NOT FOR PUBLICATION WITHOUT THE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-2353-19






                   Submitted May 5, 2021 – Decided June 10, 2021

                   Before Judges Whipple and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 13-04-0589.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Amira R. Scurato, Designated Counsel, on
                   the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Craig A. Becker, Assistant Prosecutor, of
                   counsel and on the brief).

     Defendant Luis Diaz appeals from the trial court's December 12, 2019

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

     Defendant raises the following arguments on appeal:

           POINT I

           A. Plea Counsel Failed in her Duty to Protect
           Defendant's Legal Interests.

           B. The PCR Judge Erred in Failing to Conduct an
           Evidentiary Hearing to Fully Explore Defendant's

     On April 22, 2013, defendant was indicted and charged with first-degree

robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery,

N.J.S.A. 2C:5-2, 2C:15-1; second-degree possession of a weapon for an

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

firearm, N.J.S.A. 2C:39-5(b); and fourth-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-5(d). In May 2014, defendant pled guilty to

second-degree conspiracy to commit robbery and second-degree possession of

a firearm for an unlawful purpose, in exchange for the State's recommendation

                                     2                                 A-2353-19
of a seven-year maximum prison term. Before sentencing, defendant moved to

withdraw his guilty plea, which was denied. The court sentenced defendant to

a five-year term of imprisonment on count two, subject to the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, with a concurrent five-year Graves Act term,

N.J.S.A. 2C:43-6, on count three, the weapons charge.

      Defendant filed a direct appeal, arguing the motion to withdraw his guilty

plea should have been granted because the court took the factual basis prior to

the completion of the waiver of his rights. We disagreed and affirmed. State v.

Diaz, No. A-1400-15 (App. Div. Oct. 18, 2017) (slip op. at 1-2).

      In that decision, we focused on defendant's plea colloquy and his motion

to withdraw his plea, and said:

                   At a hearing that began on May 5, 2014, the
            Assistant Prosecutor moved the plea agreement by
            representing that plea forms were completed by the
            parties and defendant was expected to plead guilty to
            the above-referenced second-degree charges. The
            Assistant Prosecutor also placed on the record the
            State's recommended sentence of seven years, subject
            to . . . NERA, N.J.S.A. 2C:43-7.2, and [Graves] Act
            components, N.J.S.A. 2C:43-6, and stated defendant
            agreed to testify against his co-defendants and his
            counsel was free to argue for a lesser sentence.

                   Defendant, who was questioned by his counsel to
            establish a factual basis for the plea, testified under oath
            that, on December 28, 2012, he and two co-defendants
            agreed to rob an owner of a pizza shop. One co-

                                         3                                 A-2353-19
             defendant drove defendant and the other co-defendant
             to the individual's home where they encountered the
             owner, and the co-defendant fired a handgun that was
             jointly possessed. Defendant and co-defendant ran
             from the scene and called the other co-defendant for a
             ride. All three co-defendants were arrested shortly


                   The judge asked defendant if he understood each
             relevant potential consequence of the plea to both
             offenses, which defendant said he did. The judge then
             scheduled a sentencing date.

                   On July 10, 2014, defendant moved to withdraw
             his guilty plea pursuant to State v. Slater, 

198 N.J. 145

             (2009), asserting he misunderstood the terms of the plea
             and the potential sentence, his Miranda[1] rights were
             violated, and he has three small children for whom he
             cares. Defendant provided no facts to support a
             colorable claim of innocence, demonstrated no flaw in
             the plea proceeding, and provided no evidence his
             lawyer misled him into pleading guilty. The judge then
             sentenced defendant to a term of five years, consistent
             with the plea agreement.

       On June 29, 2018, defendant filed a motion for PCR, asserting ineffective

assistance of counsel because neither defendant's trial counsel nor appellate

counsel investigated his mental competency at the time of his plea and

allocution. On December 12, 2019, after considering defendant's arguments, the

    Miranda v. Arizona, 

384 U.S. 436


                                        4                                 A-2353-19
PCR judge denied defendant's petition in a thorough, well-reasoned opinion

from the bench. This appeal followed.

      Defendant initially contended that his trial counsel improperly allowed

him to plead guilty while under the influence of mental health medications

Lexapro and Xanax. Defendant asserts that it was error for the court not to

assess his mental competency at the time of the plea due to his anxiety diagnosis

and medication, and defense counsel should have retained a mental health


      For purposes of defendant's PCR submission, he was examined by a

psychiatrist, Kenneth Weiss, M.D., who upon examination found defendant

"alert, oriented, cooperative and socially appropriate . . . of average intelligence,

[and] displaying the capacity to take in and use information." However, based

on this single interview with defendant, Weiss concluded defendant had post-

traumatic stress disorder and panic attacks, which prevented him from entering

a knowing and voluntary plea in May 2014.

      The PCR judge rejected defendant's assertion, examining defendant's

various claims of ineffective assistance of counsel under the Strickland/Fritz 2

  Strickland v. Washington, 

466 U.S. 668

 (1984); State v. Fritz, 

105 N.J. 42


                                         5                                    A-2353-19
standard, concluding defendant's claims—ineffective assistance of counsel

related to his mental condition or understanding of the plea agreement—lacked

merit. The court rejected defendant's request for an evidentiary hearing because

defendant failed to present a prima facie case of ineffective assistance, and there

were no material facts outside the record that required resolution. The court

noted the record revealed "absolutely no indication that [defendant] was

confused or under the influence of any medication at the time of his plea." The

court rejected Weiss's report, which notably conceded that defendant was

"unable to say whether the medication, if he took it at all, had any effect on


        Since we thoroughly examined the transcripts of the plea on direct appeal,

we concur with the PCR judge's conclusion that defendant was lucid and

responsive, and there was nothing to suggest that "[d]efendant was participating

[with] anything other than complete[] voluntar[iness] and with full knowledge

of . . . what was happening."

        Where a judge denies a PCR petition without an evidentiary hearing, we

review the denial for abuse of discretion. State v. Brewster, 

429 N.J. Super.


, 401 (App. Div. 2013).        However, where no evidentiary hearing was

conducted, "we may review the factual inferences the court has drawn from the

                                         6                                   A-2353-19
documentary record de novo." State v. Blake, 

444 N.J. Super. 285

, 294 (App.

Div. 2016). "We also review de novo the [trial] court's conclusions of law."


 (citation omitted).

      PCR is "New Jersey's analogue to the federal writ of habeas corpus." State

v. Cummings, 

321 N.J. Super. 154

, 164 (App. Div. 1999) (first citing State v.


151 N.J. 41

, 49 (1997); and then citing State v. Preciose, 

129 N.J.


, 459 (1992)). A PCR claim "must be established by a preponderance of the

credible evidence." State v. McQuaid, 

147 N.J. 464

, 483 (1997) (citing Preciose,

129 N.J. at 459

). Rule 3:22-2(a) states that PCR is cognizable if based upon a

"[s]ubstantial denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or laws of the State of

New Jersey." The Sixth Amendment of the United States Constitution and

article I, paragraph 10 of the New Jersey Constitution both guarantee effective

assistance of legal defense counsel to a person accused of a crime. See State v.


216 N.J. 343

, 352 (2013) (citing Strickland, 

466 U.S. at 685-86


      In determining whether a defendant has established a prima facie claim,

the facts should be viewed in the light most favorable to the defendant. Preciose,

129 N.J. at 462-63

. To determine whether a prima facie claim of ineffective

assistance of counsel is present, the claim must be evaluated under the two-

                                        7                                   A-2353-19
prong Strickland test.    Under the Strickland test, "a reviewing court must

determine: (1) whether counsel's performance 'fell below an objective standard

of reasonableness,' and if so, (2) whether there exists a 'reasonable probability

that, but for counsel's unprofessional error, the result of the proceeding would

have been different.'" State v. Castagna, 

187 N.J. 293

, 313-14 (2006) (quoting


466 U.S. at 688, 693

- 94); see also Fritz, 

105 N.J. at 60-61

. However,

to establish a prima facie claim, a defendant "must do more than make bald

assertions that he was denied the effective assistance of counsel." Cummings,

321 N.J. Super. at 170

. Rather, a defendant "must allege facts sufficient to

demonstrate counsel's alleged substandard performance.            Thus, when a

[defendant] claims his trial attorney inadequately investigated his case, he must

assert the facts that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge" of the person

making the certification or affidavit. 


      Here, we have been presented with a vague and conclusory diagnosis from

a mental health examination years after the events in question. Under the second

Strickland prong, in the context of a guilty plea, a defendant must show a

reasonable probability that, but for counsel's alleged errors, he would not have

pled guilty and would have insisted on going to trial. Hill v. Lockhart, 

474 U.S.


52, 59 (1985); State v. DiFrisco II, 

137 N.J. 434

, 456 (1994). Moreover, he must

show that a decision to reject the plea would have been rational under the

circumstances. Padilla v. Kentucky, 

559 U.S. 356

, 372 (2010); State v. Maddon,

422 N.J. Super. 475

, 486 (App. Div. 2011) (defendant must show that "had he

been properly advised, it would have been rational for him to decline the plea

offer and insist on going to trial and, in fact that he probably would have done

so[.]") Given defendant's understanding of the rights he gave up, as well as the

evidence against him, it is unlikely that defendant would have insisted on going

to trial because he would not have been guaranteed an aggregate five-year

sentence subject to NERA.

      Looking at the facts in the light most favorable to defendant, there is no

evidence defendant would have insisted on going to trial but for defense

counsel's advice, and it would not have been rational for him to do so.

Therefore, defendant has not met prong two of the Strickland/Fritz test.

      Moreover, defendant's bald assertions, as the PCR judge noted, did not

present a prima facie case as required for an evidentiary hearing. Regardless,

defendant's allegations are vague and speculative, and an evidentiary hearing

would not "aid the court's analysis" of whether defendant is entitled to PCR.

Therefore, an evidentiary hearing was not warranted, and there was no abuse of

                                       9                                   A-2353-19
the PCR judge's discretion. Defendant's other arguments are without sufficient

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


                                      10                                A-2353-19

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