On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-08-1005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
Defendant Andrew Mantilla appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons expressed by Judge Ralph L. DeLuccia, Jr. in his oral opinion.
Defendant was convicted by a jury of third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). Judge Deluccia, who was also the trial judge, sentenced defendant to a five-year term of imprisonment on the burglary conviction, and a concurrent eighteen-month term on the resisting arrest conviction. Defendant did not file a direct appeal.
Defendant filed a pro-se petition for PCR that was supplemented by appointed counsel's brief. Defendant alleged that trial counsel provided ineffective assistance.*fn1 In this regard, defendant contended that trial counsel told the jury, in his opening and again in summation, that it should find defendant guilty of the resisting arrest charge. Our review of the record supports the conclusion that trial counsel did indeed urge that the jury find defendant guilty of that charge, but vigorously argued that defendant was not guilty of the more serious burglary count.
A brief review of the evidence at trial reveals why counsel adopted this tack. Defendant and another were drinking an alcoholic beverage in a public park in Paterson. Paterson police officer Mahood Rabboh approached the two men in his police vehicle. Rabboh was in full uniform and asked the men to approach the car, intending to issue a summons. Defendant fled.
Rabboh drove around the block and saw defendant scaling a high fence topped with barbed wire. Rabooh ordered defendant down off the fence. Defendant refused the command, successfully scaled the fence and continued to flee. Rabboh drove to the other side of the fence, again established visual contact with defendant, and saw him running toward a house. Defendant passed through a gate and into the backyard of the property. Rabboh followed on foot and checked a shed in the back of the property, but defendant was not there. Rabboh then knocked on the door of the home, and Melvin Lopez answered.
Lopez and his mother were having dinner when defendant entered the apartment. They had never seen him before. Defendant locked the door behind him and eventually ran into a bedroom. When officer Rabboh arrived at his door, Lopez let him in the apartment and showed him to the bedroom where defendant was arrested.
Defendant did not testify and produced no witnesses. On this evidence, the jury convicted him of both counts of the indictment.
We apply well-known standards to our review of defendant's claim of ineffective assistance of counsel. A defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
We have noted that "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different.'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." State v. ...