July 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FERNANDO SANCHEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Ind. No. 99-02-0436.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2007
Before Judges Lefelt and Sapp-Peterson.
Defendant Fernando Sanchez appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). Defendant's conviction and sentence arose out of an attack upon a neighbor who lived across the street from the home of his girlfriend. Masked and armed with a hammer, defendant entered the victim's home and proceeded to attack her. The victim recognized defendant despite the mask. Defendant later admitted his involvement in a statement to police. The PCR judge rejected defendant's claim of ineffective assistance of both trial and appellate counsel. We affirm.
A jury found defendant guilty of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and (b)(2); second-degree burglary, N.J.S.A. 2C:14-2(a)(1); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2(a)(3); second-degree attempted aggravated sexual assault with physical force, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(6); and second-degree attempted aggravated sexual assault while armed with a weapon, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(4). At sentencing, the trial court imposed an aggregate forty-five years incarceration with twenty-five and one-half years parole ineligibility. On appeal, we affirmed the conviction but remanded for resentencing in an unpublished opinion. State v. Sanchez, No. A-2900-00T4 (App. Div. July 24, 2002). Upon re-sentencing, defendant's aggregate sentence was reduced to thirty years imprisonment with a twenty-five and one-half year period of parole ineligibility.
The Supreme Court denied defendant's petition for certification. State v. Sanchez, 174 N.J. 548 (2002).
Defendant filed a PCR petition claiming that trial counsel failed to demand a Miranda hearing to challenge the voluntariness of his statement and also failed to investigate and retain an expert to testify concerning his physical and/or psychological inability to sexually assault the victim, as well as the fact that defendant could not have intended or desired to sexually assault the victim. Defendant claimed his appellate counsel was equally ineffective because counsel did not raise material arguments that should have been gleaned from the record, failed to retain an expert to buttress defendant's position that he was psychologically unable to rape the victim, and failed to explore a possible insanity defense. Defendant also raised a claim of prosecutorial misconduct. In a written opinion, the trial court denied defendant's petition.
On appeal, defendant presents the following arguments:
THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED SANCHEZ OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.
SANCHEZ WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL'S REMARKS TO THE JURY DURING OPENING STATEMENTS WERE HIGHLY PREJUDICIAL AGAINST SANCHEZ (NOT RAISED BELOW).
THE COURT SHOULD REVERSE SANCHEZ'S CONVICTION DUE TO PROSECUTORIAL MISCONDUCT.
THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS THE CLAIMS RAISED BY SANCHEZ.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Carroll's written opinion of October 24, 2005. We add the following comments.
The record indicates that defense counsel did address defendant's substance abuse. Defendant was questioned about the symptoms he experienced during withdrawal from heroin. In his PCR petition, beyond arguing that his substance abuse could have been a mitigating factor, he presented no evidence in the form of affidavits or medical records to support his contentions. Thus, Judge Carroll properly concluded that:
[P]petitioner has failed to demonstrate that an investigation into his drug addiction would cause the result of the proceeding to be different. In order to establish a prima facie claim, petitioner must do more than make mere bald assertions that he was denied [effective] assistance of counsel. State v. Cummings, 321 N.J. Super. [154,] 171 [App. Div.), certif. denied, 162 N.J. 199 (1999)]. For example, when a petitioner claims his trial lawyer inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based on personal knowledge of the person making the statement. The defendant has not set forth the facts that an investigation would have revealed. In this application, defendant merely states that his addiction could have been a mitigating factor or maybe it would have risen to the level of a defense.
"Could have been" and "maybe" are not what the law requires.
Likewise, defendant's contention that at the time he committed the offenses, his mental state may have prevented him from knowing the nature and quality of his actions is not supported by the record. Defendant's admissions at the time the police took his statement included specific details about his actions. His trial testimony demonstrated the level of defendant's understanding of his actions at the time. For example, he testified that before entering the victim's home to commit the offenses, he put a mask over his face to avoid recognition from the victim. Defendant also testified that he was aware that the hammer he took to the victim's home could cause harm, including injury to a person's skull, if struck on the head.
We are also satisfied that Judge Carroll properly concluded that defendant was not entitled to an evidentiary hearing. A trial court may grant an evidentiary hearing on a PCR petition if a defendant has established a prima facie case of ineffective assistance of counsel. State v. Marshall, 148 N.J. 89, 157-58 (citing State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). In order to establish a prima facie case, a defendant must demonstrate a reasonable likelihood of success on the merits of the claim. Id. at 158. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether
[a] defendant is entitled to post-conviction relief, or that [a] defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Id. (citations omitted). Here, as Judge Carroll observed, defendant's proofs failed to meet the requisite showing to justify an evidentiary hearing.
Finally, defendant's claim of ineffective assistance of appellate counsel for failing to raise prosecutorial misconduct during cross-examination of defendant is without merit. Judge Carroll addressed this claim as follows:
In the case at hand, the prosecutor had questioned the defendant about his intent upon entering the home of the victim. The prosecutor asked the defendant "Isn't it true that you're telling this jury now that your intent was to rob them because you know that's not a Count in the Indictment?" At this point, defense counsel objected and the Court sustained the objection and advised a re-phrasing of the question. The prosecutor then asked the defendant, "Mr. Sanchez, isn't it true that the reason you are saying that your intent to rob Ms. Kendall is because that has nothing to do with this case. Isn't that right?" At this point, defense counsel did not object and did not move for a mistrial. Defendant had previously given a statement in which he indicated that his intent was to sexually molest the victim. On direct examination at trial he testified to a contrary intent, i.e., to rob rather than sexually molest the victim. The defendant's credibility was thus placed in issue as to this motive and the prosecutor was accordingly entitled to cross-examine the defendant's credibility on this issue. Accordingly, the Court finds no impropriety in this regard and is satisfied that appellate counsel was not erroneous in not raising the issue of prosecutorial misconduct. Moreover, no evidentiary hearing is necessary to arrive at this determination.
As a reviewing court, we are obliged to first determine whether misconduct occurred. See State v. Frost, 158 N.J. 76, 83 (1999). We agree with the conclusion of Judge Carroll that no misconduct occurred.
Defendant's remaining claim is procedurally barred as already adjudicated. R. 3:22-5. Significantly, the claim of ineffective assistance of trial counsel for failing to move for a new trial was addressed in defendant's direct appeal where we stated, "any new trial motion would have surely failed." Consequently, defendant's renewed claim on this issue is barred by Rule 3:22-5.
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