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State v. Cordero

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MISAEL CORDERO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-12-3513.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2010

Before Judges Fuentes and Gilroy.

Defendant Misael Cordero appeals from the August 26, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count one); murder, N.J.S.A. 2C:11-3a (count two); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); felony murder, N.J.S.A. 2C:11-3a(3) (count four); first-degree robbery, N.J.S.A. 2C:15-1 (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven). On July 31, 2002, the court merged the convictions on counts one, four, and seven with the conviction on count two, and merged the conviction on count three with the conviction on count five. Then the court dismissed the convictions on counts five and six based on the statute of limitations, leaving only the conviction on count two for sentencing. On count two, the court sentenced defendant to a life term of imprisonment with a thirty-year period of parole ineligibility, to run concurrent with a sentence defendant was then serving. The court also awarded defendant 3,247 days of gap-time credit pursuant to N.J.S.A. 2C:44-5b(2). Because the trial facts were discussed at length in our prior opinion, State v. Cordero, No. A-5849-02 (App. Div. August 15, 2006), it is unnecessary for us to detail the evidence against defendant for these crimes.

On direct appeal, we affirmed the judgment of conviction and the sentence imposed. Id. (slip op. at 33). However, we granted defendant leave to file a motion for re-sentencing. Id. (slip op. at 25-26). On December 8, 2006, the Supreme Court denied defendant's petition for certification. 189 N.J. 103 (2006). On March 19, 2007, the trial court denied defendant's motion seeking reconsideration of his sentence.

On May 3, 2007, defendant filed a pro se petition for PCR arguing that he was denied ineffective assistance of trial counsel and appellate counsel. Defendant contended that his trial attorney failed to: timely meet with him pre-trial to prepare a proper defense to the indictment; review pre-trial discovery with him; discuss trial procedure and present him with a coherent defense plan; investigate all possible defenses; investigate potential witnesses who may have been able to provide favorable testimony to him; obtain "helpful information/records" for use in his defense; object to co-defendants Javier Santiago's and Francisco Ruiz's trial testimony; and request jury instructions concerning the jury's consideration of the co-defendants' guilty pleas. Defendant contended that his appellate counsel failed to raise the aforementioned issues on appeal. In December 2007, assigned counsel filed a supplemental brief in support of defendant's petition reasserting the arguments raised by defendant. In October 2007, and January 2008, defendant filed two pro se supplemental briefs in support of his petition expounding upon his prior arguments.

On May 2, and June 27, 2008, the trial court conducted an evidentiary hearing on the petition. On August 26, 2008, Judge Goldman entered an order supported by a twenty-one page written opinion denying the petition.

On appeal, defendant argues:

POINT I. THE COURT ERRED IN DENYING PCR BECAUSE TRIAL COUNSEL'S FAILURE TO ADEQUATELY PREPARE FOR TRIAL, PURSUE POTENTIAL DEFENSES, AND INVESTIGATE POSSIBLE WITNESSES DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II. THE ORDER DENYING PCR MUST BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO INADMISSIBLE EVIDENCE AND TO REQUEST A CRITICAL JURY INSTRUCTION DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III. APPELLATE COUNSEL'S FAILURE TO RAISE VIABLE ISSUES ON APPEAL DEPRIVED DEFENDANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.

POINT V. DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

In a supplemental brief, defendant argues:

POINT I. SUPPLEMENTAL TO COUNSEL'S ARGUMENT RAISED IN POINT ONE OF HER BRIEF.

POINT II. SUPPLEMENTAL TO COUNSEL'S ARGUMENT RAISED IN POINT TWO OF HER BRIEF.

POINT III. APPELLANT CORDERO WILL RAISE PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE OBVIOUS ERRORS OF TRIAL COUNSEL SUBMITTED UNDER THE FOLLOWING SUB-POINTS IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS UNDER BOTH STATE AND FEDERAL CONSTITUTIONAL PROVISIONS WHEREAS POST CONVICTION RELIEF SHOULD HAVE BEEN GRANTED IN THIS MATTER.

A. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL FOR FAILING TO RAISE DURING PCR THAT TRIAL COUNSEL'S LACK OF PREPARATION AND INVESTIGATION DISADVANTAGE[D] THE PETITIONER-APPELLANT DURING PLEA BARGAIN PROCESS.

B. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL FOR FAILING TO RAISE DURING PCR THAT TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HIS ERRORS ALLOWED THE STATE TO USE FALSE EVIDENCE TO CONVICT THE DEFENDANT IN VIOLATION OF THE SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND THE FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS.

C. [PCR] COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBMIT THAT TRIAL COUNSEL FAILED TO OBJECT WHEN THE COURT IMPROPERLY CHARGE[D] THE JURY WITH THE LAW OF FIRST DEGREE ROBBERY.

POINT IV. APPELLANT SUBMIT[S] THAT BASED UPON THE CUMULATIVE ERRORS OF [PCR] COUNSEL'S PERFORMANCE BY WAY OF NOT CHALLENGING TRIAL COUNSEL'S ADMITTED INCOMPETENENCE APPELLANT'S CONVICTION SHOULD BE REVERSED AND/OR RELIEF GRANTED AS DEEMED APPROPRIATE BY THE REVIEWING COURT.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn1 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered the arguments raised by defense counsel in Points I, II, and III of her brief and by defendant pro se in Points I and II of his supplemental brief in light of the record and applicable law. We are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). On those issues, we affirm substantially for the reasons expressed by Judge Goldman in his thoughtful written decision of August 26, 2008.

Defense counsel and defendant pro se also argue that he was denied effective assistance of PCR counsel. Not so.

We have considered defense counsel's and defendant pro se's arguments and are satisfied that they are without merit. PCR counsel's performance was competent and not prejudicial within the meaning of Strickland, supra, and Fritz, supra. Rule 3:22-6 entitles an indigent defendant to effective assistance of counsel on a first PCR petition. Once counsel has been assigned, counsel is to serve the client's interest fully and faithfully. State v. Velez, 329 N.J. Super. 128, 132 (App. Div. 2000). The Supreme Court delineated the obligations of PCR counsel as follows:

Reduced to its essence, [State v. Rue, 175 N.J. 1 (2002)] provides that PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. That procedure, which will serve to preserve defendant's contentions for federal exhaustion purposes, is all that is required. [State v. Webster 187 N.J. 254, 257 (2006).]

Here, defendant contends that PCR counsel failed to raise specific deficiencies of trial counsel, depriving him of the right to have the PCR court consider those alleged trial deficiencies as grounds for ineffective assistance of trial counsel. Contrary to defendant's contention, the grounds asserted were addressed by the PCR court and rejected. PCR counsel's lack of effectiveness arose from the lack of merit in defendant's claims, not from counsel's failure to properly prosecute the petition. Indeed, a review of the record indicates that PCR counsel fulfilled his obligation to defendant as defined by the Court in Rue, supra. During the two-day evidentiary hearing, PCR counsel called trial counsel, defense witness Jesus Rodriguez, and defendant to testify in support of defendant's petition. PCR counsel also advanced all pro se arguments raised by defendant. Finally, following the close of the evidentiary hearing, PCR counsel submitted a written closing argument.

Affirmed.


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