January 17, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIO FLORES A/K/A TONY AHUECO AND JULIO F. HUEZO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0778.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
Before Judges Simonelli and Koblitz.
Defendant Julio Flores appeals from the November 12, 2010 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.
Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges stemmed from defendant's robbery of the victim at knifepoint inside her home. The victim recognized defendant's voice during the robbery, and identified him to the police as the man who slept in the stairwell of her apartment building whom she had befriended and known for four years. At trial, it was defendant's strategy to challenge the victim's identification.
At sentencing, Judge Vena found and applied five aggravating factors, N.J.S.A. 2C:44-1a(1), (2), (3), (6) and (9). He sentenced defendant to a fifteen-year term of imprisonment subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Flores, No. A-3077-06 (App. Div. March 7, 2008), certif. denied, 195 N.J. 523 (2008). Defendant timely filed a PCR petition, contending that trial counsel rendered ineffective assistance by failing to have defendant testify; object to the prosecutor's statement of opinion during summation; and diligently argue that aggravating factors 1, 2, 3, 6 and 9 did not apply. Defendant also claimed counsel failed to adequately investigate a potential alibi witness -- a security guard who defendant allegedly reported a fire to at another location at the time of the crime.*fn1
In a November 12, 2010 written order and opinion, Judge Vena denied the petition, concluding that defendant failed to establish the two-prongs set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge found that defendant waived his right to testify following the judge's lengthy questioning; failed to provide the name of or an affidavit from the security guard; defense counsel had objected several times to the prosecutor's summation; and counsel was not ineffective in failing to object to the aggravating factors, as defendant received a mid-range sentence. This appeal followed. On appeal, defendant argues that Judge Vena erred in not granting an evidentiary hearing. We disagree.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland. Id. at 463. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey).
"[I]n order to establish a prima facie claim, [the defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "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.
There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy.
Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.
When claiming that trial counsel inadequately investigated the case, the defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial.
Applying the above standards, we discern no reason for an evidentiary hearing. Defendant failed to make a prima facie showing that counsel rendered ineffective assistance. He produced no certification or affidavit from the security guard confirming the security guard could have provided alibi testimony. Such documents are required to prove ineffective assistance of counsel based on an inadequate investigation. Ibid.
In addition, defendant knowingly and intelligently waived his right to testify at trial after Judge Vena extensively questioned him, and defense counsel made numerous objections during the prosecutor's summation. Finally, the record supported the aggravating factors Judge Vena found and applied. State v. Bieniek, 200 N.J. 601, 608 (2010). Defendant attacked the victim as she was leaving her apartment at night to go to work. He pushed her backwards into the apartment, struck her, placed his arm around her throat, placed a knife to her back, and told her not to scream. He pushed the victim to her bedroom and demanded that she give him money. He took $1000 and all of the victim's jewelry, and again pushed the victim before leaving the apartment. Defendant has a prior criminal record, which includes an indictable conviction and several municipal convictions.