Justice Leonard Livote
Encarnacion moved to vacate his conviction for murder, among other things, arguing he was denied effective assistance of counsel. He alleged his trial attorney failed to adequately counsel him regarding a plea offer by prosecutors, and failed to properly move to suppress defendant’s inculpatory statements based on his unlawful detention, among other things. Defendant’s former trial counsel asserted he remembered prosecutors conveying a plea offer with a fixed 10 year sentence, stating he discussed the matter with Encarnacion, as he always did with clients, yet defendant chose to reject the offer. The court found, based on the attorney’s averments, that prosecutors did make a plea offer, and same was discussed with, but rejected by defendant. It noted Encarnacion’s argument was supported only by him, concluding “there is no reasonable possibility that it is true.” The court also found defendant’s omnibus motion did request a Dunaway hearing for suppression, which the trial court denied on the ground it did not contain necessary sworn allegations of fact. It stated a showing counsel failed to make a pretrial motion did not, alone, establish ineffective assistance of counsel. Hence, Encarnacion’s motion to vacate the judgment was denied.
