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State v. Wills

July 6, 2010


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-04-0740.

Per curiam.


Submitted May 19, 2010

Before Judges Graves and Sabatino.

Defendant Francisco Wills, a Colombian national, entered into a negotiated plea in 2004 before Judge James Citta to first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The charges arose out of defendant's July 29, 2003 attack upon a woman that he had met at a restaurant where he worked.

During his plea hearing, defendant admitted that he had gained entry to the victim's house through a window at approximately 1:00 a.m. He then accosted the victim and held a knife to her throat while he raped her several times. After the sexual assault, defendant stabbed the victim in the stomach with the purpose to kill her, so she could not testify against him. Defendant then fled the scene, but the victim survived.

The negotiated plea was for an aggregate exposure of twenty-seven years (fifteen years for the attempted murder and a consecutive twelve-year term for the aggravated sexual assault), with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2a. Judge Citta imposed sentence consistent with the plea agreement. The sentence was sustained on direct appeal by this court on the excessive sentencing calendar in 2006.

Defendant then filed the present application for post-conviction relief ("PCR") in the Law Division. He raised two issues. First, he contends that his trial attorney was ineffective in failing to investigate a potential intoxication defense. Defendant contends that he had been seen drinking large amounts of wine at work and had lost his senses when he attacked the victim. He argues that if an intoxication defense had been sufficiently pursued, he either would have gone to trial or would have been able to negotiate a more favorable plea.

Second, defendant contends that he was deprived of his rights under Article 36 of the Vienna Convention on Consular Relations ("Vienna Convention") because the State and defense counsel did not arrange for him to be in contact with the Colombian Consulate while his criminal charges were pending.

After hearing oral argument, Judge James Den Uyl denied PCR relief without requiring an evidentiary hearing.

In his oral ruling, Judge Den Uyl noted that defendant had no problem recalling the events of the attack during the plea hearing. Additionally, there was "no evidence that [defendant] exhibited signs of unconsciousness before, during[,] or after the attack." Defendant also drove successfully both to and from the victim's house without incident, he was able to cut a window screen in entering the victim's house undetected, and he was able to maintain an erection for the duration of the sexual assault. Defendant also was able to fight back when the victim struggled. The judge noted that these are all facts inconsistent with defendant's claim that he had an extremely high level of intoxication, and that his trial attorney was not ineffective in eschewing an intoxication defense.

With respect to the Vienna Convention, Judge Den Uyl likewise found the defendant's claims to be without merit, because defendant admitted to the wrongdoing at the plea hearing and there is no showing of prejudice by the alleged failure to comply with the Vienna Convention. Further, the judge found no facts to substantiate defendant's claim that his rights under the Vienna Convention were ever violated in the first place.

The applicable legal standards are familiar and clearly defined. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense 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; see also State v. Perry, 124 N.J. 128, 153 (1991).

Having reviewed the record as a whole, the applicable law, and the points raised in the brief of defendant's present counsel and in his pro se appellate brief, we are satisfied that the trial court's denial of PCR relief was correct, substantially for the cogent ...

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