing hearing if they had been contacted by trial
counsel. Defendant requested an evidentiary hearing.
A-5543-17T1
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After hearing oral argument on June 4, 2018, Judge Flynn issued a June
27, 2018 order and June 25, 2018 twenty-seven-page written opinion denying
the petition without an evidentiary hearing.
The court first addressed whether the petition was time-barred. Rule 3:22-
12 requires a petition for PCR to be filed within five years after the date of entry
of the judgment of conviction. Defendant was sentenced on May 24, 2010. The
judgments of conviction were entered the following day. His petition was filed
over seven years later on June 12, 2017. Defendant conceded that his petition
was filed two years out-of-time. He contended, however, that the time-bar
should not be enforced because his failure to timely file his petition was due to
"excusable neglect and that there is a reasonable probability that if [his] factual
assertions were found to be true enforcement of the time bar would result in a
fundamental injustice." (Quoting R. 3:22-12(a)(1)(A)). He claimed the issues
presented were "identical to the issues he wanted to raise in his motion to correct
an illegal sentence." The court noted, however, that defendant's motion to
correct an illegal sentence was filed in July 2016, and likewise beyond the five-
year time limit.
A-5543-17T1
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The court determined the petition was time-barred. It noted defendant
conceded that "ignorance of the law is not a sufficient excuse for delay in filing."
The court further noted that defendant's sentence was upheld on direct appeal.
Pursuant to State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014),
the court separately considered defendant's motion to withdraw his guilty plea,
which was not time-barred. The court rejected defendant's claim that his plea
was not knowing and voluntary and the product of ineffective assistance of
counsel. The court found that the plea forms and plea transcript refuted
defendant's claim that he was not sufficiently advised of his sentence
recommendation of an aggregate fifteen-year term, subject to over thirteen years
of parole ineligibility. The court determined that the transcripts of those
hearings demonstrated that any confusion regarding whether the terms were
consecutive or concurrent terms was addressed and clarified during the
subsequent plea hearing. Consequently, the court found "defendant was well
aware of his maximum exposure," and had "failed to establish he was
prejudiced" or that "but for counsel's errors, he would have proceeded to trial."
Accordingly, it concluded defendant "did not receive ineffective assistance of
counsel during his plea bargaining."
A-5543-17T1
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The court determined that the plea colloquy demonstrated that the plea
was entered knowingly and voluntarily and that the requirements of Rule 3:9-2
were met.
The court then applied the four factors adopted in State v. Slater, 198 N.J.
145, 157-58 (2009). As to the first factor, the court found defendant did not
assert a colorable claim of innocence. "Rather, defendant Alvarado states that
he did not intend to kill anyone, and only wanted to scare London by firing
bullets at the ground." When difficulties obtaining a factual basis for a plea to
attempted murder arose, the plea was amended to aggravated assault under count
six. The court concluded that defendant's "self-serving" claim of innocence was
"merely a blanket, bald statement that is insufficient to satisfy prong [one] of
Slater."
As to the second factor, the court concluded defendant "ha[d] not
established a fair and just reason for withdrawing his guilty plea ," reiterating
that it was "clear that the defendant was in fact informed of his aggregate plea
term."
The court stated that the third factor, the existence of plea agreement,
applied but "should not be given great weight in the balancing process," citing
Slater, 198 N.J. at 161.
A-5543-17T1
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With respect to the fourth factor, whether withdrawal would prejudice the
State, the court noted the State is not required to establish prejudice since
defendant did not satisfy the first, second, or third factors, citing Slater, 198 N.J.
at 162.
Based on its findings that defendant failed to satisfy the Slater factors and
had not established that a failure to withdraw his guilty plea would result in a
manifest injustice, the court denied the motion.
The court next addressed defendant's claim that trial counsel was
ineffective during the sentencing hearing by failing to argue mitigating factors
two, three, and nine applied. It noted that failure to assert mitigating factors
only amounted to ineffective assistance of counsel when "evidential support"
existed for the omitted mitigating factors, quoting State v. Hess, 207 N.J. 123,
149 (2011).
As to mitigating factor two, defendant argued he only intended to scare
the victim by firing a gun in his direction and did not contemplate a chance of
harm. The court found "no evidential proof to support mitigating factor [two],"
noting that defendant acknowledged during the plea hearing that he understood
that if the victim was struck it could have killed him. The court concluded
"defense counsel could not have legitimately argued, based upon the facts of this
A-5543-17T1
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case, that the defendant did not contemplate that his conduct could threaten
serious harm to the victim."
As to mitigating factor three, the court found defendant did not provide
any evidence that supported his claim that he acted under a strong provocation.
Thus, the court found no basis for applying mitigating factor three. Similarly,
the court found no evidential support for applying mitigating factor nine.
Accordingly, the court concluded defendant did not demonstrate that counsel's
performance was deficient or that he was prejudiced by counsel's failure to argue
the mitigating factors applied, thus failing to satisfy either prong under
Strickland.2 The court explained that defendant received prison terms in "the
bottom of the sentencing range" as to each of the crimes he pleaded guilty to.
Moreover, the indictments exposed defendant to a far longer aggregate sentence
if he had gone to trial.
Lastly, the court rejected defendant's claim that appellate counsel was
ineffective for failing to argue the trial court neglected to state justificati ons for
imposing consecutive sentences. The court stated, "defendant's contentions
regarding consecutive sentences or the absence of reasons for imposition of the
2
Strickland v. Washington, 466 U.S. 668, 687 (1984).
A-5543-17T1
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consecutive sentences do not relate to the issue of sentence 'legality' and are not
cognizable on PCR," quoting State v. Acevedo, 205 N.J. 40, 47 (2011).
Based on these findings and legal conclusions, the court found defendant
failed to establish a prima facie case of ineffective assistance of counsel and
denied defendant's petition without an evidentiary hearing. This appeal
followed.
Defendant raises the following points for our consideration:
POINT ONE
THE TIME BAR OF [RULE] 3:22-12 SHOULD NOT
BE APPLIED TO DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF.
POINT TWO
THE PCR COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT'S REQUEST FOR AN
EVIDENTIARY HEARING BECAUSE THE PLEA
FORM AND TRANSCRIPT SUPPORTED
DEFENDANT'S CLAIM, AND ESTABLISHED A
PRIMA FACIE CASE, THAT HIS TRIAL
ATTORNEY NEVER TOLD HIM HE COULD
RECEIVE A FIFTEEN[-]YEAR SENTENCE UNDER
THE TERMS OF THE PLEA AGREEMENT.
POINT THREE
THE FAILURE OF TRIAL COUNSEL TO ASSURE
THAT DEFENDANT'S TESTIMONY AT THE PLEA
HEARING ESTABLISHED A FACTUAL BASIS FOR
THE CRIME OF ATTEMPTED MURDER, DESPITE
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THE FACT COUNSEL HIMSELF ATTEMPTED TO
ELICIT THE FACTUAL BASIS, DEPRIVED
DEFENDANT OF HIS CONSTITUTIONAL RIGHT
TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT FOUR
THE FAILURE OF TRIAL COUNSEL TO ADVISE
DEFENDANT THAT THE PRIMARY PENAL
CONSEQUENCE OF HIS GUILTY PLEA WAS
THAT HE COULD BE SENTENCED TO AN
AGGREGATE FIFTEEN[-]YEAR PRISON TERM,
DEPRIVED DEFENDANT OF HIS
CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.
POINT FIVE
THE PCR COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT A NEW SENTENCE
HEARING AS A RESULT OF TRIAL COUNSEL'S
FAILURE TO ARGUE IN FAVOR OF MITIGATING
FACTORS AND FOR THE IMPOSITION OF
CONCURRENT SENTENCES.
POINT SIX
THE ABSENCE OF ANY LEGAL ARGUMENT BY
APPELLATE COUNSEL REGARDING THE
SENTENCING COURT'S FAILURE TO EXPLAIN
WHY IT IMPOSED CONSECUTIVE SENTENCES
CONSTITUTED INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL.
Our careful review of the record reveals that each of these arguments lack
merit.
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II.
Under the Sixth Amendment of the United States Constitution, a criminal
defendant is guaranteed the effective assistance of legal counsel in his defense.
Strickland, 466 U.S. at 687. To establish a deprivation of that right, a convicted
defendant must satisfy the two-part test enunciated in Strickland by
demonstrating that: (1) counsel's performance was deficient, and (2) the
deficient performance actually prejudiced the accused's defense. Ibid.; accord
State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in
New Jersey).
When a guilty plea is involved, a defendant must satisfy two criteria to set
aside the plea based on ineffective assistance of counsel. State v. Nuñez-Valdéz,
200 N.J. 129, 139 (2009). The defendant must demonstrate 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.'" Ibid. (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)).
PCR courts are not required to conduct evidentiary hearings unless the
defendant establishes a prima facie case and "there are material issues of
A-5543-17T1
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disputed fact that cannot be resolved by reference to the existing record." R.
3:22-10(b). "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." State v. Marshall, 148 N.J. 89, 158 (1997). As the PCR court
did not hold an evidentiary hearing, we undertake a de novo review. State v.
Parker, 212 N.J. 269, 278 (2012).
Rule 3:21-1 permits a motion to withdraw a plea of guilty to be made after
sentencing to "correct a manifest injustice." Trial courts should consider the
following factors when evaluating motions to withdraw a guilty plea: "(1)
whether the defendant has asserted a colorable claim of innocence; (2) the nature
and strength of defendant’s reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused." Slater, 198 N.J. at 150.
III.
We affirm the denial of defendant's petition substantially for the reasons
stated by Judge Flynn in her well-reasoned and thorough written opinion. Her
factual findings are fully supported by the record and her legal conclusions
comport with applicable legal principles. We add the following comments.
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Defendant's petition is clearly time-barred. His petition was filed seven
years after the judgment of conviction was entered. Defendant did not
demonstrate "excusable neglect" or establish that enforcing "the time bar would
result in a fundamental injustice." R. 3:22-12(a)(1)(A).
Defendant's petition was also substantively without merit. Defendant did
not establish a prima facie case of ineffective assistance of trial counsel.
Defendant did not show that he was prejudiced by trial counsel not arguing for
the application of mitigating factors two, three, and nine. His claims of
ineffective assistance of appellate counsel regarding consecutive sentences were
not cognizable on PCR. Acevedo, 205 N.J. at 47. The petition was properly
denied without an evidentiary hearing. R. 3:22-10(b).
Defendant's motion to withdraw his guilty plea was also without merit.
Defendant gave an adequate factual basis for his plea. He did not satisfy factors
one, two, or three of the Slater test. Therefore, the State was not obligated to
show prejudice. Slater, 198 N.J. at 162. The motion was properly denied.
Affirmed.
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