July 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 4, 2011
Before Judges Sabatino and Alvarez.
Defendant, Hector Serrano, who was convicted of aggravated assault and other offenses after a jury trial, appeals the trial court's denial of his petition for post-conviction relief ("PCR"). The thrust of defendant's PCR appeal is that he was deprived of the effective assistance of counsel because no direct appeal was filed on his behalf from his conviction and sentence. For the reasons that follow, we affirm the denial of defendant's petition.
I. The State's proofs at defendant's three-day trial adduced the following pertinent facts. In essence, the evidence showed that defendant shot and wounded two individuals on November 18, 2004, during a street altercation in Newark involving two of his relatives and several other persons.
The street altercation emanated from an ongoing dispute between defendant's niece, Jocibel Rodriguez, and her former roommate, Justina Martinez.*fn1 On the day of the shooting, Rodriguez planned to pick up her belongings from Martinez's residence. Having heard of Rodriguez's plans, defendant drove a blue Oldsmobile to Martinez's home in Newark. The Oldsmobile was owned by Iris Escalara,*fn2 another of defendant's nieces. Escalara testified that she had sent defendant with her car to help Rodriguez gather her belongings. Two other family members, Angel Rivera*fn3 and Vanessa Roman, rode in the Oldsmobile with defendant. Defendant was carrying a handgun with him.
Defendant arrived at Martinez's residence after Rodriguez had already been transported there in a vehicle driven by her cousin, Noel Fraguada. Fraguada's girlfriend, Maria Santos, was also in his vehicle. Santos was two months pregnant at the time.
An argument at the residence began before defendant's contingent arrived there. By the time that defendant arrived, the argument had escalated into a fight. According to Rodriguez, when she got to the residence to retrieve her belongings, she encountered five young women who were waiting there for her. At least two of Martinez's friends, Iesha Nieves and Vanessa Valenciano, took part in Martinez's side of the altercation.
Rivera got out of the Oldsmobile, which defendant then parked. Martinez began to chase Rivera with a baseball bat. Rivera had been involved in a previous altercation with Martinez, in which Martinez and her friends had allegedly "jumped" Rivera.
During the course of the altercation, defendant was seen firing
several shots. Two people were struck by the gunfire. The first was
Santos, who was hit in the abdomen. Santos was hospitalized for seven
days and underwent surgery. Fortunately, the fetus she was carrying
survived the shooting. The second victim was Efron Rosa,*fn4
who was not involved in the altercation, but had been passing
by on a bicycle. Rosa was shot in the mouth. He spent seventeen days
in the hospital and, although he survived the shooting, he sustained
After the shots were fired, defendant and Rivera left the scene in the Oldsmobile. A bystander, Jose Ponce, telephoned the police. Ponce reported that he saw "a guy fire two shots into a crowd," and then get into a vehicle and leave the scene. Ponce, who had followed the shooter, told the police that he had seen the Oldsmobile pull into the parking lot of a funeral home not far from the shooting scene.
Following the lead provided by Ponce, police officers went to the funeral home, where they observed defendant and Rivera in the back parking lot. They saw defendant, once he noticed them, toss a handgun over a retaining wall. The police then took defendant and Rivera into custody. They thereafter located the handgun where it had been tossed.
A grand jury subsequently indicted defendant, charging him with conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b (count one); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts two and three); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (count six).
Prior to trial, defendant was apparently offered a plea bargain by the State,*fn5 in which he would plead guilty to aggravated assault in exchange for the State recommending a five-year sentence with an eighty-five percent parole disqualifier. Evidently, no guilty plea was ever presented because defendant maintained his innocence and he was unwilling to provide the requisite factual basis for a plea to be accepted.
The jury trial took place in June 2006. During the course of the trial, the State presented three eyewitness, including Santos, who positively identified defendant as the shooter. The passerby who followed defendant to the funeral home, Ponce, testified that he saw defendant flee the scene in a blue Oldsmobile and park behind the funeral home several blocks away. The arresting officer testified that he and his partner found defendant with a gun, observed him attempt to discard it, and that they then retrieved the weapon.
In defendant's own case, he presented testimony from Rodriguez and Roman, both of whom asserted that they did not know the identity of the shooter. Roman stated that she did not believe defendant ever got out of the Oldsmobile at the shooting scene. Roman further testified that she had perceived that the shooting was "coming from different directions." Defendant also presented brief testimony from Escalara, the owner of the Oldsmobile.
The jury found defendant guilty on counts two through six, and not guilty on count one. At the ensuing sentencing, the trial judge imposed an aggregate custodial term of seventeen-and-one-half years, subject to an eight-five percent parole ineligibility period under the No Early Release Act, ("NERA"), N.J.S.A. 2C:43-7.2. In particular, defendant received a nine-and-one-half-year custodial term for the aggravated assault on Santos (count two), and a consecutive eight-year custodial term for the aggravated assault on Rosa (count three). The court also imposed respective concurrent terms of four years and three months on the third-degree firearms offense (count four), nine-and-one-half years on the second-degree firearms offense (count five), and sixteen months on the obstruction offense (count six).
At the end of the sentencing hearing on December 7, 2006, the trial judge explicitly informed defendant on the record, in accordance with Rule 3:21-4(h), of his right to file an appeal, and that such an appeal must be filed within forty-five days. The judge further advised defendant that if he could not afford an attorney to file such an appeal, one would be assigned to represent him upon application to the court. Defendant responded to the judge, on the record, that he understood this.
Despite the information provided to defendant at the time of his sentencing, no appeal was filed on his behalf. The time to file such a direct appeal consequently expired on January 21, 2007. No motion was made to extend the time to file an appeal under Rule 2:4-4 (allowing an extension of up to thirty days upon a showing of good cause and the absence of prejudice).
Nine months later, an October 17, 2007, defendant filed a pro se PCR petition in the Law Division. In his petition, which was thereafter amplified in a supplemental brief by PCR counsel, defendant claimed that he was deprived of the effective assistance of counsel in various respects. In particular, defendant claimed that his trial counsel conducted an inadequate investigation, failed to interview and call a certain witness, and failed to present a theory of self-defense. Defendant also claimed that his sentence was unconstitutional, and that the record did not support the eighty-five percent parole disqualifier under NERA.*fn6
In his supplemental brief, defendant's PCR attorney further argued that defendant had been deprived of the effective assistance of counsel because no direct appeal had been filed on his behalf. The supplemental brief asserted that defendant's sentence was excessive and unduly punitive.
After hearing oral argument, Judge Martin Cronin, who had previously presided over defendant's trial, dismissed the PCR petition as unmeritorious. The judge rejected all of defendant's claims of ineffectiveness, including both those asserted in his pro se petition as well as those advanced by his PCR attorney. In particular, the judge rejected defendant's claim that his trial counsel was deficient in failing to present a witness, as that supposed witness had in fact testified for defendant at trial.*fn7 The judge also found defendant's sentence appropriate, both as to the parole ineligibility periods imposed under the amended revision of the NERA statute, and as to the consecutive treatment of the aggravated assault convictions pertaining to each of the two shooting victims. The judge treated the absence of a direct appeal on defendant's behalf as inconsequential. Given the manifest lack of merit to defendant's claims, the judge found no need to conduct an evidentiary hearing on the PCR application.
On this appeal, defendant raises the following points for our consideration:
THE PCR COURT COMMITTED PLAIN ERROR BY FAILING TO APPLY THE STANDARD IN ROE V. FLORES-ORTEGA TO DETERMINE WHETHER DEFENDANT'S TRIAL COUNSEL VIOLATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A NOTICE OF APPEAL OF DEFENDANT'S CONVICTION AND SENTENCE AND, THEREFORE, THE ORDER DENYING PCR MUST BE VACATED AND REMANDED FOR A HEARING CONSISTENT WITH ROE. (Not raised below).
IF THE COURT DETERMINES THAT ROE IS INAPPLICABLE, DEFENDANT ARGUES, ALTERNATIVELY, THAT THE PCR COURT ERRED BY FINDING THAT TRIAL COUNSEL'S FAILURE TO FILE AN APPEAL DID NOT VIOLATE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
IF THE COURT DETERMINES THAT ROE IS INAPPLICABLE, DEFENDANT ARGUES, ALTERNATIVELY, THAT THE PCR COURT ABUSED ITS DISCRETION IN FINDING THAT DEFENDANT'S SENTENCE IS NOT MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. The PCR Court Erred by Finding That R. 3:22-4 Bars the Defendant's Argument That His Sentence is Manifestly Excessive and Unduly Punitive.
B. The Trial Court Abused its Discretion by Sentencing the Defendant to Consecutive Sentences and, Therefore, Rendered Defendant's Sentence Manifestly Excessive and Unduly Punitive.
ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.
We find no merit in these arguments, and no need to remand the PCR application for an evidentiary hearing.
II. Pursuant to 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, in retrospect, a deprivation of that right, a convicted 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).
When reviewing such claims of ineffectiveness, 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. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castaqna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). "As a general rule, strategic miscalculations or trial mistakes 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.'" Castagna, supra, 187 N.J. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
The primary issue before us concerns the application of these general principles of ineffectiveness in a specific context where counsel did not file a direct appeal of defendant's conviction or sentence. The United States Supreme Court specifically addressed that "no-appeal" scenario in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), a seminal decision, which the parties acknowledge governs this case.
In Roe, the defendant pled guilty in the California state court to murder. Id., 528 U.S. at 473, 120 S. Ct. at 1033, 145 L. Ed. 2d at 992. At sentencing, the defendant and his trial counsel were informed that the deadline for filing an appeal was sixty days from that date. Id., 528 U.S. at 474, 120 S. Ct. at 1033, 145 L. Ed. 2d at 993. However, no timely notice of appeal was filed, either by the defendant or by an attorney on his behalf. Ibid. The defendant then filed a habeas corpus petition in federal court, alleging that his former attorney was constitutionally ineffective because he had failed to file an appeal after allegedly promising to do so. Ibid. After the Ninth Circuit Court of Appeals granted the defendant relief, the United States Supreme Court vacated that ruling and remanded for further proceedings to develop the record more. Id., 528 U.S. at 487, 120 S. Ct. at 1040, 145 L. Ed. 2d at 1002. In doing so, the Supreme Court rejected the Circuit Court's approach that, in effect, had deemed it per se deficient for a criminal defense attorney to fail to file a notice of appeal unless the defendant client expressly instructs otherwise. Id., 528 U.S. at 470, 120 S. Ct. at 1035, 145 L. Ed. 2d at 995.
In lieu of a per se approach, the Supreme Court held that, in evaluating whether counsel's performance was deficient in such scenarios where no appeal was filed, a defendant must demonstrate two critical things. First, he must show that his attorney failed to consult him about filing an appeal in a situation where "there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id., 528 U.S. at 480, 120 S. Ct. at 1036, 145 L. Ed. 2d at 997. Second, a defendant must demonstrate that there was "a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id., 528 U.S. at 484, 120 S. Ct. at 1038, 146 L. Ed. 2d at 999. Because the record before it in Roe was inadequate to make these assessments, the Court remanded the case for further proceedings. Id., 528 U.S. at 487, 120 S. Ct. at 1040, 145 L. Ed. 2d at 1001.
Applying the standards of Roe to the present case, the lack of a direct appeal on defendant's behalf does not compel a conclusion that he was deprived of the effective assistance of counsel or that he is entitled to PCR relief. Although there is no indication in the record that an attorney consulted with defendant about taking an appeal, there is also no evidence that defendant ever stated to his counsel that he was interested in pursuing such an appeal. Defendant's PCR petition is bereft of any assertion that he had communicated to his attorney a desire to appeal, or a desire to discuss the likelihood of success of such an appeal.
Given the absence of any affirmative request by defendant to appeal, or to be consulted about a potential appeal, the next consideration under Roe is whether his prior attorney would have reason to think that a rational person in defendant's shoes would have wanted to appeal. Relevant to this assessment is whether there were "non-frivolous grounds for appeal." Id., 528 U.S. at 485, 120 S. Ct. at 1039, 145 L. Ed. 2d at 1000. The presence of such non-frivolous grounds for an appeal is "highly relevant" in determining whether the defendant was prejudiced. Ibid. The Court recognized that it may be difficult for a pro se defendant to articulate such non-frivolous grounds. Id., 528 U.S. at 486, 120 S. Ct. at 1039-40, 145 L. Ed. 2d at 1001. Here, however, defendant had the benefit of representation by counsel in his PCR proceeding. That counsel filed a supplemental brief and advocated for defendant's interests at oral argument. Nevertheless, defendant and his PCR counsel failed to present any non-frivolous grounds for relief. Had a timely appeal been filed, we detect nothing to suggest that it would have been successful.
Judge Cronin's bench opinion aptly explained why each of defendant's substantive arguments have no discernable merit. The criticism of trial counsel for failing to investigate and call a witness is belied by the fact that trial counsel did, in fact, call defendant's niece, Roman, to the witness stand as a defense witness, and defendant's petition identified no other witness that his trial attorney should have interviewed and called to the stand. The contention that a theory of self-defense should have been presented is a bald assertion not supported by any tenable proof. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (noting that "bald assertions" are insufficient to support a PCR application), certif. denied, 162 N.J. 199 (1999). Defendant's parole ineligibility period was appropriate and, in fact, mandatory, under NERA. See N.J.S.A. 2C:43-7.2. The consecutive sentences for aggravated assault pertaining to each of the two shooting victims was justified under State v. Yarbough, 100 N.J. 627, 646 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The sentence was not manifestly excessive, and was well within the court's discretion. See State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing that appellate courts generally should not "second-guess" the sentencing judge's weighing of aggravating and mitigating factors).
In sum, defendant has not made a sufficient showing under Roe to obtain relief, nor to warrant a plenary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (noting that plenary hearings for PCR petitions are not required where the defendant has not made a prima facie showing of a meritorious claim).