January 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDUARDO TAPIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2491.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011
Before Judges Payne and Hayden.
Defendant Eduardo Tapia appeals the March 11, 2010 order denying his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that on May 12, 2003, a jury convicted defendant of second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-5d. The indictment was based on an incident where defendant, along with four family members, had lured the victim to a parking lot, then forcibly taken him to another location and beaten him severely for having an affair with defendant's girlfriend.
On June 18, 2003, the trial judge sentenced defendant to a
sixteen-year prison term with an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act ("NERA")*fn1
with a five-year period of parole supervision and a
concurrent eight-month prison term for the prohibited weapon charge.
Defendant appealed the conviction and sentence, arguing that: 1) he
received ineffective assistance of counsel because his attorney failed
to investigate the victim and prepare for trial; 2) the evidence was
not sufficient to warrant a conviction; 3) the sentence was excessive
and the application of the NERA was erroneous. We rejected these
affirmed the conviction. State v. Tapia, No. A-2911-03 (App. Div. June
9, 2003). On October 7, 2005, our Supreme Court denied defendant's
petition for certification. State v. Tapia, 185 N.J. 295 (2005).
On January 6, 2006, defendant filed his first petition for PCR, arguing, among other contentions, that he received ineffective assistance of counsel because his trial attorney had failed to object to improper jury charges and prosecutor's comments. The PCR judge entered an order on January 26, 2007, denying the petition without an evidentiary hearing, and defendant appealed. His appellate counsel argued that defendant had received ineffective assistance of counsel because his attorney failed to object to numerous instances of prosecutorial misconduct.
Defendant also filed a pro se supplemental appellate brief, arguing:
POINT I: APPELLANT MOVES BEFORE THIS HONORABLE COURT FOR A LIMITED REMAND BACK TO THE TRIAL COURT FOR FAILURE TO MAKE FINDINGS AS TO THE VOLUNTARINESS OF THE TAPIA BROTHERS STATEMENTS WHEN IT WAS SHOWN, INFRA, THAT THE STATEMENTS WERE PREPARED BY AN UNCERTIFIED, INCOMPETENT INTERPRETER; AND DEFENSE ATTORNEYS NEVER SO MUCH AS PROBED THAT AREA, WHICH IS BLATANT INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING REVERSAL OF THE CONVICTIONS AND DISMISSAL OF ALL CHARGES.
POINT II: THE APPELLANT, EDUARDO TAPIA, WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHICH RESULTED IN HIS CONVICTION AND SEVERE SENTENCE WHEN TRIAL COUNSEL FAILED TO CALL ANY WITNESSES, FAILED TO CHALLENGE THE ORAL AND WRITTEN STATEMENTS BY PETITIONER, ALL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE STATE AND FEDERAL CONSTITUTIONS, REQUIRING THE REVERSAL OF THE CONVICTION AND AN ORDER GRANTING DEFENDANT A NEW TRIAL.
On January 20, 2009, we affirmed the order denying the PCR petition. However, we declined to address the arguments raised in defendant's supplemental brief as they had not been presented to the PCR court. On May 8, 2009, our Supreme Court denied defendant's petition for certification. State v. Tapia, 199 N.J. 516 (2009). On June 15, 2009 defendant filed a second petition for PCR, claiming that he had received ineffective assistance of counsel because: 1) trial counsel failed to request a Miranda*fn2 hearing; 2) trial counsel failed to investigate and call witnesses on defendant's behalf; and 3) trial and appellate counsel failed to object to the jury instructions on first-degree kidnapping and second-degree conspiracy to commit kidnapping.
On March 11, 2010, Judge Ira E. Kreizman denied defendant's second PCR petition without an evidentiary hearing. Judge Kreizman found that the petition was time-barred pursuant to R. 3:22-12, because it was not filed within five years of the rendition of judgment or sentence sought to be attacked, and defendant did not show excusable neglect. The judge found that the claims were also procedurally barred by Rule 3:22-4 and Rule 3:22-5. First, defendant had not raised the jury charge issue or voluntariness of the statement on direct appeal, and PCR proceedings are not a substitute for such an appeal. Second, the allegations of ineffective assistance of counsel were not newly discovered and should have been made in the first post-conviction application.
Despite finding the petition procedurally barred, Judge Kreizman addressed the merits of defendant's contentions and found that defendant failed to establish a prima facie case of ineffective assistance of counsel. First, the judge noted that the record showed several discussions during the trial on the issue of a Miranda hearing. The trial judge and defense counsel had agreed to hold a hearing on whether defendant's statement was involuntary or made without Miranda warnings only if defendant chose to testify. When defendant waived his right to testify, there was no need to hold such a hearing as the State would not be offering the statement into evidence. Further, the judge held that defendant's claim that the statement was defective because the interpreter had not been court certified was a "non-issue" as the statement did not go into evidence. Lastly, the judge carefully considered defendant's arguments that the jury charges were not fair and balanced and found that the jury charge, which had followed the Model Jury charge, was appropriate. In sum, the judge found that defendant had failed to show that his counsel's representation was deficient or that the result would have been different. This appeal followed.
On appeal, defendant raises the following contentions:
POINT ONE: DEFENDANT/APPELLANT MOVES BEFORE THIS HONORABLE COURT FOR THE LOWER COURT'S FAILURE TO MAKE LEGAL CONCLUSIVE FINDINGS AS TO THE VOLUNTARINESS OF THE TAPIA BROTHERS INCRIMINATING STATEMENTS WHEN IT WAS SHOWN, INFRA, THAT THE STATEMENTS WERE PREPARED BY AN UNCERTIFIED, INCOMPETENT INTERPRETER CONTRARY TO THE LAW, WHO WAS ACTUALLY A "POLICE DISPATCHER" WHICH MAKES THE STATEMENTS AND MIRANDA WARNINGS UNCONSTITUTIONAL IN VIOLATION OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO BOTH THE STATE AND FEDERAL CONSTITUTIONS; WHEN DEFENSE ATTORNEYS NEVER SO MUCH AS PROBED THAT AREA, WHICH IS BLATANT INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING REVERSAL OF THE CONVICTIONS AND DISMISSAL OF ALL CHARGES POINT TWO: THE APPELLANT, EDUARDO TAPIA, WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHICH RESULTED IN HIS CONVICTION AND SEVERE SENTENCE WHEN TRIAL COUNSEL FAILED TO CALL ANY WITNESSES, FAILED TO CHALLENGE THE ORAL AND WRITTEN STATEMENTS BY APPELLANT; FAILED TO CHALLENGE THE Q[U]ALIFICATIONS AND CERTIFICATION OF THE STATE'S "POLICE DISPATCHER" MAKE-SHIFT INTERPRETER, WHO WAS NOT QUALIFIED NOR CERTIFIED, TO INTERPRET SPANISH/ENGLISH AS A MATTER OF LAW, ALL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE STATE AND FEDERAL CONSTITUTIONS REQUIRING THE REVERSAL OF THE CONVICTION AND AN ORDER GRANTING APPELLANT A NEW TRIAL
Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Without such a showing, no evidentiary hearing is required. See State v. Cummings, 321 N.J. Super. 154, 169 (App. Div.), certif. denied, 162 N.J. 199 (1999).
To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. For example, Rule 3:22-12(a) imposes a five-year limitation on filing a petition after the judgment sought to be attacked. Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rule must be viewed in light of its dual purpose to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5.
We have carefully considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Kreizman in his March 11, 2010 opinion.
We are satisfied that defendant's PCR petition, filed six years after the judgment of conviction without any claim of excusable neglect, is clearly time-barred. R. 3:22-12. We also agree that the present claims are barred by Rule 3:22-5 as they could have been raised either on direct appeal or in defendant's previous PCR petition.
Moreover, in order to obtain relief on an ineffective assistance of counsel claim, a defendant must show both that his counsel's performance was deficient and that counsel's performance prejudiced his defense. State v. Fritz, 105 N.J. 42, 58 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). We are in accord with Judge Kreizman that defendant offered nothing more than bald assertions of ineffective assistance. See State v. Cummings, supra, 321 N.J. Super. at 170. Affirmed.