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N.J.S.A. 2C:20-4. On July 18, 2003, the judge sentenced defendant to three years probation. Defendant did not
appeal that sentence."> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2549-05T52549-05T5
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK R. BARONE,
Defendant-Appellant.
Submitted December 5, 2006 - Decided April 17, 2007
Before Judges Coburn and R. B. Coleman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,
Indictment No. 01-07-1288.
William W. Graham, attorney for appellant.
Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P.
Stalford, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Frank R. Barone appeals from the denial of his petition for post-conviction relief (PCR). On June 9, 2003,
pursuant to a plea agreement, defendant entered a plea of guilty to one count of theft by deception, N.J.S.A. 2C:20-
4. On July 18, 2003, the judge sentenced defendant to three years probation. Defendant did not appeal that
sentence.
Following a charge of violation of probation, defendant retained counsel and filed a petition for PCR on October 24,
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2005. At the PCR hearing on December 9, 2005, the judge denied defendant's petition. We affirm.
On appeal, defendant raises the following points:
POINT I: DEFENDANT SUBMITS THAT THERE EXISTS "A REASONABLE PROBABILITY THAT,
BUT FOR DEFENSE COUNSEL'S UNPROFESSIONAL ERRORS, THE RESULT OF THE
PROCEEDINGS WOULD HAVE BEEN DIFFERENT."
A. DEFENSE COUNSEL FAILED TO FILE A MOTION TO DISMISS THE
INDICTMENT.
B. DEFENSE COUNSEL FAILED TO ESTABLISH A FACTUAL BASIS FOR THE
PLEA OF GUILTY TO THE INDICTMENT.
C. DEFENSE COUNSEL PERSUADED DEFENDANT TO PLEAD GUILTY TO AN
INDICTMENT WHICH THE STATE COULD NOT PROVE.
To make the requisite prima facie showing of ineffective assistance of counsel, defendant must show a "reasonable
likelihood of succeeding" under the two-pronged test articulated by the United States Supreme Court in Strickland
v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 674, 697 (1984), and adopted by our Court in
State v. Fritz, 105 N.J. 42, 58 (1987). Our Court has articulated the following test: "[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, supra, 105 N.J. at 58. This standard is applied to
claims of ineffective assistance of counsel at both the trial and appellate level. Defendant has failed to make the
requisite showing in this matter, and we affirm the denial of his petition for PCR.
Defendant's brother, Angelo Barone, is the owner of ABCO Masonry. Nutmeg Development Corporation contracted
with ABCO for a construction job and ABCO referred the job to Collective Concrete, the company that employed
defendant. At the job site, defendant held himself out to be the foreperson and the work was completed.
Following completion of the work, defendant requested as payment for the work a check to be made out in his
name and he offered a discount for immediate payment. Nutmeg refused and defendant then requested that the
check be made out to ABCO, his brother's company. Nutmeg agreed and gave defendant a check in the amount of
$7,065, payable to ABCO.
Defendant's brother cashed the check from Nutmeg at Community Check Cashing. Defendant divided the money
between himself, his brother, and the workers on the job, but Collective Concrete did not receive any of the
proceeds. When Collective Concrete contacted Nutmeg regarding payment, Nutmeg realized its error, issued a stop
payment order for the check issued to ABCO, and contacted the police. As a result, Community Check Cashing was
left with the $7,065 deficit due to defendant's conduct.
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In support of his ineffective assistance claim, defendant contends that his trial counsel was deficient in his failure to
file a motion to dismiss the indictment. Defendant now argues that the State failed to establish the essential
elements of theft by deception in presenting the case to the grand jury and, therefore, defendant's prior counsel
should have moved to dismiss the indictment. Specifically, defendant points to the failure of the State to present
the testimony of the secretary who actually issued the check. This deficit, defendant claims, resulted in the State's
inability to prove the essential elements of theft by deception, thereby rendering the indictment defective and
legally deficient.
Despite defendant's assertions to the contrary, there was sufficient testimony presented to the grand jury to
support the indictment. Detective Michael Jelinski of the Tinton Falls Police Department showed, through his
testimony, the elements of theft by deception. Defendant accepted the property of another, as he was not
authorized to accept payment on behalf of Collective Concrete. Additionally, defendant held himself out as the
foreman during the completion of the work and sought to secure payment when the work was completed when he
was in a position to do neither. Defendant even offered a discount for immediate payment, implying that he was
empowered to make such deals. Defendant then sought, successfully, to have the payment made out to one other
than his employer, Collective Concrete, so that he could obtain the proceeds of the work directly. As a result, there
was no need for the testimony of the secretary who actually issued the check, especially in light of the fact that she
likely issued the check at a supervisor's direction. The case to the grand jury does not require proof beyond a
reasonable doubt. "[T]he grand jury must determine whether the State has established a prima facie case that a
crime has been committed and that the accused has committed it." State v. Hogan, 144 N.J. 216, 227 (1996). There
was sufficient evidence in the record for the State to satisfy that burden. Consequently, defendant has failed to
show that trial counsel's failure to move to dismiss the indictment was an error of constitutional dimension.
Defendant next argues that his trial counsel's performance was deficient for allowing him to plead guilty, even
though the State failed to establish a factual basis for the plea. Defendant again relies on the absence of the
testimony of the secretary who actually issued the check to defendant in support of his argument that the State
failed to show reliance on defendant's deception, an essential element of theft by deception. N.J.S.A. 2C:20-4.
Defendant claims, through a Certification dated October 19, 2004, that his decision to enter into the plea agreement
was not "voluntary" in the sense that he entered into the plea to get out of the correctional facility where he was
incarcerated because of his inability to make bail. Thus, defendant argues that the failure to elicit a factual basis
entitles him to post- conviction relief.
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However, even assuming that defendant's plea was "involuntary" in the sense that it required a factual basis to pass
constitutional muster, State v. Mitchell, 126 N.J. 565, 577 (1992), defendant has again failed to show that there did
not exist a factual basis in support of his guilty plea. At his plea hearing, defendant admitted the essential facts - that
he was not authorized to accept payment on behalf of Collective Concrete, that Collective Concrete were entitled to
payment, and that at his direction, Nutmeg gave him a check made out to his brother's company. As a result, a
factual basis did exist for defendant's plea, and there was no error by trial counsel in this regard.
Finally, defendant contends that his counsel was ineffective in that he persuaded defendant to plead guilty to an
indictment which the State could not prove. During the plea hearing, defendant stated that he entered into the
plea agreement voluntarily, that he was not forced or coerced into entering the plea, and that he was, in fact, guilty
of theft by deception. Defendant's belated assertions of coercion by counsel were understandably rejected by the
PCR judge, to whose credibility assessment we must defer. Defendant's argument that he was denied effective
assistance of counsel must fail.
We conclude that the judge's disposition of the merits of defendant's PCR petition was appropriately based upon
the evidence received, which provided substantial credible support for the court's conclusions that defendant
voluntarily and knowingly entered the plea of guilty. There is no evidence of professional misconduct by
defendant's attorney.
Affirmed.
(continued)
(continued)
7
A-2549-05T5
April 17, 2007
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