October 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE VELEZ AKA PITO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94-08-1005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Lisa and Baxter.
Defendant appeals from an order denying his second post-conviction relief (PCR) petition. He raises the following arguments:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND POST-CONVICTION RELIEF COUNSELS.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. PETITIONER ARGUES HE WAS DENIED THE [EFFECTIVE] ASSISTANCE OF COUNSEL.
C. THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL.
D. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO TRIAL BY JURY AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT BECAUSE HIS SENTENCE VIOLATES THE DICTATES OF STATE V. NATALE AND BLAKELY V. WASHINGTON. U.S. CONST. AMEND., XIV, N.J. CONST. (1947), ART. 1, PARS. 8, 9, 10 AND 11.
We reject these arguments and affirm.
Tried to a jury in February 1997, defendant was convicted of murder and related crimes that he committed in 1994. On April 4, 1997, Judge Riva, who had presided over the trial, sentenced defendant to life imprisonment with a thirty-year parole disqualifier for the murder conviction. The convictions on all other counts were either merged or the subject of concurrent sentences. As a result, defendant's aggregate sentence is life imprisonment with a thirty year parole disqualifier.
Defendant appealed. In an unpublished opinion, we affirmed his conviction and sentence on November 9, 1999. State v. Velez, No. A-5443-96T4 (App. Div. November 9, 1999). The Supreme Court denied defendant's petition for certification. State v. Velez, 163 N.J. 396 (2000).
On May 23, 2000, defendant filed his first PCR petition. After conducting an evidentiary hearing, at which defendant was represented by PCR counsel, Judge Riva issued a written opinion and entered an order on November 5, 2001 denying the petition. We affirmed the order in an unpublished opinion, State v. Velez, No. A-2516-01T4 (App. Div. November 6, 2003), and the Supreme Court denied defendant's petition for certification. State v. Velez, 179 N.J. 369 (2004).
Acting pro se, defendant submitted to the trial court his second PCR petition, which was received by the court on March 22, 2004 and filed on June 15, 2004. On June 17, 2004, Judge Riva ordered that counsel be assigned to represent defendant on this petition. The assignment was made on or about September 1, 2005.
One of the issues raised by defendant was that during jury voir dire he was improperly barred from participating in sidebar or in-chambers discussions between the court, counsel and prospective jurors. Defendant claimed that his trial counsel improperly waived his right to be present and did not inform defendant of the substance of what occurred during those discussions. Defendant further contended that, had he been informed of the discussions, he would have insisted that his attorney move to strike for cause at least one juror who remained on the jury, or, alternatively, exercise a peremptory challenge for that juror. Defendant argues that, as a result, he was denied a fair trial. On that issue, Judge Riva determined that an evidentiary hearing was required. However, with respect to all of the other issues defendant raised, the judge was of the view that no material facts were in dispute and the issues could be decided without an evidentiary hearing.
The evidentiary hearing was conducted on June 19, 2006. Judge Riva read into the record from the trial transcript the colloquy that occurred prior to jury selection. In open court, with defendant present, defendant's trial counsel made clear to the judge that defendant waived his right to be present at sidebar and in-chambers conferences with prospective jurors. Then defendant and his trial counsel both testified under oath. Defendant stated he had no recollection of the colloquy from the trial court transcript. He claimed his trial counsel never discussed with him anything that was discussed at sidebar or in chambers. Defendant's trial counsel testified to the contrary. He recalled the waiver colloquy at the time of trial. He said he discussed the issue with defendant and defendant agreed that the waiver was the best course to take and authorized him to so advise the court. Defendant's trial counsel further testified that during each discussion with a prospective juror outside of defendant's presence, he took notes, after which he returned to counsel table and, using the notes, related the substance of the conversations to defendant. Counsel explained that he had tried several hundred criminal jury trials, including about twenty to twenty-five homicides, and this was his standard practice, which he followed in this case.
The judge credited the testimony of defendant's trial counsel. Accordingly, the judge found no deficient conduct on that counsel's part in waiving his client's presence at sidebar or in-chambers discussions with prospective jurors.
Defendant's remaining contentions of ineffective assistance of trial counsel were that he failed to object to the prosecutor's introduction of "other crimes" evidence and that he failed to request a jury instruction on imperfect self-defense. Upon reviewing the prior proceedings, Judge Riva rejected these arguments because defendant had raised the identical issues on direct appeal, and they were rejected.
Defendant also argued that his first PCR counsel was ineffective for failing to raise the "prior crimes," imperfect self-defense, and lack of presence during jury voir dire issues. The judge rejected those arguments, concluding that because none of the issues had merit, there was no basis upon which to conclude that defendant's first PCR counsel was ineffective for not raising them.
Defendant also argued that his sentence was illegal in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). Judge Riva rejected the argument, noting that in Natale, the Court directed that its holding be given only pipeline retroactivity, see Natale, supra, 184 N.J. at 494, and defendant's case left the direct appeal pipeline in 1999.*fn1
Judge Riva issued a twenty-six-page written opinion on August 8, 2006, setting forth his findings and conclusions as we have summarized. He entered an order on August 22, 2006 denying defendant's petition for the reasons set forth in his written opinion.
We affirm substantially for the reasons expressed in Judge Riva's comprehensive and well-reasoned opinion of August 8, 2006. His factual findings on the voir dire issue, emanating from the evidentiary hearing of June 19, 2006, are well supported by the record of that hearing, and we have no occasion to interfere with them. State v. Johnson, 42 N.J. 146, 162 (1964). The findings support the judge's conclusion that trial counsel's conduct in connection with the voir dire process was not deficient.
From our review of the record, we are further satisfied that the other issues raised by defendant with respect to his trial counsel did not meet either prong of the Strickland/Fritz*fn2 test. Trial counsel was not deficient for not raising meritless issues. Had they been raised, they would have been rejected, as a result of which the outcome of the proceeding would not have been different. Defendant's arguments pertaining to his first PCR counsel were properly rejected for the same reason.
We also concur with Judge Riva's analysis regarding defendant's sentence. In addition to being out of the direct appeal pipeline five years before Natale was decided, the crime of murder, which has no presumptive sentence under New Jersey's Criminal Code, is not subject to the Blakely and Natale principles. State v. Abdullah, 184 N.J. 497, 507-08 (2005).
No further discussion of defendant's arguments is warranted. R. 2:11-3(e)(2).