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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...