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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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