August 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AGUSTIN GARCIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-01368.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2011
Before Judges R. B. Coleman and Lihotz.
Defendant Agustin Garcia appeals from the denial of his second petition for post-conviction relief (PCR) without an evidentiary hearing, and the denial of his motion for reconsideration of that order. We affirm.
A lengthy recitation of the underlying events leading to defendant's convictions is not relevant to the issues presented on appeal. We include this brief statement.
Defendant is serving a life sentence with a thirty-year period of parole ineligibility following a lengthy jury trial and his conviction for murdering his former girlfriend, Gladys Ricart, shooting her three times at close range in her home on the day of her intended wedding to another man. The shooting was witnessed by several wedding guests and recorded by the videographer hired by the bride to memorialize the wedding festivities. Defendant testified in his defense, explaining he was attacked by the bride's brothers after he entered the house, there was a struggle, he reached for his gun and blacked out; later learning the bride had been killed. On February 1, 2002, defendant was sentenced to life in prison for the murder, subject to a thirty-year period of parole ineligibility. A consecutive four-year term of imprisonment was imposed for the weapon's offense along with two concurrent four-year terms for endangering the welfare of a child.
On direct appeal, we affirmed defendant's convictions and the sentences imposed for murder and the weapons offenses. State v. Garcia, No. A-3939-01 (App. Div. May 11, 2004). We A-3198-09T3 reversed the endangering convictions. Ibid. Certification was denied. State v. Garcia, 181 N.J. 545 (2004). Defendant sought PCR, alleging ineffective assistance of trial, appellate and PCR counsel, as well as prosecutorial misconduct and jury prejudice. State v. Garcia, No. A-5437-06 (App. Div. Nov. 6, 2009) (slip op. at 1-2), certif. denied, 202 N.J. 348 (2010). We affirmed the trial court's denial of defendant's initial voluminous PCR petition, finding generally defendant's arguments of ineffective assistance were "wholly without merit to warrant further discussion, R. 2:11-3(e)(2); could have been raised on direct appeal, R. 3:22-4; or have previously been adjudicated on direct appeal, R. 3:22-5." Id. slip op. at 14-15.
While appeal of the denial of the first PCR petition was pending, defendant filed this second PCR petition on April 15, 2008, which the court agreed to review, notwithstanding the provisions of Rule 3:22-3 (barring PCR review while appellate review is pending). Judge Harry Carroll denied relief in a written opinion, finding defendant's submission to be "little more than a resubmission of his prior petition." The court rejected defendant's claims of excusable neglect in failing to submit his PCR petition within the limitations period of Rule 3:22-12 (barring review of PCR requests filed more than five years after rendition of the judgment or sentence sought to be attacked). For completeness, Judge Carroll considered the arguments presented, determining no evidentiary hearing was warranted. He stated:
Having reviewed the record within the context of [defendant's] claims, the [c]court finds that they fail to establish that counsel performed deficiently on any level of the proceedings. In fact, the petitioner seems to have been afforded the benefit of experienced trial attorneys who advanced viable and sensible theories in his defense. The petitioner's claims of the ineffective assistance of counsel were not only vague and imprecise, but, having reviewed submissions in the prior proceedings, a reexamination (more accurately a copying and pasting) of claims already decided. The same is true for his claims of prosecutorial misconduct, juror misconduct, and error by the trial court. Simply stated, this petition is little more than a resubmission of his prior petition. A petition for post-conviction relief is not an opportunity to relitigate cases on the merits. R. 3:22-5. A careful review reveals that not only are all of these claims without merit, but they also have already been decided on the merits by the trial court, the Appellate Division on direct appeal, the post-conviction relief court, and the Appellate Division on the appeal of the denial of the post-conviction relief application. . . . Based on the lack of merit of all of the petitioner's claims, this [c]court finds that there is no substantial basis, either factual or legal, that would require the assignment of counsel. Further, this [c]court finds that the petition does not allege on its face issues not raised previously that would require review . . . . Accordingly, the petitioner is not entitled to the assignment of counsel pursuant to R[ule] 3:22-6(b) because he has failed to establish good cause for such an assignment. Defendant appealed that order and the subsequent order denying reconsideration. On appeal, defendant presents these issues for our consideration:
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. POST-CONVICTION COUNSEL,
MICHAEL PAUL, ESQ., FAILED TO ADEQUATELY PREPARE AND EXERCISE NORMAL CUSTOMARY SKILLS IN PREPARATION OF DEFENDANT'S PCR AND FAILED TO INVESTIGATE AND PROPERLY PUT FORTH DEFENDANT'S CLAIMS OF PROSECUTORIAL MISCONDUCT AND PRIOR COUNSELS' INEFFECTIVE ASSISTANCE DUE TO A FRAUDULENTLY ALTER[ED] WEDDING VIDEOTAPE, AND OTHER ISSUES, BUT RATHER MR. PAUL DENIGRATED HIS CLAIMS AND WORKED AGAINST THE DEFENSE.
B. TRIAL COUNSEL W[AS]
INEFFECTIVE FOR NOT CONSULTING OR HIRING AN EXPERT TO EXAMINE THE WEDDING VIDEOTAPE FOR EVIDENCE OF AN ALTERCATION CAPTURED ON THE AUDIO OF THE VIDEOTAPE AND FOR FAILING TO HAVE EXPERT TESTIFY AT TRIAL.
C. TRIAL COUNSEL W[AS]
INEFFECTIVE FOR FAILING TO INTERVIEW WITNESSES AND SECURE THEIR ATTENDANCE AT TRIAL. POINT II
APPELLANT REASSERTS ALL OTHER ISSUES RAISED IN HIS SECOND PRO SE PETITION FOR POST-CONVICTION RELIEF.*fn1
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION DUE TO THE FAILURE ON THE PART OF APPELLATE COUNSEL TO RAISE OBVIOUS ISSUES OF TRIAL ERROR.
SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE BY TRIAL, APPELLATE AND PCR COUNSELS AND OF OTHER ISSUES OF MERIT, THE COURT MUST AFFORD THE DEFENDANT A FULL EVIDENTIARY HEARING.
THE ERRORS BY THE TRIAL COURT, THE STATE AS WELL AS TRIAL, APPELLANT AND PCR COUNSEL'S CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL.
Because more than five years had passed from the entry of the judgment of conviction, review of defendant's contentions is precluded. R. 3:22-12. Further, the claims of ineffective assistance of counsel are those previously raised and rejected, which will not be considered anew. Further review is barred.R. 3:22-5.*fn2
We find no basis to reverse Judge Carroll's denial of relief. Defendant's general suggestion that trial, appellate, and PCR counsel provided prejudicially deficient performance lacks specific factual assertions or corroborating documentation. The broad proposition offered that counsel failed to hire experts to review, and presumably challenge as authentic, videotapes and audiotapes introduced at trial by the State, or otherwise present defense witnesses, lacks merit. R. 2:11-3(e)(2). Further, the bald claim that counsel "denigrat[ed] [d]efendant's issues and effectively rendered aid and support to the state's opposition" is baseless and it, along with the other contentions set forth in defendant's pleadings, were previously raised and addressed on direct appeal and in defendant's first PCR submission. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (stating a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999); State v. Allah, 170 N.J. 269, 283 (2002).
We additionally disagree with defendant's contentions of error in denying him a full evidentiary hearing. While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2011); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). No evidentiary hearing was warranted and the denial of that request was not an abuse of discretion.
We have considered defendant's argument that there is sufficient evidence supporting excusable neglect to warrant a waiver of the time bar imposed by Rule 3:22-12(a) and are not persuaded. Defendant maintains the time spent presenting his direct appeal and first PCR qualifies as excusable neglect.
Were this an acceptable position, the limitation of the rule would be rendered meaningless. Defendant had ample opportunity to present claims of error in these prior proceedings. PCR is not a substitution for claims denied on direct appeal. State v. Echols, 199 N.J. 344, 357 (2009). Affirmed.