March 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEXIS DEJESUS, A/K/A ALEXIS DEJESUS-REYES, ALEXIS RODRIGUEZ, AND "FRIJOL," DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-01-0102.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2008
Before Judges Lisa and Alvarez.
Defendant Alexis DeJesus appeals a February 9, 2007 order denying him post-conviction relief (PCR) and an evidentiary hearing. We affirm.
Tried to a jury, defendant was convicted on May 18, 2000, on Essex County Indictment No. 99-01-0102, as follows: second-degree burglary, N.J.S.A. 2C:18-2 (count one); three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts two, three and four); second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count five); aggravated manslaughter, N.J.S.A. 2C:11-4 (count six);*fn1 felony murder, N.J.S.A. 2C:11-3(a)(3) (count seven); fourth-degree unlawful possession of a weapon, a knife or knives, N.J.S.A. 2C:39-5(d) (count ten); and third-degree possession of a weapon, a knife or knives, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven).
On July 14, 2000, defendant was sentenced to forty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the felony murder and a consecutive eight-year term subject to NERA on each of the three second-degree aggravated assault counts. The second-degree burglary, the aggravated manslaughter, and the weapons offenses were merged into the felony murder. Defendant's aggregate sentence was sixty-four years.
On direct appeal, although we affirmed defendant's convictions, we remanded for resentencing on the felony murder to strike the NERA parole ineligibility because the current version of the NERA statute was not in effect when the offenses were committed.*fn2 State v. DeJesus, No. A-5736-00 (App. Div. February 17, 2004). On June 4, 2004, the Supreme Court denied a petition for certification on the direct appeal. State v. DeJesus, 180 N.J. 52 (2004).
Defendant filed his first petition for PCR on September 17, 2004, and refiled on June 19, 2006. He submitted a certification in support of the petition on December 6, 2006. Sometime thereafter, defendant was assigned counsel by the Office of the Public Defender, and counsel filed a supplemental brief. On this appeal, defendant's attorney raises the following point:
DEFENDANT SHOULD HAVE BEEN AFFORDED AN EVIDENTIARY HEARING AS TO TRIAL COUNSEL'S ALLEGED INEFFECTIVENESS FOR NOT PURSUING PLEA NEGOTIATIONS
In his pro se brief, defendant asserts:
LACK OF SUFFICIENT EVIDENCE TO INDICT DEFENDANT AND IMPROPER COMMENT OF THE PROSECUTOR IN VIOLATION OF DEFENDANT['S] SIXTH, AND FIFTH AMENDMENT RIGHTS.
ELEMENTS OF FELONY MURDER NOT CHARGED TO THE GRAND JURY VIOLATED DEFENDANT'S FIFTH AND SIXTH AMENDMENT RIGHTS.
PASSION/PROVOCATION INSTRUCTION SHIFT[ED] THE BURDEN OF PROOF ON THE DEFENDANT THAT VIOLATED HIS RIGHT TO A FAIR TRIAL.
FLIGHT CHARGE WAS PLAIN ERROR DENYING DEFENDANT RIGHT TO A FAIR TRIAL.
The charges arose from brutal stabbings involving several victims, which occurred on July 25, 1998. The incident left one man dead and three others seriously injured from multiple stab wounds. Acquaintances of defendant and his co-defendants testified at trial as to admissions made by defendant. The jury also heard prior inconsistent statements from some recanting witnesses. Although defendant admitted being present during the initial confrontation, he claimed that he did not go inside the building where the actual injuries were inflicted, that he did not fight with anyone, and that he saw no knives. The incident resulted from angry words casually exchanged between defendant and his companions and one of the victims and the victim's cousin.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), which the New Jersey Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). While performing this analysis, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. In order to fairly assess attorney performance, every effort must be made to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Ibid.
Under the first prong of the Strickland-Fritz test, the issue is whether counsel's performance was deficient. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. This means that the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Ibid. The Strickland court chose not to make this prong more specific, stating, "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
Under the second, and more difficult, prong of the test, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The Fritz Court determined that "a conclusive presumption of prejudice is inappropriate except in cases exemplified by egregious shortcomings in the professional performance of counsel." Fritz, supra, 105 N.J. at 61. The Court also held that "purely speculative deficiencies in representation are insufficient to justify reversal." Id. at 64 (citing U.S. v. Rodgers, 755 F.2d 533, 541 (7th Cir.), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed. 2d 656 (1985) (holding counsel's failure to interview certain witnesses non-prejudicial as no showing had been made that said witnesses would offer favorable testimony); Aldrich v. Wainwright, 777 F.2d 630, 637 (11th Cir. 1985), cert. denied, 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed. 2d 297 (1986) (holding counsel's failure to take certain depositions or interrogatories non-prejudicial because defendant had not identified specific information that would have been revealed).
Defendant contends that he should have been afforded an evidentiary hearing as to trial counsel's alleged ineffectiveness in not pursuing plea negotiations. "[P]lea bargaining is a critical stage of the criminal proceeding at which the right of representation attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). Counsel's misadvice of sentencing exposure that induces defendant to reject a plea agreement he otherwise would have accepted would likely constitute prima facie ineffective assistance such that an evidentiary hearing would be required. Ibid. Similarly, defendant asserts, his attorney's failure to make an offer to the State establishes a prima facie case of ineffective assistance of counsel. Accordingly, at the PCR hearing, defendant argued that trial counsel's failure to present a plea offer to the State, as was then the practice in Essex County, was per se ineffective assistance. Defendant also contends that trial counsel's ineffectiveness is underscored by his failure to make a plea offer to the State when the case appeared to weaken due to significant State witnesses recanting prior inculpatory statements.
It is clear, however, that "a defendant has no legal entitlement to compel a plea offer or a plea bargain; the decision whether to engage in such bargaining rests with the prosecutor." State v. Williams, 277 N.J. Super. 40, 46 (App. Div. 1994). The prosecutor who tried defendant's case certified, in opposition to the PCR petition, and reiterated at the PCR hearing, that plea bargaining was simply never an option in this case. Because the crimes were "especially heinous," defendants were members of the Latin Kings gang, and the State had "solid identifications" by multiple victims and defendants' friends, in addition to confessions, the State would do no less than try the matter. The prosecutor said, "The State had no interest in entertaining any plea overtures. There was public interest in prosecuting these defendants to the fullest. Any proffered offer to plea-bargain would have been rejected."
Defendant further alleges that although the indictment originally mistakenly listed assault as the predicate felony for the felony murder count, his trial attorney did not explain to him that the indictment could be amended. Counsel assured him that the State would not be able to prove the felony murder count because the predicate felony was an insufficient basis for the charge. According to defendant, even the substitute predicate felony of burglary was questionable because it was based on entering the common area of a multi-family dwelling. This mistaken advice, he claims, made counsel's failure to negotiate a plea all the more egregious, as defendant was lulled into a false sense of security about the outcome of the trial.
Defendant's contention that the State would have entertained a plea offer had one been made is nothing more than a bald assertion and unwarranted speculation. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). For this reason, his ineffective assistance of counsel claim fails, at the least, under the second prong of the Strickland-Fritz test. He has not demonstrated a reasonable probability that, but for his attorney's purported error, the outcome of the proceeding would have been different.
As the PCR judge said:
There may be some areas where there may be arguably minimal chinks in the State's case. But the proofs as to . . . the conduct of these three defendants, including Alexis DeJesus demonstrate horrifying, heinous acts and consequences.
When we talk here about invading a house, once they invaded the house, they cut people to ribbons. And the proofs, by their own admissions in statements to witnesses called by the State who were lay witnesses who at points were harboring [defendants] . . . and statements that they made to the police, made the case a case in which the proofs were strong, if not overwhelming. . . . .
The fact that these three men . . . accompanied by others and weapons, entered the house and committed the acts they did, and then admitted to their friends, as well as to the police, their conduct and the consequences makes it clear to this Court that the State's position that plea bargaining was not available or entertained is an appropriate position. . . . .
And there is no basis for concluding that the State would entertain any such offer in light of the horrific conduct, actually, the entry into a private residence, the invasion of that house, the dismembering or disemboweling that took place there, the proofs that the State had, the public interest aspect of it, all warrant the position that the State has taken.
Rule 3:22-10 places the decision to conduct an evidentiary hearing squarely within the PCR judge's discretion. State v. Preciose, 129 N.J. 451, 462 (1992). In this instance, the court's exercise of discretion in refusing to conduct an evidentiary hearing was clearly reasonable.
Defendant's assertions about the inadequacy of the grand jury proceedings are made too late. Any such challenge is barred pursuant to Rule 3:10-2(c), which states:
The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment or accusation . . . must be raised by motion before trial. Failure to so present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver.
See also State v. Del Fino, 100 N.J. 154, 160 (1985) (holding that Rule 3:10-2 mandates that all defenses and objections based on defects in the institution of proceedings or in the indictment be raised before trial). The assessment of "good cause" sufficient to excuse delay in objecting to a defect in grand jury proceedings is fact-sensitive. The decision can be made only after close scrutiny of the circumstances of each case. Ibid. Defendant, however, does not proffer any explanation whatsoever for his failure to raise this challenge prior to his trial. He has therefore failed to establish good cause justifying any belated examination of the indictment.
Defendant also challenges the model passion/provocation jury charge and the model flight charge, which were given to the jury. We note that on defendant's direct appeal, he also challenged the conspiracy instruction given to the jury.
Rule 3:22-4 explicitly bars consideration on PCR of issues that could have been raised in prior proceedings, but were not. Exceptions to the rule are made only where enforcement of the bar would result in fundamental injustice or violation of the defendant's constitutional rights. R. 3:22-4. Defendant is attempting to revisit the issue of jury charges on this PCR petition in direct violation of this rule. The time to challenge the passion/provocation and flight instructions was on direct appeal, simultaneously with defendant's challenge to the conspiracy instruction. Nothing asserted in defendant's brief raises even the specter of a fundamental injustice or a constitutional violation. These claims lack sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(2).