STATE OF NEW JERSEY VS. LUIS A. PEREZ (12-12-2900, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0848-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. PEREZ,

Defendant-Appellant.
___________________________

Submitted December 10, 2019 – Decided January 9, 2020

Before Judges Yannotti and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 12-12-2900.

Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John Joseph Lafferty, IV, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Luis A. Perez appeals from a July 30, 2018 order denying his

petition for post-conviction relief (PCR). We affirm.

I.

Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-

3(a)(1)(2); second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b). He pled guilty to first-degree aggravated manslaughter,

N.J.S.A. 2C:11-4(a)(1).

Defendant filed a motion to withdraw his plea, arguing that the discovery

showed he had a colorable claim of self-defense. The trial court denied

defendant's motion to withdraw his plea, and sentenced him to eighteen years of

imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant filed a direct appeal. We affirmed the denial of the motion to

withdraw the plea and the sentence imposed. State v. Perez, No. A-5903-13

(App. Div. Mar. 10, 2015) (slip op. at 1).

Thereafter, defendant filed a PCR petition, which the PCR court denied,

without conducting an evidentiary hearing. We affirmed denial of the PCR.

State v. Perez, No. A-5274-15 (App. Div. July 24, 2017). However, the Supreme

Court remanded the matter to the trial court for an evidentiary hearing. State v.

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Perez, 231 N.J. 423 (2017). The facts underlying defendant's conviction are set

forth in our opinion and need not be repeated here.

In his petition, defendant challenged the effectiveness of his trial counsel,

Mary Linehan, and argued that as a result of her failure to review late discovery

with him, he was unaware of a potential self-defense claim. The discovery

revealed the victim was a violent man who went to defendant's home to continue

a dispute they had. Prior to the shooting, the victim "tussled" with defendant,

in view of the State's witnesses. The victim appeared intoxicated to defendant

and chased him. Based on this discovery, defendant argued he had a valid self-

defense claim. He also argued Linehan's decision to forego a Wade1 hearing

resulted in prejudice to him.

Defendant claimed that Stephen Funk, who argued defendant's motion to

withdraw his guilty plea and represented him at sentencing, was ineffective for

failing to supplement Linehan's motion to withdraw defendant's guilty plea with

a toxicology report showing the victim was under the influence when he was

murdered. Defendant further contended his due process rights were violated.

1
United States v. Wade, 388 U.S. 218 (1967).
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 Defendant asserts he would not have entered into the plea agreement had

the contents of this discovery been explained to him. At the hearing, the PCR

court heard testimony from Linehan and Funk. Defendant also testified.

At the hearing, defendant testified that he did not see or speak to the victim

on the day he was murdered. The PCR court found Linehan and Funk were

credible, and defendant was not. The PCR court made the following findings:

Linehan assisted [defendant] in his plea after reviewing
all the discovery with him. Further, the documents
provided to [defendant] the day he pleaded guilty
offered no new evidence which would have encouraged
him not to plead or changed trial strategy.
Additionally, Linehan's strategic decision to forego the
[Wade] hearing was not so likely to prejudice the
accused that it is tantamount to a complete denial of
counsel as a [Wade] hearing was likely to have been
fruitless. Funk's decision not to supplement his motion
to withdraw [defendant's] guilty plea was a strategic
decision that was not so likely to prejudice the accused
that it is tantamount to a complete denial of counsel.
Furthermore, the toxicology report would not have
altered the outcome of [defendant's] motion. As such,
both Linehan's and Funk's strategic decisions and
performance were not so deficient or faulty so as to
result in actions or omissions that were tantamount to a
complete denial of counsel.

Defendant presents the following issue for our consideration in his appeal.

POINT I

THE PCR COURT ERRED IN DENYING MR.
PEREZ'S CLAIM THAT TRIAL COUNSEL WAS

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 INEFFECTIVE FOR FAILING TO REVIEW LATE-
PROVIDED DISCOVERY WITH HIM.

We are not persuaded by defendant's argument and affirm.

II.

In challenging the effectiveness of his counsel, defendant argues that, as

a result of his attorney's failure to review discovery provided on the eve of trial

with him, he was unaware of a self-defense claim. Defendant asserted that

instead of entering a guilty plea, he would have proceeded to trial.

The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State

v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-prong test of establishing

both that: (1) counsel's performance was deficient and he or she made errors that

were so egregious that counsel was not functioning effectively as guaranteed by

the Sixth Amendment to the United States Constitution; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such that there exists a

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

of the proceeding would have been different." Strickland, 466 U.S. at 687, 694.

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 It is well established that the Strickland standard applies to claims of

ineffective assistance of counsel associated with a guilty plea. State v. Gaitan,

209 N.J. 339, 350-51 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).

To establish the prejudice prong under Strickland in the context of a plea, a

defendant must establish that "there is a reasonable probability that, but for

counsel's errors, [he or she] would not have pled guilty and would have insisted

on going to trial." Id. at 351 (quoting State v. Nuñez-Valdez, 200 N.J. 129, 139

2009). A defendant must show that it would have been rational to reject the plea

offer and insist on going to trial, and, that "he probably would have done so

. . . ." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).

A petitioner seeking PCR bears the burden of establishing by a

preponderance of the evidence that he is entitled to relief. State v. Mitchell, 126

N.J. 565, 579 (1992). "To sustain that burden, specific facts must be alleged

and articulated, which, if believed, would provide the court with an adequate

basis on which to rest its decision." Ibid.

However, in arguing that his counsel failed to review discovery with him,

defendant has not identified any information that would have led to a different

result had the case been tried. Here, the PCR court concluded that Linehan did

not risk having defendant plead guilty before reviewing the discovery herself

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and with defendant. We defer to the PCR court's factual findings where an

evidentiary hearing was conducted. State v. Nash, 212 N.J. 518, 540 (2013).

The lack of specificity in defendant's arguments and proofs at the evidentiary

hearing precludes any determination that either prong of the Strickland/Fritz test

has been satisfied, and therefore, cannot provide a basis for relief.

In this case, as the PCR court observed, the discovery in contention was

merely investigation notes prepared by law enforcement officers, which were

later memorialized into police reports. Defendant failed to show how the

information contained in these notes was different from what he already

reviewed in the police reports. Therefore, no prejudice has been demonstrated.

Moreover, defendant did not cite to anything in the investigation notes that

would have convinced him to proceed to trial instead of pleading guilty. The

PCR court found defendant was "evasive" and that his "version of events were

internally inconsistent." The PCR court's findings were based upon sufficient

credible evidence in the record. Therefore, we discern no error in the PCR

court's conclusion that a Wade hearing would have been "fruitless."

Based upon our careful review of the record, the PCR court aptly found

Funk's decision not to supplement the motion to withdraw the guilty plea with

the toxicology report would not have changed the outcome of the motion.

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 We are satisfied from our review of the record that defendant failed to

establish ineffectiveness of trial counsel. Accordingly, the PCR court correctly

denied his application for PCR relief.

Affirmed.

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