February 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT FERRIOLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-03964.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011
Before Judges Fisher and Fasciale.
Defendant, Vincent Ferriole, appeals from a July 31, 2008 order denying his petition for post-conviction relief (PCR). Defendant argues that his trial counsel was ineffective because he failed to (1) subpoena medical records of the victim, and (2) cross-examine the State's witnesses properly. We affirm.
The facts giving rise to defendant's convictions are set forth in our earlier unreported opinion. State v. Ferriole, No. A-2566-05 (App. Div. Jan. 4, 2007). We now summarize the facts for this appeal.
A.A. moved into defendant's home when she was eleven years old and resided with him, his wife, and their two younger daughters. A.A. testified that defendant sexually abused her when she was between the ages of twelve and eighteen. Between ages fifteen and eighteen, defendant forced her to engage in sex nearly every day and would beat her if she failed to comply.
A.A. testified that defendant divorced his wife about seven years later, forced A.A. to move into an apartment with him, and continued to abuse her. A.A. reported the sexual abuse after she turned eighteen years old and underwent an abortion. She also obtained a restraining order against him.
Defendant testified at trial that he and A.A. had no sexual relationship until A.A. turned eighteen years old. He denied responsibility for A.A.'s pregnancy, stated that A.A. began the relationship by walking around the house naked after she showered, and that she fondled him while he was in bed asleep. Defendant indicated that A.A. filed the charges two weeks after he asked her to move out of the apartment, and suggested that she did so because she was jealous of his new relationship with another woman.
At the conclusion of a jury trial, defendant was convicted of various offenses, including first-degree aggravated sexual assault, second-degree endangering the welfare of a child, and several counts of second-degree sexual assault. The judge sentenced defendant to an aggregate fifteen-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, in effect at the time. Ferriole, supra, (slip op. at 7). We remanded for re-sentencing on the aggravated sexual assault conviction because NERA was applied without a determination concerning whether the threat of force was used. Id. at 19-25. The Supreme Court denied defendant's petition for certification. State v. Ferriole, 190 N.J. 255 (2007). Defendant was then re-sentenced to fifteen years on the aggravated sexual assault conviction.
Following the re-sentence, defendant filed a PCR petition. Defendant argued that trial counsel was ineffective because he failed to (1) subpoena exculpatory evidence; (2) investigate potential witnesses; (3) cross-examine State's witnesses properly; (4) communicate with him; and (5) defend him aggressively. In a lengthy written decision dated July 31, 2008, the PCR judge denied the petition without conducting an evidentiary hearing. The judge explained that defendant failed to establish a prima facie case of ineffective assistance of trial counsel.
On appeal, defendant raises the following points:
THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED FERRIOLE OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE
A. Ferriole Was Deprived of His Constitutional Right to Effective Assistance of Counsel Under the United States Constitution and the New Jersey Constitution
B. Trial Counsel Failed to Raise and Argue Ferriole's Defense Concerning the Fact that A.A.'s Medical Records Would Demonstrate that A.A. Did Not Engage in Sexual Relations with Ferriole When She Was Underage
C. Trial Counsel Failed to Represent Ferriole Effectively POINT II
THE PCR COURT ERRED IN NOT RULING THAT TRIAL COUNSEL'S ERRORS, CONSIDERED CUMULATIVELY, AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND THAT FERRIOLE WAS PREJUDICED BY THOSE ERRORS AND ENTITLED TO PCR RELIEF AS A MATTER OF LAW POINT III
THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY FERRIOLE
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). Whether "retained or appointed," counsel must "ensure that the trial is fair;" therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, ¶ 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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 precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:
If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted. [Ibid. (citations omitted).]
We begin by rejecting defendant's argument that his trial counsel was ineffective because he failed to subpoena potential exculpatory medical records of A.A. Defendant implies that A.A.'s medical records as a juvenile would demonstrate that he had no sexual relations with her. We disagree.
Defendant admits, in his supplemental brief before the PCR judge, that his ex-wife gave trial counsel medical records of A.A. His ex-wife testified that she had A.A. examined annually by a doctor in an office where she worked as a medical assistant. The PCR judge stated that "[the ex-wife] testified that nothing in the victim's medical records suggested that A.A. was being abused." Trial counsel used the testimony from the ex-wife and argued in summation that "we know . . . that [A.A.] had seen a doctor every year. We know that there were no reports of any type of sexual abuse." We agree with the PCR judge that "[the State] conceded at trial that A.A. did not report the sexual assaults until she was eighteen, and the absence of any corroborative medical evidence was readily before the jury." Thus, even if we were to conclude that trial counsel was deficient for not subpoenaing the medical records -- a position which we reject -- defendant failed to establish prong two of Strickland.*fn1
Next, defendant argues that his trial counsel failed to cross-examine the State's witnesses properly. Defendant contends that his brother had sexual relations with A.A. and that his trial counsel was ineffective because he failed to conduct cross-examination on that subject.
We measure trial counsel's efforts by a standard of reasonable competence. Fritz, supra, 105 N.J. at 58. A strong presumption exists that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693-94; Fritz, supra, 105 N.J. at 52. In our review, we must "evaluate the conduct from the attorney's perspective at the time of trial, being careful to eliminate the distorting effects of hindsight." State v. Buonadonna, 122 N.J. 22, 42 (1991). Counsel is not considered ineffective simply because trial strategy failed. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001). Strategic miscalculations or trial mistakes by counsel are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial. State v. Thomas, 245 N.J. Super. 428, 432 (App. Div. 1991), appeal dismissed, 130 N.J. 588 (1992). As the PCR judge stated:
Evidence of a sexual relationship between [defendant's] brother and A.A., as the State posits, would have likely been inadmissible pursuant to N.J.S.A. 2C:14-7(c). Further, such evidence does not exculpate [defendant] because he still could have been found guilty based on his own actions, separate from his brother's actions.
We are convinced that defendant failed to show either that trial counsel's performance was deficient or that the representation prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
We have carefully reviewed the record and the arguments presented by counsel and conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).