July 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS ALEMAN, A/K/A MUDO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-05-00676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011 -
Before Judges Simonelli and Hayden.
Defendant, Luis Aleman, appeals from the April 22, 2010 order, which denied his petition for post-conviction relief (PCR). We affirm.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b.
The charges against defendant stem from an incident that occurred on the evening of December 20, 2003, when defendant and a group of friends were socializing in the parking lot of a liquor store. An argument broke out and defendant and Miguel Pomales became involved in a fight. According to the State's evidence, defendant retrieved a handgun from the trunk of his car and shot Pomales in the back as he tried to flee. The victim fell to the ground, and defendant moved closer and fired two more shots, hitting him in the neck and head. He died immediately. Several eyewitnesses, who provided statements to the police, identified defendant as the assailant. Defendant's girlfriend gave a statement to the police disclosing that defendant told her he had shot and killed Pomales.
Defendant is hearing impaired and can communicate only through sign language. At all of the ensuing court proceedings, a sign language interpreter was provided to communicate on behalf of defendant. When defendant met with his attorney, she was always accompanied by a sign language interpreter. Various interpreters served in this capacity.
In September 2005, the State offered defendant a plea agreement to plead guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b with an aggregate twenty-four year prison term that included an 85% parole disqualifier. After discussing the offer with his attorney, defendant asked to speak directly to the judge about the plea.
At the plea hearing before Judge Randolph Subryan on October 6, 2005, the judge reviewed the plea offer in great detail with defendant. In addition, the judge informed defendant of his right to a full trial, and explained the possible sentence he could face if convicted at trial. When the judge asked if everything had been properly translated, defendant confirmed it had. The judge then asked if he had any questions, and defendant responded that he understood clearly.
THE COURT: What do you want to do, Mr. Aleman? DEFENDANT: I will accept the plea, your Honor.
THE COURT: You will accept the plea offer? DEFENDANT: Yes, your Honor.
THE COURT: And you understand all the terms and conditions that I just explained to you?
DEFENDANT: Yes, yes, yes.
Next, the judge proceeded to question defendant extensively regarding his understanding of the plea and sentence, its factual basis, and the voluntariness of his decision.
THE COURT: Mr. Aleman, did anybody force you to say what you just said to me, sir?
THE DEFENDANT: No, no.
THE COURT: You understand you have admitted to me two crimes, aggravated manslaughter and certain persons not to have weapons?
THE DEFENDANT: Yes.
THE COURT: Did you do so of your own free will?
THE DEFENDANT: Yes.
THE COURT: Did anybody make any threats or promises to you causing you to admit those two offenses here today?
THE DEFENDANT: No.
THE COURT: Now, you are here today because you requested to come over here to meet with me; is that correct?
THE DEFENDANT: Yes.
THE COURT: And you understood everything that went on here today?
THE DEFENDANT: Yes.
The proceeding was adjourned until the following day due to the unavailability of the sign language interpreters in the afternoon. The parties returned on October 7, 2005, and defendant confirmed that he understood the terms and conditions of the guilty plea; that the plea was voluntary; and that he wished to proceed with the plea. He also stated that no one coerced him; that he was satisfied with the services of his attorney; and that he had no additional comments to make to the court.
On January 20, 2006, defendant, represented by a new attorney, appeared before Judge Subryan and indicated that he wished to withdraw his guilty plea. At the October 27, 2006 plea withdrawal hearing, defendant testified that trial counsel had coerced him into pleading guilty, and that miscommunication between himself and the sign language interpreters prevented him from understanding the plea proceedings. He claimed that, when he testified that he had shot the victim three times in the back, he thought he was telling the trial court he did not kill anyone. He contended that he never agreed to plead guilty as he was innocent of the murder. He testified that his first trial counsel forced him to sign the plea forms and instructed him to answer "yes" to any question.
Judge Subryan denied the motion, finding that the record demonstrated defendant had pled guilty knowingly and voluntarily, and that his testimony lacked credibility. The judge observed that defendant acknowledged that the interpretations of his answers to questions unrelated to the guilty plea, e.g., about defendant's age, place of birth, and education, were accurate. The judge did not believe that the interpreters would have correctly communicated these questions and answers, but not those pertaining to the crime.
After weighing the aggravating and mitigating factors, Judge Subryan imposed an aggregate term of twenty-four years with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed a direct appeal, arguing that his sentence was excessive. On June 17, 2008, this court affirmed the sentence. State v. Aleman, No. A-2283-06 (App. Div. June 17, 2008). Defendant appealed to the Supreme Court, which denied certification. State v. Aleman, 196 N.J. 466 (2008).
Defendant subsequently filed a pro se PCR petition on December 19, 2008, arguing, "I received [i]neffective [a]ssistan[ce] of [c]counsel for failure to have full appeal for my withdraw[al of my] plea, and failure to have [a] sign interpreter who explained everything." Defendant's appointed PCR counsel filed a supplemental brief, raising the following issues:
POINT I - PETITIONER'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES ARE NOT BARRED BY [Rule] 3:22 ET SEQ.
POINT II - PETITIONER WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
POINT III - TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADEQUATELY ARGUE THE MOTION TO WITHDRAW PETITIONER'S GUILTY PLEA OR, IN THE ALTERNATIVE, THE CLARIFICATION IN THE LAW WARRANTS A WITHDRAWAL OF THE GUILTY PLEA.
After a hearing on the PCR petition at which defendant testified, Judge Caposela denied the petition. He noted that defendant's ineffective assistance claims were based on the following allegations: his first trial counsel coerced a guilty plea from him and did not adequately investigate the factual circumstances surrounding the victim's death; his second trial counsel did not adequately argue the motion to withdraw the guilty plea because she did not argue that witnesses provided differing factual accounts of the shooting and did not emphasize the involuntariness of defendant's plea; and finally, appellate counsel was ineffective for failing to raise the issue of second trial counsel's ineffectiveness.
Judge Caposela analyzed defendant's ineffective assistance of counsel claims under the two-part test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987). Regarding the first part, which requires that the petitioner show counsel's performance was deficient, id. at 52, the judge found that his first trial counsel was not ineffective and the record of the plea hearing demonstrated that she did not coerce him into a guilty plea. The judge noted that the record showed that defendant was aware of the risks of proceeding to trial and it was on this basis that he freely chose to plead guilty.
Next, Judge Caposela found that second trial counsel was not ineffective in arguing the motion to withdraw the guilty plea. He observed that, as any competent attorney would, counsel called defendant to testify about his claim of coercion. Judge Subryan denied the motion not because of counsel's performance, but because he did not believe defendant's story. Last, the judge ruled that regarding appellate counsel's alleged deficiency, since neither trial counsels' performances was deficient, appellate counsel properly declined to argue this issue.
The judge then opined that even if defendant had shown that counsels' performance fell below the professional standard, he could not satisfy the second part of the Strickland test, which requires defendant to show that he was prejudiced by the deficient performance. Fritz, supra, 105 N.J. at 52. Because evidence of defendant's guilt was overwhelming, the result of the proceeding would not have been different. Thus, the judge concluded that defendant's claim of ineffective assistance of counsel did not meet the requirements of the Strickland test and denied relief. This appeal followed.
On appeal, defendant raises the following points for consideration:
POINT I - SINCE THE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST, THE PCR COURT ERRED IN DENYING POST-CONVICTION RELIEF.
POINT II - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR PLEA PROCEEDING, FREE FROM COERCION BY TRIAL COUNSEL AND MISCOMMUNICATION BY AN UNCERTIFIED SIGN LANGUAGE INTERPRETER, WAS VIOLATED.
POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV - DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN [PETITION FOR] POST-CONVICTION RELIEF.
We have carefully considered defendant's contentions in view of the applicable law and the record, and we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). From our review of the entire record, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorneys' performances were deficient or resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We affirm substantially for the reasons expressed by Judge Caposela in his thorough and well-reasoned written opinion dated April 22, 2010.
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