February 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN PAULINO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-11-1630.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 8, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant Juan Paulino appeals from the May 10, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. He had unsuccessfully argued that trial counsel was ineffective in failing to sufficiently meet with him to prepare a defense and failing to retain a forensic expert in the area of child sexual abuse to counter the State's expert. We affirm.
Defendant was convicted by a jury of two counts of first-degree aggravated sexual assault by penetration of a child under the age of thirteen, N.J.S.A. 2C:14-2a(1) (counts one and three), and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two and four). Judgment of acquittal on counts five and six, first-degree aggravated sexual assault and third-degree endangering the welfare of a child, was entered at the close of the State's case. After merging the convictions, the judge imposed sentences on counts one and three of concurrent eighteen-year terms of imprisonment subject to parole ineligibility and parole supervision terms required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also subject to Megan's Law, requiring registration as a sex offender, and imposition of parole supervision for life.
Defendant filed a direct appeal. We affirmed defendant's conviction and sentence, although we remanded for correction of the judgment of conviction. State v. Paulino, No. A-4755-06 (App. Div. August 31, 2009). This PCR petition ensued and oral argument was conducted by Judge Joseph V. Isabella on May 3, 2010. On May 10, 2010, Judge Isabella issued a written opinion and order denying defendant's PCR.
In a pro se submission and that of PCR counsel, defendant raised two principal concerns as reflecting on his attorney's effectiveness. First, he asserted that trial counsel did not meet with him sufficiently to prepare a defense and, during the times the parties were together, the only issue discussed was payment of legal fees and not trial strategy. Second, given the "he said, she said" nature of the allegations, a critical factor underlying the case against defendant was the testimony of the State's expert, Dr. Francis Pelliccia. According to defendant, it thus was incumbent on defense counsel to retain an expert to counter and affirmatively neutralize the testimony of the State's witness and raise the possibility of reasonable doubt. However, trial counsel failed to do so. Defendant further claimed his attorney had no trial strategy and the failure to retain an expert to counter Dr. Pelliccia's expected testimony on the key medical issue severely prejudiced his defense and made a conviction probable.
In a nineteen-page written opinion, Judge Isabella rejected defendant's arguments, concluded that defendant failed to make a prima facie showing of ineffective assistance of counsel warranting an evidentiary hearing, and denied defendant's PCR petition.
As to the first claim of ineffectiveness, Judge Isabella found defendant "provided nothing aside from a vague, conclusory and unsubstantiated statement that his attorney failed to consult with him," and further found, with specific references, "the record indicates that [defendant] was represented thoroughly by his counsel during the time leading up to, and during the trial." The judge noted trial counsel's participation in pretrial hearings lasting three days, during which trial counsel sought to exclude statements of the victim to her father, grandmother, and the investigating detective, who also videotaped an interview with the victim. Defense counsel also sought to exclude the videotape. The court noted that during the cross-examination of the witnesses, defense counsel would pause and consult with defendant. The court further noted that a defense witness was produced who provided testimony favorable to defendant.
Judge Isabella was also satisfied that trial counsel's decision not to call a competing expert was trial strategy; instead, he made effective use of cross-examination. Specifically, the expert acknowledged he failed to consider if the damage to the hymen could have been caused by something other than digital penetration. The expert also admitted under cross-examination that it was not extremely rare to find a five-year-old girl's hymen was not intact. The court concluded the decision not to call a defense expert was a tactical one not subject to second-guessing.
Judge Isabella also addressed the claims asserted in defendant's supplemental brief of counsel's ineffectiveness in failing to call vital witnesses to testify at trial. Citing State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), the judge found the claims to be no more than bald assertions unsupported by certifications from the witnesses or, at a minimum, details of the omitted testimony.
Judge Isabella thus concluded that none of the issues raised by defendant were sufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). This appeal ensued.
Defendant renews his arguments on appeal, asserting:
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
IN THE ALTERNATIVE, DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
Based on our review of the record and applicable law, we are satisfied defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test warranting an evidentiary hearing. We are further satisfied that all of defendant's arguments raised on PCR are without substantive merit and his arguments renewed on appeal were more than adequately addressed by the PCR judge and do not warrant additional discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Isabella in his comprehensive written opinion.
We add the following brief comments. Defendant takes the position that defense counsel's showing up at trial, going "through the motions," and providing "some minimal amount of advocacy at trial" does not rise to the level of "proof that counsel fulfilled his duty of meeting and consulting with defendant." According to defendant, as a result of the lack of consultation, "defendant was essentially uncounseled when he made the decision to reject the State's plea offer and was then only marginally represented at trial by an attorney who had not communicated with him regarding trial strategy." This unsubstantiated rhetoric is simply a continuation of the vague, conclusory statements referenced by Judge Isabella throughout his opinion. Defendant does not explain what additional defenses could have been advanced had trial counsel met with him and provides no specifics regarding his decision to reject the State's plea offer and go to trial. It is apparent from the record that trial counsel sufficiently consulted with defendant and zealously represented him throughout the litigation.
It also appears from the record that defense counsel's trial strategy was to effectively cross-examine the State's forensic expert rather than retain his own expert in the area of child sexual abuse. Defendant is not entitled to an evidentiary hearing as a fishing expedition to ascertain why his attorney decided to forgo an expert and then analyze his trial strategy. See State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div.) (citing Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991)) ("In determining whether [a petitioner] has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations."), certif. denied, 181 N.J. 546 (2004). See also R. 3:22-10 (providing that in order to establish a prima facie case, a PCR petitioner must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the petitioner, will ultimately succeed on the merits); Preciose, supra, 129 N.J. at 462-63.
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