June 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IVELISA FIGUEROA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-10-1184.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2010
Before Judges Graves and Newman.
Defendant Ivelisa Figueroa appeals from an order denying her petition for post-conviction relief (PCR). We affirm.
The relevant facts are as follows. Defendant was instrumental in setting up the robbery of an older person, Mohamad Maghoub, who was romantically interested in her. Defendant recruited three other individuals to participate in the robbery. The plan was for defendant to go to the victim's house and to signal the participants by telephone that the door was open. She would also try to let the victim's dog out of the house at the time. The first attempt was aborted when other people were at the house on that evening. Defendant was reluctant to proceed. However, the participants met with her again, and she agreed to follow through the next night. She called a co-defendant, Juan Soto, at around 9:30 p.m. from the victim's house, indicating that the door was open. She knew that Soto, Marcus Antonio "Poncho" Robles, and Elvis "Bechy" Terron would be armed. Timmy Terron, Elvis's brother, drove them and waited in the car outside Maghoub's house.
Approximately fifteen minutes after the telephone call, Soto, Robles, and Elvis Terron burst into the house. Robles carried a cross bow, and Soto carried a sawed-off shotgun. The victim screamed and tried to grab the shotgun. In the struggle that followed, the gun accidentally went off. Defendant was shot in the leg. She fled and Timmy Terron gave her a ride to his house.
Elvis Terron covered the victim's mouth with a roll of tape. Robles grabbed the shotgun and hit the victim numerous times in the face and head, bludgeoning him to death. Soto took cash from the victim's pocket, as well as two rings and two bracelets. They ran out the back door and proceeded to Timmy Terron's house. They split the money and jewelry, with defendant receiving eighty dollars.
The Terron brothers confessed to the crimes and pleaded guilty. They implicated defendant and were willing to testify against her at trial. Defendant also confessed to the crimes. At the time, she was over seventeen years old. Her parents were in Puerto Rico, but the police contacted her aunt to seek permission to speak to defendant about the events that resulted in the murder.
Defendant was indicted for murder, felony murder, first-degree robbery, conspiracy to commit robbery, first-degree kidnapping, burglary, second-degree possession of a weapon for an unlawful purpose, and third-degree possession of a weapon. Because she was under eighteen years of age, the State moved to waive her to the adult court. Judge Forrester heard the matter and determined that the case should proceed to a waiver hearing. A waiver hearing was then held. Judge Forrester concluded that there was a reasonable probability of defendant's rehabilitation by the age of nineteen when defendant was seventeen-years-and-seven-months old at the time. However, he found that even though there was a likelihood of rehabilitation, such probability did not substantially outweigh the reasons for waiver, N.J.S.A. 2A:4A-26(a)(3). The trial court found that the serious nature of the offense and the need for deterrence were not substantially outweighed by the probability of rehabilitation.
In describing the offense, Judge Forrester had this to say in his written opinion:
The plan was for the juvenile to use Mr. Maghoub's interest in her to their advantage by going to his home and assisting the others to gain entry and execute the robbery. From the evidence produced at the Phase I (probable cause) hearing, it would appear that the only area of disagreement concerns the issue of whether the plot involved an intent to kill the victim. But even if considered in a light most favorable to her, the armed robbery which was planned and carried out in this case, is among the most grave and serious offenses which our system of justice must deal with.
Pursuant to the plea agreement, defendant pled guilty on September 8, 1999 to first-degree aggravated manslaughter and first-degree robbery. The State agreed to recommend that defendant receive a twenty-one year prison term with ten-andone-half years of parole ineligibility for the aggravated manslaughter and a consecutive fifteen-year term with seven-and- one-half years of parole ineligibility for armed robbery. The plea agreement resulted in an aggregate term of thirty-six years with eighteen years of parole ineligibility. In making this particular offer, the State had reduced its original offer of fifty years with twenty-five years of parole ineligibility. Defendant was sentenced in accordance with the plea agreement.
This court affirmed the sentence, finding that it was neither manifestly excessive, unduly punitive, and did not constitute an abuse of discretion. State v. Figueroa, No. A-3456-99 (App. Div. Sept. 13, 2000). The Supreme Court denied the petition for certification. State v. Figueroa, 167 N.J. 88 (2001).
In her PCR petition, defendant argued that her trial counsel was ineffective; that her sentence should have run concurrently and not consecutively; and that her plea was involuntary in that counsel failed to adequately advise her of the penal consequences. Judge Thomas P. Kelly heard argument on the petition and concluded that defendant was informed of the consecutive nature of her sentence and was fully advised of the consequences of pleading guilty. However, at a later date, the court held a testimonial hearing on the claim that counsel was ineffective in not raising the Miranda*fn1 issue on appeal as well as the waiver of jurisdiction from the juvenile to adult court. The court heard testimony from defendant, as well as her counsel, Scott Krasny. Defendant's attorney provided letters sent to her parents who were involved in retaining and paying him, and copies of those letters were sent to defendant. The letters explained the expense involved in pursuing an appeal on the Miranda and waiver issues. At the time, Krasny was still owed money for services he had rendered, although the amount was not mentioned. The attorney told them that if they could not afford this, they could seek representation through the Office of the Public Defender. He also indicated that an appeal could be just taken from the sentence itself.
Judge Kelly found that Krasny was only engaged to handle the sentencing on appeal which would be before a sentencing panel of this court on an SOA calendar. Since Krasny was not hired to proceed with an appeal on the Miranda and waiver issues, the court concluded that he could not be found ineffective in his representation. As Judge Kelly commented in his oral opinion of June 23, 2008, he did not find that counsel committed any unprofessional error. He went on to say:
I'm not saying he did a perfect trial but did he, in fact, agree and was paid to and hired to appeal the confession? I don't find that has been proven at all. Not one scintilla of it. Just the opposite. The agreement was made to appeal the sentence, it's been reduced to writing and he did it.
Yes, he lost, but that doesn't make it an unprofessional error.
On appeal, defendant raises the following issues for our consideration:
BECAUSE PETITIONER WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HER MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT SHE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HER AN EVIDENTIARY HEARING ON THIS ISSUE.
THE SENTENCE FOR THE TWO COUNTS SHOULD BE CONCURRENT NOT CONSECUTIVE.
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL FOR FAILURE OF COUNSEL TO RAISE THE ISSUE OF WAIVER.
THE DEFENDNAT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL FOR FAILURE OF COUNSEL TO RAISE THE DENIAL OF THE DEFENDANT'S MOTION TO SUPPRESS HER WRITTEN STATEMENT (MIRANDA ISSUE).
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HER PETITION FOR POST-CONVICTION RELIEF.
THE MATTER MUST BE REMANDED TO RECONSTRUCT THE RECORD OF THE WAIVER HEARING.
For a defendant to succeed on a claim of ineffective assistance of counsel, it must be demonstrated that there was a reasonable likelihood of success under the tests set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 514 (1984), and adopted in this state in State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on an ineffective assistance of counsel claim, defendant must show (1) that counsel's representation fell below the objective standard of reasonableness, and (2) 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 688-694, 104 S.Ct. at 2064-68, 80 L.Ed. 2d at 693-98. The Strickland test is also utilized for ineffective assistance of appellate counsel claims. State v. Morrison, 215 N.J. Super. 540 (App. Div.), certif. denied, 107 N.J. 642 (1987).
Here, the alleged ineffectiveness as urged in Points I, III and IV is the failure to pursue an appeal on the Miranda and waiver of jurisdiction issues. However, the threshold that must be carried in order to assert an ineffectiveness claim is that counsel was engaged to pursue the appeal on these issues. That threshold has not been satisfied. It is clear, as Judge Kelly found, that Krasny was only retained to pursue an appeal from the sentence that was rendered in accordance with the plea agreement. Krasny did appeal the sentence as he agreed to do. Even when he was unsuccessful before this court, he sought further relief by way of a certification petition in our Supreme Court. He discharged his responsibility, even though he apparently was not paid for these additional services. There is nothing to suggest that Krasny was ineffective with respect to his presentation in pursuit of the sentencing appeal. Thus, we do not even reach the issue of the first prong of the Strickland test when Krasny was not engaged to pursue the appeal of the Miranda or waiver issues.
With regard to Point II, defendant contends that her sentence should have been concurrent, not consecutive. The issue of defendant's sentence has already been adjudicated by this court. Defendant is therefore precluded from raising this ground because it has already been determined. R. 3:22-5.
In Point V, defendant contends that the attorney representing her on the PCR petition was ineffective for not obtaining the transcript of the Miranda hearing from June 2, 1999. Since the ineffective assistance of counsel claim was directed at the trial attorney at the PCR hearing, there would be no reason to order the transcript when the issue of whether the attorney was ineffective had yet to be resolved. Given the resolution of that issue against defendant, it would not be incumbent on the PCR attorney to have ordered the June 2, 1999 transcript. We discern no ineffectiveness in not ordering the transcript.
The argument in Point VI of defendant's brief is that the transcript of the waiver hearings were destroyed after five years and that the matter should be remanded to reconstruct the record as to those proceedings pursuant to Rule 2:5-5. Defendant also requests that we consider this as a motion in lieu of the filing of an actual motion. We discern no basis to remand the matter to reconstruct the record on what has been presented to us. Even treating defendant's application as a motion, we deny it without prejudice should defendant seek further relief in the trial court.
The order denying the PCR petition is affirmed.