September 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUDITH CASTILLO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-02-0304.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012 -
Before Judges Payne, Simonelli and Hayden.
Defendant, Judith Castillo, was involved in a love triangle with John Tambe and Nesrine "Sue" Jassim. On November 9, 1999, defendant went to Sue's house, and in her absence, stabbed Sue's sister, Dania Jassim, and, when she came to Dania's aid, allegedly assaulted Dania's mother, Rajaa Malas. Defendant was charged with two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1), two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Following trial, she was convicted of all charges except the attempted murder of Malas. The trial judge sentenced defendant to thirteen years in custody subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the attempted murder of Dania Jassim, to a consecutive five-year term for second-degree assault on Malas,*fn1 and to a concurrent five-year term for possession of a weapon for an unlawful purpose. The remaining convictions were merged.
On appeal, we reversed, finding error in the admission of an excessive amount of other crimes evidence, pursuant to N.J.R.E. 404(b), without sufficient redaction and timely limiting instructions. State v. Castillo (Castillo I), No. A-5260-01 (App. Div. July 27, 2004) (slip op. at 8-16).
The case was retried, resulting in verdicts of guilty on all charges relating to Dania Jassim and not guilty on charges relating to her mother. The same judge sentenced defendant to fifteen years in custody, subject to the parole ineligibility provisions of NERA, on the attempted murder charge and to a concurrent four-year sentence on the weapons charge. On appeal, we affirmed the convictions but reversed the sentence, ordering the weapons charge to be merged with the attempted murder charge. State v. Castillo (Castillo II), No. A-4597-05 (App. Div. July 11, 2008) (slip op. at 18).
In connection with that appeal, defendant argued that the sentence imposed on her violated double jeopardy because it exceeded the aggregate sentence imposed following the first trial, and that it was manifestly excessive. Both arguments were unsuccessful. Slip op. at 15-17 (rejecting double jeopardy arguments) and at 17-18 (rejecting excessive sentence arguments). Following denial of certification, State v. Castillo, 196 N.J. 598 (2008), defendant moved for post- conviction relief (PCR), which the original trial judge denied without an evidentiary hearing. This appeal followed.
On appeal, defendant makes the following arguments:
DEFENDANT'S SENTENCE AFTER RETRIAL OF 15 YEARS WITH AN 85% NERA PAROLE INELIGIBILITY PERIOD IS VINDICTIVE AND IMPERMISSIBLY INCREASED HER REAL TIME SENTENCE IN VIOLATION OF HER RIGHT TO DUE PROCESS UNDER THE 5TH AND 14TH AMENDMENTS OF THE CONSTITUTION. (RAISED IN PART BELOW)
A. Defendant's Sentence After Retrial Of
15 Years With An 85% NERA Parole Ineligibility Period Impermissibly Increased Her Real Time Sentence In Violation Of Her Right To Due Process Under The 5th and 14th Amendments Of The United States Constitution and Article I, Paragraph 10 Of The New Jersey Constitution. (Raised In Part Below)
B. Defendant's Sentence is Impermissibly Vindictive. (Not Raised Below)
THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY QUASHING THE SUBPOENA ISSUED TO SUE JASSIM ON THE MISTAKEN GROUND THAT R. 1:9-1 IMPOSED A FIVE DAY SERVICE REQUIREMENT, THEREBY DEPRIVING DEFENDANT THE OPPORTUNITY TO OBTAIN CRITICAL TESTIMONY IN SUPPORT OF HER SELF-DEFENSE CLAIM. (RAISED IN PART BELOW)
THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND, THEREFORE, THE PCR COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT'S PCR PETITION OR, ALTERNATIVELY, BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING.
A. The Strickland Standard.
B. Defendant Established a Prima Facie Case Of Ineffective Assistance of Trial Counsel Where Counsel Failed to Explore a Psychiatric Defense on Retrial.
C. To The Extent That Defense Counsel Improperly Subpoenaed Sue Jassim, Trial Counsel Rendered Ineffective Assistance.
D. Defendant Established a Prima Facie Case Of Ineffective Assistance of Trial Counsel Where Counsel Failed to Use Transcripts from Defendant's First Trial to Impeach Witnesses at Her Retrial.
E. Trial Counsel's Multiple Errors, Both Individually or Cumulatively, Rise to the Level of Ineffective Assistance of Counsel Under Strickland and the Sixth Amendment.
THE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND, THEREFORE, THE PCR COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S PCR PETITION OR, ALTERNATIVELY, REFUSING TO HOLD AN EVIDENTIARY HEARING.
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF SUPPORT HER REQUEST FOR POST-CONVICTION RELIEF.
We affirm in part and reverse in part.
On appeal, defendant argues first that the sentence of fifteen years in custody, subject to the parole disqualification provisions of NERA, imposed following the second trial and conviction only for crimes against Dania Jassim, not for those allegedly committed against Malas, impermissibly requires her to serve more real time in prison than she was required to serve following her conviction in the first trial for crimes committed against both Dania Jassim and Malas. See State v. Cooper, 402 N.J. Super. 110, 116-17 (App. Div. 2008), certif. denied, 203 N.J. 94 (2010). She argues additionally that the sentence was "vindictive." Although we could decline to consider these arguments as barred by Rule 3:22-5, to the extent that they were considered and rejected on appeal, and by Rule 3:22-4, to the extent that they could have been raised on direct appeal, we find them to be of sufficient merit to warrant substantive discussion.
Our decision on defendant's appeal from her second conviction was issued on July 11, 2008. On August 6, 2008, Cooper was decided. In that case, the defendant initially received a fifteen-year custodial sentence, subject to NERA, following a conviction for first-degree aggravated sexual assault, as well as a consecutive seven-year sentence for burglary. On appeal, we affirmed his convictions, but reversed the sentences, determining that there was "'no acceptable basis for the consecutive sentence [for] burglary[.]'" Id. at 112.
On remand, the defendant received a seventeen-year sentence, subject to NERA, for the aggravated sexual assault and concurrent terms on his other convictions. The judge relied on conditional discharges in New York to support aggravating factors that justified the longer term. Id. at 113. On appeal, we once more remanded in light of State v. Natale, 184 N.J. 458 (2005) and for consideration of whether the defendant's conditional discharges could be deemed to be "prior convictions" under principles established in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). On remand, the same seventeen-year sentence was imposed. Cooper, supra, 402 N.J. Super. at 113.
On further appeal, the defendant argued, in part, that he was denied due process because he was penalized for appealing as reflected in an increase in the real time he was required to serve, as the result of NERA, which was not based on facts found to have occurred since imposition of the first sentence. Id. at 114-15. See North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). After a discussion of Federal and State precedent, we held:
We need not delve into constitutional principles at length because in New Jersey it is fundamental that "the basic sentencing issue is always the real time defendant must serve, and we have always recognized that real time is the realistic and practical measure of the punishment imposed." State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001). . . .
We will assume, without deciding, that there is no federal double jeopardy or due process violation by an increase of the NERA ineligibility term in this case, and certainly no "vindictiveness" for purposes of North Carolina v. Pearce. However, if the increased sentence on the aggravated sexual assault conviction results in the increase of the aggregate period of parole ineligibility and real time to be served before parole eligibility, the specific term may not be increased above the term which would produce the same period of parole ineligibility as the original sentence. [Cooper, supra, 402 N.J. Super. at 116-17.]
In Cooper, the matter was remanded to permit the trial judge to consider whether the real time was, in fact, increased. Id. at 117. In the present matter, it is clear that it was. Further, the record does not suggest any conduct on defendant's part after the first trial that would provide justification for any increase. As a consequence, we vacate the sentence imposed on defendant and remand for resentencing in accordance with Cooper. We take this unusual step as the result of our recognition that Cooper established principles of law that had not been decided at the time of defendant's second appeal. As a consequence, counsel cannot be faulted for not raising the issues that have now been presented, nor should defendant be denied the benefit of the clarification of the law that has now occurred. R. 3:22-4(a)(1) and (2); State v. Mitchell, 126 N.J. 565, 584-89 (1992).
At trial, defendant served a subpoena upon Sue Jassim during or after her testimony for the State. That testimony concluded at the end of the day on April 4, 2005, after which time Sue planned to return home, utilizing an airline reservation for a flight that evening. Following the completion of trial proceedings that day, at 4:55 p.m., defense counsel sought an order from the trial judge enforcing the subpoena. The judge heard the application in chambers and declined to interfere with Sue's travel plans. On the following day, when recorded proceedings became possible, the judge quashed the subpoena, ruling that it was untimely served pursuant to Rule 1:9-1.
In her PCR petition, defendant argued for the first time that the judge erred in quashing the subpoena, because the rule does not specify a time for service of a trial subpoena such as that served on Sue, but only requires that a notice in lieu of subpoena be served five days before the appearance is required. Defendant claims further that, if Sue had testified, she would have corroborated defendant's story that she went to Sue's house to pick up Rhode Island license plates belonging to defendant's sister that had been stolen by Tambe and, for some reason, had been given by Tambe to Sue. That testimony, defendant claims, would have buttressed her own testimony to that effect and would have supported her position that Dania Jassim and Malas initiated an assault on defendant after defendant had been lured to the residence. As a consequence, defendant asserts that she was denied her constitutional right to compulsory process. See State v. Garcia, 195 N.J. 192, 202 (2008); State v. Bellamy, 329 N.J. Super. 371, 378 (App. Div. 2000).
However, this is an argument that should have been raised on direct appeal, and we decline to consider it finding none of the exceptions to the preclusionary rule to be applicable in the present circumstances. R. 3:22-4(a). We add only that defendant offers no substantial reason for failing to subpoena Jassim at an earlier time, thereby avoiding the last-minute application to the trial judge and giving Jassim an opportunity to adjust her travel plans. Testimony regarding Sue's possession of the license plates had been presented by defendant at the initial trial, and was discussed in our initial opinion.
Castillo I, supra, slip op. at 5. Thus, as the trial judge recognized, this was not a circumstance, as presented in Bellamy, supra, 329 N.J. Super. at 378, in which counsel was confronted with unanticipated events requiring some accommodation by the judge.
Moreover, we note that the record contains no evidence whatsoever to support defendant's claim that Jassim would have testified in the manner that defendant contemplated.
Defendant next contends that she established before the PCR judge prima facie evidence of ineffective assistance of trial counsel, and that the judge erred under standards established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), in denying her PCR petition or in failing to hold an evidentiary hearing. We disagree.
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Defendant claims ineffectiveness by trial counsel as the result of her failure to explore a psychiatric defense on retrial in addition to, or in lieu of, defendant's claims of self-defense. She claims that, at a minimum, her psychiatric history should have been considered as a mitigating factor at sentencing. In support of these positions, defendant states that she was examined by two psychological experts, one of whom had diagnosed defendant in a letter of June 18, 2001 with "Adjustment Disorder with Disturbance of Emotions and Conduct -Resolved." If introduced, defendant claims that this evidence would have been sufficient to support a defense of diminished capacity to the charge of attempted murder. Additionally, defendant claims to have been emotionally abused by Tambe.
However, the State points out that, before the first trial, it had defendant psychologically evaluated, and its psychologist was prepared to rebut any testimony presented on defendant's behalf. As a consequence, defendant cannot demonstrate and has not demonstrated any likelihood that, if the evidence had been presented, it would have resulted in a different verdict. Because the psychological report upon which defendant relies is not contained in the record on appeal, we are unable to further evaluate the merits of defendant's argument.
We note that defendant's argument regarding counsel's failure to raise her mental status as a mitigating factor at sentencing is not cognizable in a PCR proceeding. State v. Acevedo, 205 N.J. 40, 46-47 (2011).
While correctly contending that the trial judge erred in requiring that defendant serve Sue Jassim with a trial subpoena five days before her testimony was required, defendant alternatively contends on appeal from the denial of PCR that counsel was ineffective in not serving the trial subpoena at an earlier time. We have addressed that argument previously, and find no need to address it further in the context of a claim of ineffective assistance of trial counsel. R. 2:11-3(e)(2).
Defendant also contends that trial counsel was ineffective in failing to use the transcripts of the first trial and the statements of Dania Jassim, Sue Jassim, and Malas to impeach them at the second proceeding. In her appellate brief, defendant then cites to various inconsistencies in the testimony of the three witnesses. However, as defendant admits, "counsel's failure to point out these inconsistencies may not have amounted to much." Our review of the record satisfies us that, in the aggregate, they amount to no more. Further, we note our conclusion in Castillo II that the inconsistencies offered on direct appeal between testimony at the retrial and that given earlier actually benefited defendant's position. Slip op. at 11. As a consequence, we do not find a reasonable probability that the result would have been different if defense counsel had conducted her cross-examination of the State's witnesses in a fashion different from that which she employed.
We decline to address defendant's argument that appellate counsel was ineffective in failing to raise the sentencing arguments set forth in her petition for PCR, having previously resolved those arguments on a substantive basis. R. 2:11-3(e)(2). We similarly decline to address the argument, set forth in defendant's pro se PCR petition, that counsel was ineffective in failing to assert defendant's pregnancy as a mitigating factor at the time of sentencing. Ibid.
Affirmed in part; reversed and remanded in part.