March 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS MARCELINO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-05-0666.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2008
Before Judges Skillman and Yannotti.
Defendant Luis Marcelino appeals from an order entered on June 21, 2006, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Middlesex County Indictment No. 03-05-666 with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count five); and fourth-degree hindering investigation, N.J.S.A. 2C:29-3b(4) (count six).
Defendant also was charged under Middlesex County Indictment No. 03-05-0601 with fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d.
On November 13, 2003, at a hearing before Judge Jane B. Cantor, defendant pled guilty to first-degree armed robbery, as charged in count two of Indictment No. 03-05-0666. The State agreed to dismiss all remaining counts of that indictment and the charge in Indictment No. 03-05-0601. The State also agreed to recommend that defendant be sentenced as a second-degree offender to a nine-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.
At the plea hearing, defendant responded to the court's questions with the assistance of an interpreter. He asserted that the plea form had been translated into Spanish for him and he understood it. Defendant stated that he was not under the influence of any drug or narcotic. He also stated that his attorney had answered all of the questions he had about the plea and he was satisfied with the advice that had been given to him.
Defendant then provided the court with the factual basis for his plea. Defendant asserted that on December 23, 2002, he was in Woodbridge, New Jersey with co-defendant Alexandro Sanchez. They got into a taxi that was being driven by Andres Valdez. Defendant placed a chain around the driver's neck and Sanchez asked the driver for money. Sanchez had a knife in his possession. The driver gave Sanchez $40. Defendant and Sanchez got out of the car and left. The judge found that there was an adequate factual basis for the plea, and that it had been entered knowingly and voluntarily.
Judge Cantor sentenced defendant on January 26, 2004. The judge found an aggravating factor under N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law), and a mitigating factor under N.J.S.A. 2C:44-1b(7) (defendant has no history of criminal activity and has led a law-abiding life for a substantial period of time before committing the present offense). The judge found that the aggravating factor balanced the mitigating factor. She sentenced defendant in accordance with the plea.
On April 25, 2005, defendant filed a pro se petition for PCR. He raised the following issues:
The defendant was denied [the] effective assistance of counsel.
POINT II: The sentence imposed is manifestly excessive.
POINT III: The sentence imposed is illegal and unconstitutional in violation of the Sixth Amendment of the United States Constitution based on the Blakely decision.*fn1
POINT IV: The defendant was denied the right to speak with the Mexican Consulate[, which was] a clear violation of the International Geneva Pact.
The court assigned counsel to represent defendant. PCR counsel filed an amended petition which raised the following contentions:
Counsel who represented the Petitioner was ineffective for not making Petitioner aware of his possibility of prevailing at trial.
Counsel who represented the Petitioner was ineffective because he did not negotiate a better plea negotiation and the sentence imposed on petitioner was manifestly excessive as a result of the ineffectiveness of petitioner's counsel.
Counsel who represented the Petitioner was ineffective for failing to properly argue for petitioner's right to speak with the Mexican Consulate which constituted a clear violation of international law.
Counsel who represented the Petitioner was ineffective in that he did not properly articulate the aggravating factors, the mitigating factors and persuade the Court to weigh them accordingly.
Counsel was ineffective in that he did not ascertain that Petitioner fully understood the terms, conditions and provisions of the plea agreement.
Cumulative Errors Denied the Petitioner the Right to a Fair Trial and Fair sentence consistent with the Sentencing code.
On June 12, 2006, Judge Cantor heard argument on the petition. The judge found that there was no need for an evidentiary hearing. She noted that under State v. Cameron, 104 N.J. 42, 54 (1986), defendant would have to show that his faculties were "prostrated" to the extent that he could not have acted with the requisite mental state. The judge observed that defendant had not presented a report from a psychologist or psychiatrist indicating that, at the time he committed the offense, "there was a prostration of [defendant's] faculties." The judge observed that defendant had been able to communicate with the police officers after his arrest and advise them where they could find Sanchez. She concluded that defendant had not presented sufficient factual support for this claim but stated that she would reconsider her determination if defendant provided an expert report.
Judge Cantor also rejected defendant's assertion that his trial attorney was ineffective because he failed to negotiate a better plea agreement. The judge stated that defendant "got a phenomenal deal." She added that:
[i]n fact, when I looked at my sentencing, what I said to the lawyer was [that] I wasn't sure I was going to accept this plea negotiation, that I thought he got too good a deal. And I sort of said, well, I understand the State sometimes has witness problems and there are other reasons that people negotiate deals other than what the court sees because I thought this was a pretty violent crime and we depend on our taxicab drivers to get out and transport us.
The judge additionally pointed out that trial counsel had effectively argued the aggravating and mitigating factors.
The judge also addressed defendant's claim that he was denied the effective assistance of counsel because his trial attorney failed to "properly argue" for defendant's right to speak with the Mexican consulate, which defendant alleged was a "clear violation" of international law, specifically the Vienna Convention on Consular Relations and Optional Protocol on Disputes, Apr. 24, 1963, art. 36, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 (VCCR). The judge determined, however, that defendant failed to establish that he was prejudiced by the alleged lack of advice concerning the VCCR. The judge stated, however, that she would re-open the matter if the Supreme Court of the United States issued a decision warranting reconsideration of her determination.
The judge entered an order dated June 21, 2006, denying defendant's petition for PCR. Defendant appeals and raises the following issues.
POINT I: [DEFENDANT] WAS DEPRIVED [OF HIS RIGHT TO] EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Failure to Raise Intoxication Defense.
B. Failure to File Motion to Suppress Based Upon Violation of the VCCR.
C. Failure to Effectively Argue Mitigating Factors at Sentence
POINT II: THE TRIAL COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING.
POINT III: THE SENTENCE IMPOSED UPON [DEFENDANT] IS ILLEGAL.
THE CUMULATIVE EFFECT OF THE AFOREMENTIONED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WARRANTS REVERSAL OR, IN THE ALTERNATIVE, AN EVIDENTIARY HEARING.
We have carefully considered the record in light of defendant's arguments and the applicable law. We are convinced that the appeal is entirely without merit. We affirm the order denying PCR relief substantially for the reasons stated by Judge Cantor in the oral decision that she placed on the record on June 12, 2006. We add the following comments.
Defendant's claim that he was denied the effective assistance of trial counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on such a claim, the defendant must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). The defendant must establish that his counsel's handling of the matter was "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 140 S.Ct. at 2066, 80 L.Ed. 2d at 695.
The defendant also must show that his attorney's deficient performance prejudiced his defense. Id. at 687, 140 S.Ct. at 2064, 80 L.Ed. 2d at 693. "The defendant must establish that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
Here, Judge Cantor correctly determined that defendant had failed to present a prima facie case of ineffective assistance of counsel under the Strickland/Fritz test. The judge found that counsel had negotiated a very favorable plea and effectively argued the aggravating and mitigating factors at sentencing.
At the sentencing proceeding, defense counsel sought findings on mitigating factors under N.J.S.A. 2C:44-1b(6) (defendant will compensate the victim for the damage or injury he sustained); N.J.S.A. 2C:44-1b(7) (defendant does not have a history of criminal activity and has led a law-abiding life for a substantial period of time before committing the charged offense); and N.J.S.A. 2C:44-1b(12) (willingness of defendant to cooperate with law enforcement authorities).
In ruling on defendant's petition for PCR, Judge Cantor concluded that trial counsel's presentation was as effective as was warranted by the facts. The judge determined that the record did not support findings of any additional mitigating factors and, even if such findings had been made, they would not have resulted in a different sentence. In our view, the record fully supports the judge's decision on this issue.
Judge Cantor also correctly found that defendant had not established that his counsel erred by failing to raise an intoxication defense. As the judge pointed out in the decision that she placed on the record, defendant did not present any evidence which established that, at the time he committed the offense, his faculties were "prostrated" to such an extent that he could not form the mental state required for conviction. Cameron, supra, 104 N.J. at 54. The judge stated that she would reconsider her determination if defendant submitted an expert report addressing that issue. It appears that no such report was provided to the trial court.
Furthermore, the judge correctly found that defendant had not shown that he was prejudiced by his counsel's alleged failure to advise him concerning the VCCR. The VCCR provides, among other things, that when requested to do so, "competent authorities of the receiving State" shall inform "the consular post of the sending State," when "a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner." State v. Jang, 359 N.J. Super. 85, 92 (App. Div.) (quoting VCCR, supra, art. 36(b), 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261), certif. denied, 177 N.J. 492 (2003).
To establish remedial prejudice resulting from a violation of the VCCR, a defendant must present more than "vague and general" allegations as to what might have occurred if the defendant had been informed of his right to contact the consulate office. Id. at 94 (quoting State v. Cevallos-Bermeo, 333 N.J. Super. 181, 188 (App. Div.), certif. denied, 165 N.J. 607 (2000)). In this matter, defendant voluntarily made a statement to the police after he was arrested. He later pled guilty to armed robbery. Defendant's assertion that he might have acted differently if his counsel had informed him that he had the right to contact the consul is insufficient to establish that he was prejudiced by the alleged lack of advice concerning the VCCR.
Defendant also argues that his sentence is illegal. He maintains that his sentence violates his right to a trial by jury under the Sixth Amendment to the United States Constitution as interpreted in Blakely because his sentence is longer than the presumptive term for second-degree offenses that applied when he was sentenced. Defendant therefore argues that he is entitled to relief under State v. Natale, 184 N.J. 458 (2005). We disagree.
Relief under Natale is only available to defendants whose cases were pending on direct appeal when Natale was decided, or who raised a Blakely claim at trial. Id. at 494. Defendant was sentenced on January 26, 2004. Defendant never filed a direct appeal challenging his conviction or sentence. He never raised a Blakely challenge to the sentence. In these circumstances, defendant is not entitled to relief under Natale.
We have considered the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).