STATE OF NEW JERSEY VS. VASILIO KOUTSOGIANNIS (13-06-1400 AND 13-07-1902,…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3693-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VASILIO KOUTSOGIANNIS,
a/k/a VASILIO KOUTSGIANNIS,
VASILIO KOUTSOGIANNIA,
VASILLIO KOUTSOGIANNIS,
VISILIO KOUTSOGIANNIS,
and VEE,

          Defendant-Appellant.


                   Submitted September 21, 2020 - Decided October 21, 2020

                   Before Judges Currier and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment Nos. 13-06-1400
                   and 13-07-1902.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven E. Braun, Designated Counsel, on the
                   brief).
            Bradley D. Billhimer, Ocean County Prosecutor,
            attorney for respondent (Samuel Marzarella, Chief
            Appellate Attorney, of counsel; William Kyle Meighan,
            Senior Assistant Prosecutor, on the brief).

PER CURIAM

      Defendant Vasilio Koutsogiannis appeals from the denial of his petition

for post-conviction relief (PCR), contending trial and appellate counsel were

ineffective and the PCR court improperly denied his petition without an

evidentiary hearing. We affirm.

      In January 2013, defendant was involved in a single-car accident in which

he struck a telephone pole. He was transported to the hospital for medical

treatment. During the transport, an emergency medical technician discovered a

small bag of what would later be identified as marijuana inside defendant's right

boot. The police later recovered this bag of marijuana from the hospital. Later,

while defendant was still being treated, a nursing supervisor found a small

cellophane wrapper inside a pack of cigarettes that contained cocaine. The bag

was also turned over to police.

      Defendant was charged in an indictment with a single count of third-

degree possession of a controlled dangerous substance (CDS) in violation of

N.J.S.A. 2C:35-10(a)(1).



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      In March 2013, Tyler Miles contacted the Ocean Township Police

Department and reported he was robbed at gunpoint by two individuals during

a drug transaction which occurred in the assailants' car. Miles provided officers

with a physical description of his assailants, as well as the license plate number

and description of the vehicle. This information led to the arrest of defendant

and his sister.

      Thereafter, defendant was charged in a second indictment with: (1) first-

degree robbery in violation of N.J.S.A. 2C:15-1 (count one); (2) second-degree

possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39 -

4(a) (count two); (3) third-degree unlawful possession of a weapon in violation

of N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b) (count three); (4) fourth-degree

aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4) (count four); (5) third-

degree possession of a CDS in violation of N.J.S.A. 2C:35-10(a)(1) (count five);

and (6) second-degree possession of a firearm by a convicted person in violation

of N.J.S.A. 2C:39-7(b) (count six).

      On February 6, 2015, defendant pled guilty to count one of the second

indictment, amended to a charge of second-degree robbery. On the same day,

defendant also pled guilty to count one of the first indictment, a charge of third -

degree possession of a CDS. Under the plea agreement, the State sought a


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sentence of seven years' incarceration, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, for the robbery charge with a concurrent sentence

of four years flat for the CDS charge. The State agreed to dismiss the remaining

charges.

      During the plea hearing, the judge advised defendant not to hesitate to ask

the court if he had any questions. Defendant responded that he wished to plead

"no contest" so his plea could not be "used against [him] at any further civil

proceedings." The judge informed defendant that "a no contest plea i s not

available in New Jersey[,]" but defendant might be entitled to have the plea

marked inadmissible in a civil proceeding upon a showing of good cause. The

judge further advised defendant that even if he granted a civil reservation, "the

factual basis and the information that is provided in discovery . . . will be

available" in a civil suit.

      Defendant told the judge he was a plaintiff in a civil suit alleging claims

against the police officers who arrested him in connection with the robbery

charges and he wanted to prevent his guilty plea from being used against him as

a defense.    The judge stated he would rule on defendant's request at the

sentencing hearing. The judge permitted defendant to submit a letter brief

before sentencing to demonstrate good cause for the civil reservation.


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      The plea judge asked defendant if he understood the plea bargain.

Defendant indicated that he understood the charges to which he was pleading

guilty, as well as the sentence he was likely to receive. Defendant also ass erted

that no further promises were made to persuade him to plead guilty and that no

one forced, threatened, or otherwise coerced his guilty plea. The judge then

directed plea counsel to elicit a factual basis for defendant's plea.

      The following colloquy took place during the discussion of the CDS

charge:

            [PLEA COUNSEL]: And on that date you were in
            possession of a controlled dangerous substance, what
            they call a CDS, correct?

            [DEFENDANT]: Correct.

            [PLEA COUNSEL]: Namely, that CDS being cocaine,
            correct?

            [DEFENDANT]: Correct.

            [PLEA COUNSEL]: And you understand that that
            Schedule II drug is illegal to possess correct?

            [DEFENDANT]: Correct.

      When plea counsel asked defendant if he wished to plead guilty to

possession of the cocaine, defendant responded:

            What was -- I mean, to be honest with the Court, I don't
            recollect anything after that car accident. But they

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               claim to have found a very small amount of some type
               of substance on me. And I've had no opportunity really
               to go into this case. I wasn't presented with anything.
               It was -- everything was focused on, you know, another
               indictment. And at the last second this got brought to
               my attention. So I've done no -- From my recollection
               and from what I understand, they found a small amount
               of CDS in the vehicle after the car accident. I was in
               trauma for a week. I don't remember barely any of that
               incident. And they claim to have found it. So if indeed
               they found it in the vehicle, it may have been there. I'm
               not disputing the fact.

      Plea counsel reaffirmed the voluntary nature of the plea and again asked

defendant, "you are in fact pleading guilty to possession of the cocaine on

[January 6, 2013] within the Township, correct?"             Defendant responded

affirmatively.

      The plea judge asked defendant whether he had the opportunity to review

discovery related to the CDS charge. Defendant asserted he had reviewed only

"partial discovery." The judge then asked counsel if he had provided defendant

with all of the discovery and discussed it with him. Counsel responded that he

had forwarded all of the discovery to defendant and met with him in the jail on

several occasions to discuss the investigation and discovery materials on all of

the charges.

      Thereafter, defendant confirmed he had received the discovery and had

the opportunity to review it, stating "I was -- I was provided, yes. with this –

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information. . . ." Defendant indicated he was under the impression that the

CDS charge was going to be dismissed and therefore did not "channel all [his]

energy and resource into it."

      The judge advised he would not accept a guilty plea until defendant had

an opportunity to review discovery, understood what he was pleading guilty to,

and asked his attorney questions. Defendant said he only had "one major issue"

relating to the CDS charge:

            [DEFENDANT]: Because, due to -- due to the fact that
            I was just in a serious accident and I was unconscious,
            there's -- from what I was told and from what I
            understand, they found this substance in the vehicle and
            it changed hands three different times before it made its
            way to the police officer. And I'm not -- I'm not 100
            [percent] sure of, you know, who touched it; who did
            what. It's not available in the discovery. Which is really
            the only issue I have --

      The judge characterized this as a "chain of custody issue" and informed

defendant that such issues are generally resolved by juries rather than courts.

The judge told defendant that he needed to ensure his counsel had reviewed the

discovery with him and discussed all possible defenses and suppression issues

before entering a guilty plea.

      The judge stated further:

            Although you may not have [a] specific recollection
            because of the accident, you don't dispute the

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            discovery, you don't dispute that there was cocaine in
            the car, that they could have found it in the car. Those
            are the things that I'm interested in hearing from you.
            Even though you don't have [a] specific recollection,
            it's not unusual that people have accidents who are
            involved in situations where they don't have specific
            recollection but they don't dispute the discovery. They
            recognize that there may have been cocaine in your case
            or cocaine in the car and they don't dispute that they
            found it.

            But I want to make sure that you have all the questions
            that you have, you have them answered before you
            enter a guilty plea today.

      Defendant confirmed he was not disputing that there was cocaine in his

car and it was found by the police, stating:

            [DEFENDANT]: I don't -- Your Honor, I don't dispute
            the fact it was -- that there was -- I mean -- there was -
            - we went to Atlantic City on New Year's and there may
            have been -- there was a bunch of people in the car,
            there may have been. I'm not disputing the fact that I
            was in there.

            THE COURT: Okay. At one point you were aware that
            there was cocaine in the car and you had ability to
            access control over it. You just weren't aware at that
            night that it may still have been in your car?

            [DEFENDANT]: Right.

            THE COURT: Is that what you're saying?

            [DEFENDANT]: Right.



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                                        8
              THE COURT: And you don't dispute the discovery that
              indicates that they found the cocaine in the car? You
              don't dispute that either?

              [DEFENDANT]: No, I don't dispute that.

              THE COURT: Okay. So having said that, you wish to
              plead guilty to that charge?

              [DEFENDANT]: Yes.

              THE COURT: And you are pleading guilty because you
              are guilty?

              [DEFENDANT]: Right.

        After defendant established a factual basis for the robbery charge, 1 he

raised again the issue of obtaining a civil reservation. The judge reiterated that

he would decide the issue at sentencing and inquired of defendant whether the

civil reservation was essential to his plea.       Defendant responded that the

outcome of the civil reservation request did not affect his desire to plead guilty

to the robbery charge. Plea counsel further clarified defendant's position when

questioned by the judge:

              THE COURT: All right. I just wanted to make sure that
              it was clear. What I'm understanding is he is pleading
              guilty to the charge. He wants a civil reservation. But
              it's -- he'll rely on whatever I decide as far as the law,
              won't affect his guilty plea, correct?


1
    Defendant does not challenge his plea to the robbery charge.
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             [PLEA COUNSEL]: Correct.

      At the conclusion of the plea hearing, the judge found there was a factual

basis to accept the plea and that "defendant had freely, knowingly, and

voluntarily given up his right to trial."

      In July 2015, defendant appeared before a different judge for sentencing.

Defendant reaffirmed his guilty pleas and advised the court that the plea judge

intended to address the civil reservation at sentencing. The court then sentenced

defendant to five years in prison subject to NERA for the second-degree robbery

charge and four years in prison for the third-degree CDS charge, to run

concurrent with the first sentence.

      Prior to the conclusion of the sentencing hearing, the judge asked

defendant, "do you have any questions about your sentence, about your pleas in

this case or about anything about the case?" Defendant responded, "I think it 's

just going to be addressed on appeal, Your Honor. I don't want to cause any

more confusion."

      In his direct appeal, defendant only challenged his plea on the robbery

charge. We affirmed his convictions and sentence. State v. Koutsogiannis, No.

A-5772-14 (App. Div. June 8, 2017) (slip op. at 2).




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      In defendant's PCR petition, he raised the following arguments: (1) there

was an insufficient factual basis to support his guilty plea for the CDS charge

and plea counsel was ineffective for failing to review discovery and discuss

possible defenses with defendant; (2) defendant was deprived of effective

assistance of appellate counsel because counsel failed to raise the issue of an

insufficient factual basis to support the CDS charge; and (3) the court must

amend defendant's judgment of conviction to include a civil reservation.

      After entertaining oral argument on the petition, the PCR judge requested

defense counsel provide him with the reasons for defendant's request for a civil

reservation and the status of the civil litigation.

      On January 23, 2019, the PCR court issued an order and written opinion

denying defendant's petition for PCR. In addressing defendant's assertion that

his plea lacked an adequate factual basis, the PCR court found the claim was

procedurally barred because defendant failed to raise it on direct appeal. In

addition, defendant did not claim he was innocent on the CDS possession charge

and therefore allegations of an insufficient factual basis alone were not enough

to invalidate his conviction.

      Furthermore, the judge found the ineffective assistance of plea counsel

claim meritless because there was a factual basis established for the plea.


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Defendant admitted possessing cocaine when questioned at the plea hearing ,

which established the elements of possession of a CDS. His contention in the

PCR petition that the cocaine was found on his person also established a factual

basis for the possession of CDS.

      The PCR court also rejected defendant's argument that appellate counsel

was ineffective for failing to assert there was an insufficient factual basis to

support the CDS charge.      The judge noted the record did not reflect that

defendant provided a certification or affidavit directing appellate counsel to

raise the argument on appeal. Moreover, defendant submitted a pro se appellate

brief in which he only raised arguments related to his robbery conviction,

including an argument that the robbery plea lacked a sufficient factual basis.

The judge stated, "[a]ppellate counsel could not have been expected to raise a

claim on the CDS indictment absent some specific direction or request by

petitioner to do so, especially because the issue was not apparent on the record."

The judge concluded that defendant failed to demonstrate appellate counsel's

representation was deficient and if the argument had been raised on direct

appeal, whether the outcome would have been different.

      In considering defendant's argument that trial counsel was ineffective for

failing to request a civil reservation, the PCR court found the argument was


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procedurally barred because it should have been raised on direct appeal.

Nevertheless, the court addressed and rejected the claim. The court noted Rule

3:9-2 required a showing of good cause for the grant of a civil reservation.

      The PCR court found defendant had not shown good cause.                  In a

supplemental certification submitted to the PCR court, defense counsel informed

the court that defendant had a civil rights claim pending against various police

officers. But the certification failed to explain why defendant needed the civil

reservation, the nature of defendant's claims, and whether the police officer

defendants were seeking to use defendant's judgment of conviction against him.

In addition, defendant did not provide his own certification to demonstrate there

was good cause for the civil reservation.     Therefore, the judge determined

defendant had not established good cause for a civil reservation. The PCR

petition was denied.

      On appeal, defendant raises the follow points:

            I.  THE DENIAL OF POST-CONVICTION
            RELIEF MUST BE REVERSED BECAUSE THERE
            WAS AN INSUFFICIENT FACTUAL BASIS TO
            SUPPORT THE GUILTY PLEA FOR THE
            POSSESSION OF A CONTROLLED DANGEROUS
            SUBSTANCE CHARGE

            II. DEFENDANT   WAS  DEPRIVED    OF
            EFFECTIVE ASSISTANCE OF APPELLATE
            COUNSEL DUE TO COUNSEL'S FAILURE TO

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                                      13
             RAISE THE ISSUE OF AN INSUFFICIENT
             FACTUAL   BASIS  TO  SUPPORT   THE
             CONTROLLED   DANGEROUS   SUBSTANCE
             CHARGE

             III. THIS COURT MUST REMAND THE MATTER
             TO ALLOW THE LAW DIVISION TO AMEND THE
             JUDGMENT OF CONVICTION TO INCLUDE A
             CIVIL RESERVATION AS TO THE CONTROLLED
             DANGEROUS SUBSTANCE CHARGE

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984) and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective

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

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 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.

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

demonstrate trial counsel was ineffective under the Strickland-Fritz test. We



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affirm substantially for the reasons expressed in the PCR court's comprehensive

opinion. We add only the following comments.

      Defendant admitted to the plea court that he was provided with discovery

from trial counsel. He did not dispute his counsel's representation that they met

several times to discuss the discovery and answer any of defendant's questions.

He advised the court he was pleading guilty knowingly and willingly.

Defendant's choice to focus his attention on a charge in another indictment does

not support his contention that trial counsel was deficient in his representation.

Furthermore, defendant did not demonstrate how additional time to review

discovery would have changed the outcome. He asserted to the plea judge

several times that he wanted to accept the plea deal. And he received a favorable

plea deal on the two charges.

      There is no merit to defendant's contention that trial counsel and appellate

counsel were deficient in not raising the issue of the sufficiency of the factual

basis to support the CDS plea. As the PCR judge noted, defendant admitted

during the plea hearing that he had cocaine in his possession, thus satisfying the

elements of possession of a CDS. Therefore, as the contention lacks merit,

defendant has not established appellate counsel was ineffective in failing to raise

the issue on the direct appeal.


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      We also are satisfied defendant has not shown good cause for the grant of

a civil reservation under Rule 3:9-2. As we have stated, "The purpose of [Rule

3:9-2] is to avoid an unnecessary criminal trial of a defendant who fears that a

civil claimant will later use [the defendant's] plea of guilty as a devastating

admission of civil liability." Stone v. Police Dep't of Keyport, 191 N.J. Super.

554, 558 (App. Div. 1983) (emphasis added).

      Here, defendant seeks to suppress the use of his guilty plea for a civil suit

in which he is the plaintiff. He did not provide a certification to the PCR court

to enlighten the court as to the need for the reservation nor did he indicate any

party sought to use the guilty plea against him in the suit. The PCR court's

denial of the civil reservation is supported by the evidence.           Therefore,

defendant has not established trial counsel was deficient in not pursuing the

issue during the sentencing hearing.

      Because defendant has not demonstrated a prima facie case of ineffective

assistance of counsel, he was not entitled to an evidentiary hearing.

      Affirmed.




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