May 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANGEL MARTINEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2013.
On appeal before the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-03-1180.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Sabatino and Fasciale.
Defendant Angel Martinez, who was convicted of carjacking and other crimes in a 2006 jury trial, appeals the trial court's May 3, 2011 order denying his petition for post-conviction relief ("PCR"). In his petition, defendant alleged that he was deprived of the effective assistance of both his trial and plea counsel in various respects. For the reasons that follow, we affirm the trial court's order in substantial part, but remand for an evidentiary hearing as to defendant's specific claim that he was denied effective representation in the advice he received about the State's pretrial plea offer.
Defendant's convictions arose out of an August 2003 incident in Newark, in which a cab driver was attacked and robbed by two passengers. We incorporate by reference the underlying facts that are described at length in our unpublished opinion affirming defendant's convictions on direct appeal. State v. Martinez, No. A-1766-06 (App. Div. July 20, 2009), certif. denied, 200 N.J. 502 (2009).
Briefly stated, on August 29, 2003, at approximately 11:30 p.m., the victim, taxi driver Giovanny Mino, was dispatched to pick up passengers on Bloomfield Avenue in Newark. Mino picked up two men and drove them to James and Nesbit Streets, as requested. When the cab arrived at its destination, one of the men told Mino to "park on the side of the street." Given the nature of the neighborhood, Mino became apprehensive and turned on the overhead light inside the cab. The man sitting on the passenger side of the rear seat immediately turned the light off, and the other passenger, seated behind Mino, grabbed him around the neck. Id. at 3.
The man on the passenger side moved to the front seat and held Mino down, as the other man stabbed him with a screwdriver from behind in the shoulder and neck. Pleading with the men not to kill him, Mino offered them his money, but the two assailants continued their assault and ripped the cab driver's money from him. Eventually, Mino was able to grab the screwdriver from the man in the back seat. He opened the door and ran as the man in the front seat drove the cab away. Id. at 4.
Mino ran to the police station located on Nesbit Street. He was taken by ambulance to the hospital, where he was treated for his wounds. After leaving the hospital the next day, Mino returned to the police station, gave a statement, and provided a description of his assailants. While there, Mino viewed "a lot" of photographs from picture albums in an attempt to identify his assailants, but was unable to do so. Id. at 4.
Mino was subsequently contacted by Police Detective Jose Danoys on September 1, 2003, who informed him that a suspect had been located, and asked Mino to come to the station to view additional photographs. Mino assumed that he would be able to identify his assailants in these new photographs. He was shown six photos and he identified the sixth one as that of the person who was in the front seat, had held him down, and had driven the cab away when he fled. Mino immediately recognized this man because he was a regular customer of the cab company and in the past he would call requesting to be picked up from Pennington Street. Id. at 4-5.
On March 30, 2004, defendant was charged by an Essex County Grand Jury under Indictment No. 04-03-1180 with the following offenses: conspiracy to commit robbery and carjacking, N.J.S.A. 2C:5-2, 2C:15-1, 2C:15-2 (Count One); robbery, N.J.S.A. 2C:15-1 (Count Two); carjacking, N.J.S.A. 2C:15-2 (Count Three); aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Four); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Five); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Six).
On August 4, 2005, a pretrial hearing was held before the trial court to review defendant's position concerning the State's plea offer. In exchange for a guilty plea to Counts Two and Four of Indictment No. 04-03-1180 (arising from the incident in the cab) and Counts One, Three, and Six of Indictment No. 04-04-1248 (a separate indictment involving a different incident), the State offered to recommend that defendant serve a total of fifteen years imprisonment with an eighty-five percent parole disqualifier. After consulting with his trial counsel and being questioned by the judge in open court, defendant rejected the plea offer and proceeded to trial on Indictment No. 04-03-1180.
The trial was held over several days in January and February 2006. The State presented the eyewitness testimony of the victim, Mino, as well as testimony from Newark Police Officer Danoys, Newark Special Police Officer Wardell Mitchell, and Detective Antonio Badim. Defendant did not testify. The only witness he presented was Detective Vincent Cordi, who testified only to the fact that he had previously been in the company of defendant and had noticed that he had a substantial tattoo.
The jury returned a guilty verdict on Counts One through Four, and a not guilty verdict on counts Five and Six. The trial court denied defendant's motions for a new trial and motion for a judgment notwithstanding the verdict.
The court sentenced defendant to a twenty-one-year custodial term, with an eighty-five percent parole disqualifier, on Count Three. The court merged Count One into Count Two and issued a concurrent seventeen-year term on Count Two, also with an eighty-five percent parole disqualifier. Finally, the court imposed a concurrent eight-year term, with an eighty-five percent parole disqualifier, on Count Four.
On direct appeal in July 2009, we affirmed defendant's convictions and sentences imposed by the trial court, with the exception that Count Four be merged into Count Two. We consequently remanded the matter for resentencing. Martinez, supra, slip op. at 3. Defendant's petition for certification was denied in November 2009. State v. Martinez, 200 N.J. 502 (2009).
In January 2010 defendant filed a PCR petition with the trial court, arguing that he was deprived of effective representation by his trial attorney. More specifically, as clarified by his ensuing PCR briefs in the trial court and on the present appeal, defendant argues that his trial counsel: (1) misinformed him of his sentencing exposure from the carjacking offense, which led him to reject the State's plea offer; (2) failed to prevent the admission of prejudicial testimony that inferentially connected him to prior criminal conduct; (3) failed to block evidence of an unduly suggestive out-of-court identification; and (4) failed to conduct an investigation for evidence that would have discredited Mino's eyewitness testimony.
The PCR petition was referred to the same judge who had presided over defendant's trial. After oral argument on May 3, 2011, but without an evidentiary hearing, the judge denied the petition. In essence, the judge concluded that defendant's trial counsel had vigorously challenged the State's proofs, and that defendant had failed to show that any of the alleged errors would have changed the result, and, therefore, he had not been prejudiced.
Defendant now appeals the dismissal of his PCR petition, raising the following points for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT ADEUQATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO THOROUGHLY PURSUE THE MANNER IN WHICH THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS CONDUCTED AT THE WADE HEARING.
C. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT BY PERMITTING THE STATE TO ELECIT TESTIMONY FROM A POLICE OFFICER REGARDNG THE DEFENDANT'S ADDRESS, AND BY ELICITING TESTIMONY FROM A POLICE OFFICER DURING THE DEFENSE CASE REGARDING THE DEFENDANT'S TATTOO, WITH EACH WITNESS INFERENTIALLY CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT AS A RESULT THEREOF.
D. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM HIS ORIGINAL TRIAL ATTORNEY SINCE, AS A RESULT OF HIS ATTORNEY'S FAILURE TO ACCURATELY INFORM HIM WITH RESPECT TO THE STATE'S PLEA OFFER, HE REJECTED THE PLEA RECOMMENDATION AND INSTEAD PROCEEDED TO TRIAL, SUBSEQUENTLY RECEIVING A SENTENCE SIGNIFICANTLY GREATER THAN THAT EMBODIED IN THE PLEA OFFER.
E. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL WHEN COUNSEL, AFTER BEING ADVISED PRIOR TO TRIAL THAT THE VICTIM HAD HAD PAST DEALINGS WITH THE DEFENDANT AS A CUSTOMER WITH HIS TAXI CAB COMPANY, NEVER CONDUCTED ANY INVESTIGATION INTO THIS ALLEGAION, WHICH WOULD HAVE ADVERSELY IMPACTED THE VICTIM'S CREDIBILITY IN A SIGNIFICANT FASHION.
F. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE WAS AT LEAST ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS VARIOUS CONTENTIONS RELATING THERETO.
We reject these contentions of error, except with respect to the court's denial of an evidentiary hearing to delve into trial counsel's advice concerning the plea offer. We turn to that discrete issue first.
Pursuant to the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. 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-part test in New Jersey).
"With respect to both prongs of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___, U.S. ___, 113 S.Ct. 1454, 185 L.Ed.2d 361 (2013). "Ultimately, a PCR petition is a defendant's last chance to challenge the fairness and reliability of a criminal verdict in our state system. If an error led to a miscarriage of justice in an earlier trial, the PCR proceeding must provide a meaningful opportunity to root it out." State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted) (internal quotation marks omitted).
In an opinion issued in 2012, the year after the PCR judge's decision in the present case, the United State Supreme Court extended the principles of effective assistance of counsel to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398, 409 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Ibid. If that right is denied, "prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence." Ibid.
Apart from requiring a showing that the trial resulted in a more severe sentence than the sentence proposed in the plea offer, the Lafler Court explained that the second prong of Strickland requires a defendant to show that:
but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), [and] that the court would have accepted its terms[.]
Id. at, 132 S.Ct. at 1385, 182 L.Ed.2d at 467 (emphasis added).]
Here, as we have noted, in exchange for a guilty plea to Counts Two and Four of Indictment No. 04-03-1180 (arising from the incidents discussed above) and Counts One, Three, and Six of Indictment No. 04-04-1248, the State agreed in its initial plea offer to recommend that defendant serve a total of fifteen years imprisonment with an eighty-five percent parole disqualifier.
As the State concedes, however, the pretrial memorandum delineating the terms of the plea offer was flawed, as it incorrectly indicated that the maximum exposure for Count Three (first-degree carjacking) was twenty years if defendant were to go to trial. The correct maximum exposure for carjacking is actually thirty years. N.J.S.A. 2C:15-2(b) ("upon conviction thereof a person may . . . be sentenced to an ordinary term of imprisonment between [ten] and [thirty] years").
This error with respect to Count Three was repeated on the record three times in the colloquy at the pretrial conference:
[THE COURT:] [Defense counsel] has listed as the maximum if convicted up to twenty years . . . .
[DEFENSE COUNSEL:] I was going to explain to [defendant] that . . . N.E.R.A. is applicable so that would mean . . . on the twenty years he would be looking [at] roughly . . . seventeen and a half years.
[PROSECUTOR:] I would just like to close the record with this. If the defendant were convicted of both these cases the State would be seeking consecutive sentences which would raise the max[imum] to forty years.
Defendant argues that he received deficient advice concerning the plea offer because his "trial counsel advised [him that] his maximum exposure [on carjacking] if he proceeded to trial was a [twenty-]year term when, in fact, the maximum exposure was a [thirty-]year term." He contends that he relied upon this incorrect information in deciding to reject the State's plea offer and proceed to trial; had he known that his maximum exposure was actually thirty years, defendant asserts he would have accepted the plea offer. In this respect, defendant's certification filed in support of his PCR petition asserts that:
3. At [the pre-trial conference, my attorney] told me about the offer and had me sign a [p]retrial [m]emorandum saying that I understood the deal and that it would only be available that day. At that time he also told me, as well as indicated on the [p]retrial [m]emorandum, that if I went to trial and was convicted, I would face a maximum of twenty (20) years in prison. At no point did he tell me that I could, in fact, face ten (10) years more than that.
4. I did not realize at that time how many years in prison I would be facing if I was convicted, so based on the information and advice [my attorney] had given me, I rejected the plea offer.
5. If [my attorney] had told me that I could have gone to prison for thirty (30) years if convicted, I would have accepted the offer.
Although the State acknowledges that defendant was incorrectly advised of the maximum exposure for the carjacking offense, it asserts that the harm was remedied because the State indicated that defendant could receive a forty-year term of imprisonment if issued a consecutive sentence, which the State also made clear that it planned to pursue. Moreover, as to defendant's claim of prejudice, the State argues that:
It is reasonable to infer . . . that given the fact the defendant continued to reject a fifteen[-]year plea offer after he was informed by the prosecutor that he faced a possible sentence of forty years should he proceed to trial, he would have similarly rejected the same offer had he . . . been apprised that the carjacking offense carried a maximum sentence of thirty years.
At the PCR hearing, the trial court agreed with the State's argument that defendant could not have been prejudiced by the incorrect representations made about his exposure for first-degree carjacking. The judge reasoned that, "by matter of simple arithmetic, [defendant] knew or should have known that he was facing at least [forty] years" in consecutive terms for carjacking and robbery. Recognizing that defendant was ultimately sentenced to an aggregate twenty-one-year term, the judge found that that there would not have been "a different result had the [thirty-]year maximum for carjacking been noted on the plea sheet." Consequently, the court found no reason to conduct an evidentiary hearing on the plea advice issue.
In light of the doctrinal guidance that has since been provided by the Supreme Court in Lafler, we conclude that an evidentiary hearing was warranted on the plea advice issue in this case. Given the mistaken references that were repeated in the pretrial memorandum and in open court about the maximum sentence for carjacking, it appears that trial counsel shared with the judge and the prosecutor the misimpression that the maximum exposure on that count was twenty, rather than thirty, years. Hence, there are substantial indicia that the first prong of the Strickland/Lafler test, i.e., deficient performance, could be satisfied here. Subject to the proofs at a plenary hearing, a prima facie showing on this prong has been made. State v. Preciose, 129 N.J. 451, 463 (1992).
The critical question thus becomes the second prong of the analysis, i.e., whether defendant was likely to have been prejudiced by a mistaken understanding about his exposure on the carjacking count. The trial court and the State perceive that no such prejudice could have occurred here, because defendant was informed that he had a higher exposure than twenty years if the court imposed consecutive sentences.
It is true that defendant was told in the pretrial memorandum and in open court that he could have faced an aggregate term of forty years. There are two problems with ending the inquiry there, however. First, defendant's aggregate consecutive exposure on carjacking and robbery was actually fifty, not forty, years. More importantly, the materiality of what defendant was told about his specific exposure for carjacking depends upon what advice he was given by his counselabout the likelihood that the court would impose consecutive sentences in this case, as that will inform the inquiry into whether "defendant would have accepted the plea." Lafler, supra, 566 U.S. at ___, 132 S.Ct. at 1385, 182 L.Ed.2d at 407. If, hypothetically, trial counsel advised defendant that consecutive sentences were likely then we agree that it is unlikely he was materially prejudiced by a false impression that carjacking itself exposed him to only a twenty-year maximum term On the other hand if counsel advised defendant that consecutive terms were possible but not likely that increases the possibility that defendant might have been prejudiced in weighing whether to accept the plea offer or go to trial
Given these circumstances it is important to ascertain what if any advice defendant received from his trial attorney concerning the prospect of consecutive sentences Because the record is silent on that question we remand for an evidentiary hearing to explore the issue ideally with testimony from trial counsel and from defendant himself The fact that defendant received a sentence of twenty-one years a full year above the perceived maximum for carjacking and six years above the State's plea offer to recommend fifteen years would be consistent with such a claim of prejudice if plaintiff can also prove on remand that he would have accepted the plea absent the incorrect information he received Following the evidentiary hearing on remand the trial court shall make appropriate credibility findings and reconsider whether in light of those findings and the guidance of Lafler any relief should be afforded to defendant
The remaining arguments raised by defendant lack sufficient merit to be worthy of comment. R. 2:11-3(e)(2). We reject those arguments, substantially for the procedural and substantive reasons cogently set forth in the PCR judge's bench ruling. We add only a few remarks in passing.
The issues regarding the alleged suggestiveness of the identification procedure were already raised and rejected on direct appeal, see Martinez, supra, slip op. at 6-11. Those issues are thus procedurally barred under Rule 3:22-5. Moreover, we detect nothing of substance in this argument to warrant intervention. We also note that the more enhanced requirements for identification recently announced by the Supreme Court do not retroactively apply to this 2006 trial. State v. Henderson, 208 N.J. 208, 288-94, 300-02 (2012).
Trial counsel also was not clearly deficient with respect to the testifying officers' references to defendant's home address and to his tattoo. Defendant argues that such testimony must have shown that the police knew him from a previous encounter. We regard that inference as too attenuated to be worthy of redress on this PCR application. Indeed, the testimony about the tattoo potentially could have been helpful to defendant because Mino did not mention a tattoo in his description of the perpetrators. It is not the court's function to second-guess a defense attorney's trial strategy on such matters State v Perry 124 N.J. 128 153 (1991) We also detect no error of a constitutional magnitude in Detective Badim's fleeting reference to a prior March 2004 police report that mentioned defendant.
Lastly we concur with the trial judge that there is no merit to defendant's claim that his trial attorney should have investigated the taxi company's customer records in order to impeach Mino's testimony about recognizing defendant from past observation The claim that such investigation would have been fruitful is entirely speculative There is no showing that such records even if they still existed would have been probative State v. Cummings 321 N.J. Super 154 170 (App Div 1999) (noting that "bald assertions" in a PCR application are inadequate to demonstrate that trial counsel was constitutionally ineffective) certif denied 162 N.J. 199 (1999)
Affirmed in part and remanded in part for an evidentiary hearing solely concerning the plea advice issues We do not retain jurisdiction.