SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 16T3 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. MARILYN NADEAU, Defendant

- Appellant.

_____________ _______________

Submitted October 23, 2018

– Decided Before Judges Rothstadt and Gilson. On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 13

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- 0 230. Joseph E. Krakora, Public Defender, attorney for appellant (Andrew R. Burroughs, Designated Counsel, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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February 4, 20192 A

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Defendant Mari lyn Nadeau appeals from the denial of her petition for post

- conviction relief (PCR) without an evidentiary hearing

. For the reasons that follow, we affirm. Defendant's conviction arose from her role in a December 29, 2012 carjacking with her then

- boyfrie nd , co - defendant Joseph DeFreitas. On that day, defendant was initially a passenger in a car driven by DeFreitas. After stopping at a coffee shop, where De Freitas and defendant first observed their victim, they got into their car, followed , and then p ulled up alongside the victim's vehicle . DeFreitas got out of his car and using an imitation handgun , forced the victim to move over so he could drive her car

. Defendant drove DeFreitas ' vehicle, following him a s he drove the victim 's car to her bank. U pon their arrival, DeFreitas gave defendant the victim 's ATM card, which defendant
used to withdraw funds from the victim's account , using the "PIN" the victim provided to DeFreitas . Afterward, defendant and DeFre i tas stole the victim's credit cards. DeF reitas then tie d the victim up with an electric cord and placed
her in the trunk of her car, which he and defendant left behin d a t a warehouse during the New Year ' s holiday weekend

. Defendant and DeFreitas later use d the victim's credits card in various s tores.3 A

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After defendant's arrest , a grand jury indicted her and DeFreitas, charging them in an eleven

- count indictment with various crimes, including first

- degree kidnapping, N.J.S.A. 2 C :13

- 1(b)(1 ); first

- degree armed robbery , N.J.S.A. 2C:15

- 1(a)(1 ); and first

- degree carjacking, N.J.S.A. 2C:15

- 2(a)(1). On April 29, 2015, d efendant pled guilty to one count of first

- degree armed robbery, as charged in the indictment's second count. The sentencing court imposed an aggregate sentence of el e ven years, subject to an eighty

- five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43.

- 7.2. It also dismissed all of the other charges against her. Defendant's sen ten ce was less than what the prosecutor had recommended in the plea agre ement

. Defendant filed a direct appeal, arguing only that her sentence was excessive. We affirmed her sentence. State v. Nadeau , No. A

- 0015

- 15 (App. Div. Feb. 9, 2016). The Supreme Court denied her petition for certification

. State v. Nadeau , 228 N.J. 405 (2016). Defendant filed her PCR petition on September 12, 2016 , in which s he argued that she received ineffective assistance of counsel (IAC) from her plea counsel because there was no evidence linking her to any crime other than using the victim's c redit cards , and counsel failed to investigate the evidence that exculpated her from the other charges made against her. Specifically , she stated4 A

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that DeFreitas , who was already convicted and imprisoned when she pled guilty, "was willing to testify on [he r] behalf," and had written "an aff [ i ] davit to th [ at ] effect, w [ h ] ich [her] attorney saw and advised [her] that [it] co [ u ] ld not

. . . help" her. Her petition, however, did not include a copy of the affidavit. Defendant also ar g ued that her attorney fai led to interview DeFreitas, or the victim , who defendant claimed could not identify her because she did not participate in the crimes. She also claimed that counsel should have moved to
suppress her statement to police because she was manipulated into making the
statement , and that counsel forced her to accept the plea.
PCR c ounsel later submitted a brief and amended petition on defendant's behalf. Defendant's amended petition stated that trial counsel told her she could not go to trial because she wa s "P u e rto Rican [ and ]

. . . would never be acquitted by a white jury ." 1 Also, despite her telling counsel she had been abused by men, he "took advantage of her timid nature

. . . and pressured her to accept the plea." She claimed she was asleep in the ca r when DeFrei t a s committe d the carjacking and she was unaware that he tied up the victim and pl a ced her in the trunk of her

car until after it happened . According to defendant, he r attorney "told her

. . .

1 Defendant, a fifty

- three

- year - old citizen who was born in Puerto Rico, has lived in the United States since the age of se venteen and attended college in Hartford , Connecticut.5 A

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to lie and tell the court exactly what they neede d to hear in order to accept the plea." Defendant confirmed, however, that she authorized her counsel to negotiate a plea, bu t only for using the victim's credit cards. Moreover, defendant claime d tha t the attorney told her that under he r plea , she would be receiving an eight

- year sentence and not t he eleven years impose d by the court.
In the brief, defendant reiterated her factual contentions and argued that she established her entitlement to relief under the controlling case law and that her petition was not time

- barred. The PCR court considered the parties' submissions and counsels' oral arguments before denying defendant's petition by order dated July 5, 2017 . In its oral decision placed on the record on the same date , the court acknowledg ed that from its reading of the record, defendant was not t he "primary moving force
in the horrific incident [,] " but found she did act as an accomplice

. The court stated that "looking back at all of

. . . the proofs including , apparently a written admission of guilt by the defendant ," that they "were strong." It concluded that
in light of the charges that defendant was facing, trial counsel's negotiation of a plea at th e "lower range of on e of the charges" supported the PCR court's find i ng that cou nsel "was operating as competent and s en sible counsel. Making the best6 A

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out of a bad situation [,] " which was "as much as any effective attorney could be asked to do." Turning to defendant's specific allegations of IAC, and relying upon the transcript of d efendant's plea hearing, the PCR court concluded that her contentions were belied by the record. The PCR court reviewed defendant's answers to the plea form's questions and her sworn testimony before the plea court in which she gave a detailed account of her involvement in the crime and confirmed rep eat edly that she w anted to plead to th e one charge. The PCR court concluded that "[t]he allegations against the defense attorney [were] completely contravened by the details of the transcript," which establish ed that defendant entered a knowing and voluntary plea. Applying the standard for PCR under Strickland v. Washington , 466 U.S. 668 (1984) , the court found defendant failed to establish that counsel 's performance fell below the sta n d a rd re q uired under Strickland 's first prong. According to the court , applying the " str o ng presumption" that counsel "provided reasonably effective assistance

. . . this attorney di d th e very best he could ."
As to Strickland 's second prong, the PCR court concluded that based on the proofs, defendant would not have reasonably chosen to go to trial as she was7 A

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exposed to substantial prison time. According to the PCR court, under the circumstances , it would have been IAC had counsel not recommend ed that
defendant accept the plea offer because a jury trial would have been a "disaster for

. . . defendant," and if "counsel

. . . tried to concoct a defense

. . . [it] would have been a legal suicide ." Accordingly , the PCR court concluded th e re was no entitlement to an evidentiary hea ring because defen dant fail ed t o establis h a prima facie claim of IAC. This appeal followed. Defendant presents the following issues for our consideration in her appeal.
POINT I

DEFENDANT'S PETITION FOR POST

CONVICTION RELIEF IS NOT PROCEDURALLY BARRED.
POINT II
AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, SHE IS ENTITLED TO POST

- CONVICTION RELIEF.
1. PLEA COUNSEL PRESSURED DEFENDANT TO ACCEPT THE PLEA OFFER.
2. PLEA COUNSEL FAILED TO PROPERLY INVESTIGATE THE CASE.8 A

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- 16T3 3. THE CUMULATIVE ERRORS COMMITTED BY TRIAL COUNSEL REQUIRE POST

- CONVICTION RELIEF.
POINT III
AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE, AN EVIDENTIARY HEARING WAS REQUIRED.
POINT IV
DEFENDANT IS ENTITLED TO A NEW PCR HEARING DUE TO INEFFECTIVE ASSISTANCE OF PLEA COUNSEL.
1. DEFENDANT HAD THE DEFENSE OF DURESS.
2. PCR COUNSEL FAILED TO PRESENT EXCULPATORY EVIDENCE. Our review of a denial of PCR without an evidentiary hearing is de novo. In our review, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." State v. Harris , 181 N.J. 391, 419, 421 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140 N.J. 3 66, 378 (1995)). The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland , 466 U.S. at 687, and adopted by our Supreme Court in State v. Fritz , l05 N.J.9 A

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42, 49 (l987). In order to prevail o n a claim of ineffective assistance of counsel, defendant must establish both that: (l) 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 t o 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 d ifferent." Strickland , 466 U.S. at 687, 694. The Strickland two

- prong analysis applies equally to convictions after a trial or after a defendant pleads guilty. In the context of a PCR petition challenging a guilty plea, the second Strickland prong is sat isfied when a defendant establishes 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." State v. Gaitan , 209 N.J. 339, 351 (2012) (quoting State v.
Nunez

- Valdez , 200 N.J. 129, 139 (2009)). A defendant who claims ineffective
assistance of plea counsel must also show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky , 559 U.S. 356 , 372 (2010); see also State v. Maldon , 422 N.J. Super. 475, 486 (App. Div. 2011).10 A

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In determining whether a defendant has established a claim for PCR,
court s should not rely solely upon unsupported allegation s that a defendant would have rejected a plea offer. "Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed pref erences." Lee v. U nited
S tates , 137 S. Ct. 1958, 1967 (2017).
We conclude from our de novo review that defendant failed to establish a prima facie showing of IAC and we affirm substantially for the reasons stated by the PCR court in its oral decision. Ac cordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose , 129 N.J. 451, 462 (1992). We only add that defendant's reliance on her and
DeFreitas ' "bald assertions" of defendant's innocence fall short of establishing a prima facie claim of ineffective assistance. State v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999). S ee also State v. Allen , 398 N.J. Super. 247, 258 (App. Div. 2008) ( recognizing that post

- trial exculpatory statements of a co

defendant may be " inherently suspect " ); State v. Robinson , 253 N.J. Super. 346,
367 (App. Div. 1992) (" a sentenced co

- defendant [has] nothing to lose by11 A

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exonerating " his cohort (quoting U nited S tates v. Casta no , 756 F. Supp. 820, 824 (S.D.N.Y. 1991)) )

. 2 Turning to defendant's claim of ineffective assistance of PCR counsel, we note that in support of her argument , defendant supplied us with a copy of a sworn statement dated December 15, 2014 from DeFreitas that was not i ncluded in defendant's petition. The affidavit stat ed t hat defendant "was with [DeFreitas ]

. . . but she did not play a role in the crimes that were committed. All s he did

was use the credit cards , which [DeFreitas] made her do

. She had no par t in the other crimes committed ." Whether, as defendant argues, PCR counsel's failure to include the affidavit in her petition rose to IAC was never raised before a trial
court and therefore is better suited for consideration in a second PCR petition.
See State v. Arthur , 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem.
Ins. Co. , 62 N.J. 229, 234 (1973)); R. 3:22

- 4(b)(2)(C). Affirmed.

2 In light of our determination on the merits of defendant's PCR claim, we need not address whether her petition was time barred under Rule 3:22

- 4. We only observe that, as defendant described , the PCR court 's "suggestion" that it might be barred was not a ruling by that court.