STATE OF NEW JERSEY VS. SHAMIR MODESTIN (12-05-1451, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3523-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAMIR MODESTIN, a/k/a
SHA-MIR NIGEL SPRINGER,
Defendant-Appellant.
___________________________
Submitted November 9, 2020 – Decided December 23, 2020
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 12-05-1451.
Joseph E. Krakora, Public Defender, attorney for
appellant (Charles H. Landesman, Designated Counsel,
on the brief).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Lucille M.
Rosano, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
After pleading guilty to nine crimes, 1 defendant appeals from a February
15, 2019 order denying his petition for post-conviction relief (PCR). Defendant
maintains he pled guilty because his plea counsel rendered ineffective
assistance. Judge Michael L. Ravin found defendant knowingly and voluntarily
pled guilty, entered the order under review, and rendered a comprehensive
written decision.
On appeal, defendant argues:
POINT I
DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL BY HIS [PLEA]
ATTORNEY WHEN HE COERCED DEFENDANT
TO PLEAD GUILTY TO CRIMES THAT HE DID
NOT COMMIT.
POINT II
DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS
RETAINED ATTORNEY BREACHED HIS
AGREEMENT WITH DEFENDANT BY
1
Second-degree conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1(b)(1); first-
degree sexual assault force or coercion with no serious injury, N.J.S.A. 2C:14 -
2(c)(1); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); two counts
of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); fourth-degree
impersonating a public servant, N.J.S.A. 2C:28-8; second-degree conspiracy to
commit kidnapping/flight, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1(b)(1); second-
degree conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:14-2(a)(3); and fourth-degree impersonating a law enforcement
officer, N.J.S.A. 2C:28-8(b).
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WITHDRAWING AS DEFENDANT'S COUNSEL
WITHOUT CAUSE THEREBY FORCING
DEFENDANT TO HAVE A PUBLIC DEFENDER
REPRESENT HIM AT HIS SENTENCING.
POINT III
DEFENDANT SHOULD BE GIVEN AN
EVIDENTIARY HEARING WITH RESPECT TO HIS
CLAIM THAT HIS PLEA WAS COERCED AND
THAT HE WAS DEPRIVED OF THE SERVICES OF
HIS RETAINED ATTORNEY AT HIS
SENTENCING.
Defendant failed to satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987), and did not demonstrate a reasonable
likelihood that his PCR claim would ultimately succeed on the merits. We
therefore affirm.
To meet the first Strickland/Fritz prong, a defendant must establish that
his counsel "made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687.
The defendant must rebut the "strong presumption that counsel's conduct [fell]
within the wide range of reasonable professional assistance[.]" Id. at 689. Thus,
we must consider whether counsel's performance fell below an objective
standard of reasonableness. Id. at 688.
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As to the first prong, defendant argues his plea counsel coerced him to
plead guilty, and that by withdrawing as his counsel, defendant was forced to
plead guilty. These contentions are belied by the record, as the judge
comprehensively detailed. Defendant knew he retained only plea counsel, not
trial counsel, and he pled guilty freely.
Defendant retained his plea counsel and signed a retainer agreement,
which stated that counsel would provide legal services for "plea negotiation,
plea on the record and sentencing, . . . or dismissal of [the] charges." The
retainer agreement further provided that if the case could not be resolved by a
guilty plea or dismissal of the charges, then the legal representation and
obligations of counsel "shall conclude." Entering into such a retainer agreement
does not amount to making "errors so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the Sixth Amendment," id. at 687,
or demonstrate that counsel's performance "fell below an objective standard of
reasonableness." Id. at 688. Thus, on this point, defendant failed to rebut the
"strong presumption that counsel's conduct [fell] within the wide range of
reasonable professional assistance[.]" Id. at 689.
There is no evidence whatsoever that defendant was forced to plead guilty
because his plea counsel withdrew. Counsel did not withdraw until after
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defendant knowingly and intelligently pled guilty. We reach the conclusion—
as did the judge—that defendant pled guilty voluntarily, based on the exchange
between the judge and defendant in the plea transcript, which we quote in part.
Q: Do you understand it will be very difficult to take
this guilty plea back after I accept it?
A: Yes.
....
Q: Has anyone threatened you, or pressured you, of
badgered you, or coerced you in any way whatsoever
[to] get you to plead guilty?
A: No.
Q: Is your plea of guilty entirely of your own free will?
A: Yes.
....
Q: Are you, in fact, guilty of the crimes to which you're
pleading guilty?
A: Yes.
Q: There's absolutely no doubt about that. Isn't that
right, sir?
A: Yeah.
Q: Has [plea counsel] represented you during these
proceedings, met with you, explained everything to
you, and answered every single one of your questions?
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A: Yeah.
Q: Are you absolutely satisfied with his services?
A: Yes.
Thus, defendant failed to meet prong one of Strickland/Fritz.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58. Both the United States
Supreme Court and the New Jersey Supreme Court have extended the
Strickland/Fritz test to challenges of guilty pleas based on ineffective assistance
of counsel. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye,
566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994).
Defendant must demonstrate with "reasonable probability" that the result would
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have been different had he received proper advice from his attorney. Lafler, 566
U.S. at 163 (quoting Strickland, 466 U.S. at 694).
Defendant has not met prong two of Strickland/Fritz. As part of the plea
agreement, plea counsel successfully convinced the State to dismiss eleven
additional counts in the indictment. His legal representation resulted in
defendant avoiding substantial prison exposure, including the imposition of
consecutive sentences pertaining to four victims. Instead, he received a twelve-
year prison term, concurrent to a pending matter in another county, subject to
the No Early Release Act, N.J.S.A. 2C:43-7.2, which was three years less than
the State's plea recommendation. Indeed, defendant suffered no prejudice
whatsoever when a public defender appeared on his behalf at sentencing.
Finally, an evidentiary hearing was not warranted. A defendant is only
entitled to an evidentiary hearing when he "has presented a prima facie [case] in
support of [PCR]," State v. Marshall, 148 N.J. 89, 158 (1997) (first alteration in
original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), meaning that a
defendant must demonstrate "a reasonable likelihood that his . . . claim will
ultimately succeed on the merits." Ibid. The defendant bears the burden of
establishing a prima facie case. State v. Gaitan, 209 N.J. 339, 350 (2012).
Defendant did not satisfy this burden.
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To the extent we have not addressed defendant's arguments, we conclude
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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