June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAUL PENA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-06-0888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 21, 2008
Before Judges Cuff and King.
Defendant Raul Pena appeals from the denial of his petition for post-conviction relief without an evidentiary hearing. Defendant was sentenced to an eight-year term of imprisonment following his conviction of second degree aggravated assault and fourth degree sexual contact. The victim was his step-daughter.
In support of his petition, defendant argued that his trial attorney was ineffective because his attorney failed to pursue at trial a false allegation of sexual assault by another. He also argued that trial counsel erred by failing to request the sequestration of witnesses, and that his sentence is illegal.
Judge Citta dismissed the petition. In a comprehensive oral opinion, the judge held that the admissibility of the false allegation evidence was considered and rejected on direct appeal. State v. Pena, No. A-3408-01T5 (Feb. 19, 2003). He also held that the evidence was inadmissible pursuant to State v. Guenther, 181 N.J. 129 (2004). Furthermore, Judge Citta found that trial counsel had requested, and the judge had ordered, sequestration of the police witnesses at the Miranda*fn1 hearing conducted at trial. The judge viewed the failure to make a similar request at trial as incapable of altering the outcome of the trial. He also held that defendant's detailed confession prevented finding that any omission by trial counsel caused any prejudice to defendant.
On appeal, defendant raises the following arguments:
I. THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING AS APPELLA[N]T HAD DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
II. APPELLANT WAS ENTITLED TO POST-CONVICTION RELIEF BECAUSE OF THE IMPROPRIETIES OF THE SENTENCE.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, ¶ 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra. First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61-62, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
We concur with the analysis of the petition rendered by Judge Citta. Defendant failed to establish a prima facie case of ineffective assistance of counsel. We affirm substantially for the reasons expressed by Judge Citta in his thorough September 15, 2006 oral opinion.
Furthermore, the sentence imposed is not illegal. Although defendant received a term of imprisonment one year beyond the then presumptive term for second degree offenses, N.J.S.A. 2C:44-1f(1)(c), defendant is afforded no relief due to the ruling in State v. Natale, 184 N.J. 458 (2005) (Natale II).
Natale II is applied retroactively to those cases on direct appeal and those who raised Blakely*fn2 claims at trial or on direct appeal. Id. at 494. Defendant's direct appeal terminated in 2003 and he argued simply that his sentence was excessive.