July 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FRANCISCO J. SANCHEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2013
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-10-0971.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Espinosa and Guadagno.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm, substantially for the reasons set forth in the written decision of Judge Ralph L. DeLuccia, Jr.
Defendant entered a guilty plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), pursuant to a plea agreement in November 2000. The charge arose from the savage stomping and kicking of Juan Cruz by defendant and co-defendant Lameek Walker. Cruz died approximately ninety-six hours after the attack. An autopsy revealed traumatic injury to the neck, face, and skull, as well as significant swelling to the brain and damage to the spinal cord. The medical examiner noted Cruz's cause of death as "[c]raniocerebral and spinal injury" and ruled Cruz's death a homicide.
At the plea hearing, defendant's attorney, Laura Sutnick, reviewed with him the fact that he had been indicted for first-degree murder, and that, if convicted, the penalty was life imprisonment with a thirty-year period of parole ineligibility. Defendant confirmed his understanding of those facts. Upon questioning by Sutnick, defendant agreed she had visited him several times in jail; that they had discussed the facts in the discovery, the likelihood of success of possible defenses, what his trial testimony would be if he testified at trial, and the likely success of that testimony. He agreed that after they reviewed discovery and discussed possible defenses, Sutnick recommended he plead guilty to first-degree aggravated manslaughter with an exposure of nineteen years incarceration. Defendant testified that he wanted to follow her recommendation.
In providing a factual basis for his guilty plea, defendant testified he and Walker were walking in Paterson on August 5, 1998. He saw Juan Cruz run in front of him. Defendant threw a punch at Cruz and missed. Cruz continued to run across the street. Defendant and Walker followed Cruz and when they got across the street, Cruz attempted to throw a punch at defendant but missed. The three of them "tangled up and tussled." Cruz fell to the ground. Defendant testified, "[Lameek] and I proceeded to kick him." Defendant admitted that he "personally stomp[ed] on [Cruz's] head several times so that he became immobile[.]" Defendant and Walker left Cruz lying on the ground. Defendant testified further that while he was stomping on Cruz's head, he understood that there was a "substantial likelihood that [his] actions would cause physical injury or even death because [he was] wearing shoes and [was] stomping on his head[.]"
Defendant was sentenced to nineteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five year period of parole supervision. Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence by order dated February 6, 2002. The Supreme Court denied his petition for certification, 174 N.J. 548 (2002).
In May 2004, defendant filed a pro se PCR petition and motions for a new trial and a reduction in his sentence. He claimed he was denied the effective assistance of counsel and that the trial court "failed to scrupulously protect his rights during the plea proceedings." In his brief, defendant argued that his trial counsel failed to advise him he was waiving his right to have the jury consider whether NERA applied and misinformed him about his sentencing exposure; and that appellate counsel was ineffective in failing to challenge trial counsel's effectiveness.
A supplemental brief was submitted on behalf of defendant in which it was argued that trial counsel had been ineffective in failing to conduct an investigation because such investigation would have shown that "the proximate cause link between defendant's action and [the victim's] death was seriously in doubt."
The contention that evidence of causation was vulnerable to attack was premised upon the fact that, after defendant and Walker beat Cruz senseless and left him lying on the ground, a bystander came to Cruz's aid. Marlene Colon told police she picked up Cruz's head and tried to awaken him but stopped when he started to shake and she realized he was seriously hurt. In addition, John E. Adams, M.D. prepared a draft expert report,  which was provided to defense counsel, in which he opined:
The spinal cord injury was magnified by Ms. Colon's efforts to help her friend, which efforts undoubtedly increased the damage to his cervical spinal cord . . . [and] the manipulation may have extended the damage to his spinal cord and brain from life-threatening to unsurvivable. Unfortunately, there is no way to separate the injuries and their sequalae due to the kicking from the adverse effect of manipulating his head and placing him in a semi-recumbent position leaning against a building.
The PCR court conducted an evidentiary hearing on defendant's contentions. Sutnick testified that she graduated law school in 1992 and worked as a senior trial attorney in the Brooklyn District Attorney's office for seven years. She estimated that she was the lead attorney on over fifty criminal trials as a prosecutor, and was involved in many more criminal trials as defense counsel. She began a private practice in New Jersey in 1999, which was almost exclusively dedicated to criminal law.
Sutnick was retained by defendant's mother to represent defendant. Upon assuming defendant's defense, she was provided with the Public Defender's complete file, including all initial discovery from the prosecution. Prior to the plea hearing, Sutnick met with defendant at the Passaic County Jail to discuss the case with him on "more than five" occasions, with each meeting lasting "[a]t least an hour[.]" She reviewed all discovery materials with defendant "[n]umerous times."
Sutnick testified that she discussed the following facts with defendant: there were eyewitnesses to the attack; he had been indicted with a co-defendant, who had pleaded guilty and agreed to testify against defendant; and that New Jersey law employs theories of accomplice liability. She and defendant also discussed the probable sentence of a murder conviction --life imprisonment with a thirty-year period of parole ineligibility.
Sutnick directly contradicted defendant's contention that he was not made aware of the fact that someone had moved Cruz until after conviction, testifying that she and defendant had discussed that aspect of the facts prior to his plea. Sutnick specifically recalled discussing with defendant Colon's act of moving Cruz's head and the possibility that an intervening action caused Cruz's death. Sutnick testified that she discussed the concept of causation with defendant, and, although she would not have used the phrase "but for, " she made it clear to defendant that his act of stomping on Cruz's head would be viewed as highly relevant to causing Cruz's death.
Sutnick believed an argument that bystanders possibly exacerbated the injury was "offensive" and unlikely to be unsuccessful. Sutnick explained:
[I]t was my opinion after going through the documents and after reading the witnesses' statements and part of our conversation is that that is not something in this particular case on these particular facts that in my opinion would be able to be successfully argued for a Jury.
I thought it would be a ridiculous argument to say that you stomped on somebody's head and then when somebody comes to render aid, you can argue to a Jury it's their fault for trying to help the person.
She stated further, "It was my judgment as a lawyer that that is not an argument that I could make successfully to a Jury."
Sutnick testified that when she counseled defendant to plead guilty to aggravated manslaughter, she viewed it as the most likely verdict from a trial. She testified that a conviction for reckless manslaughter was "a less probabl[e] result[.]" She confirmed that, regardless of Dr. Adams's report, she would have counseled defendant to enter the same guilty plea.
Sutnick described her and defendant's conversations regarding the plea terms as follows:
Well, this is the way that I explained it to my client. I talked to him about whenever you're making a decision to go to trial, you have to look at the risks and you have to see what the offer is. Because if they're offering a 30-year, you're going to trial.
But if the number goes down and down and down, it becomes a harder decision to make and something that you have to think about a little bit more. And when the numbers came down to less than the presumptive on an agg[ravated] man[slaughter] [charge], it was my opinion that that was a very reasonable plea offer given the facts of this case and given the good things about the case and the bad things about the case. And we spent a lot of time talking about that.
Sutnick testified that defendant was initially reluctant to plead guilty. He was aware that his mother was concerned and wanted him to plead guilty to aggravated manslaughter. However, Sutnick believed that the most significant factor in his decision to plead guilty was that the plea term was decreased from twenty-four years to nineteen years. Sutnick testified that defendant was fully aware of the ramifications of his plea and entered it voluntarily.
Prior to defendant's testimony at the PCR hearing, defense counsel moved for a new trial, arguing that Sutnick's testimony established she had deviated from the standards required of a criminal defense attorney. Judge DeLuccia denied defendant's motion, noting that Sutnick was "a highly skilled[, ] very dedicated[, ] and extremely competent attorney." The court observed that Sutnick testified "with a great deal of specific recollection" seven years after the plea was entered, and that the underlying attack was "savage" and could not "in any way even in the most charitable fashion be characterized as a fight that went too far[.]"
In his testimony, defendant admitted that Sutnick discussed the possibility of an intervening cause defense, but said Sutnick explained that it was "a but for case and basically just brushed it off." He stated he was "absolutely" willing to go to trial when the offered plea bargain was twenty-four years imprisonment. He testified that if he had Dr. Adams's report in 2000, he "absolutely" would not have pleaded guilty.
Defendant testified that his statements at the plea hearing, indicating that he was satisfied with his legal representation and the plea, were based on his then-limited understanding. He testified that, with his subsequent knowledge of causation law, he would have gone to trial and argued that he could only be convicted of reckless manslaughter. He testified that he accepted the plea bargain of nineteen years only after being advised that it was his best possible option.
When questioned by the court, defendant said that, at the time he was stomping on Cruz's skull, "there was not a thought running through [his] mind" but that, looking back, he was aware that Cruz could die as a result.
Judge DeLuccia denied defendant's PCR petition and set forth his reasons in a written decision. He found defendant's testimony at the PCR hearing that Sutnick failed to discuss the possibility of an intervening cause defense with him was not credible. Judge DeLuccia also found Sutnick's decision "not to pursue a defense of an intervening cause of death was not deficient. It did not fall short of prevailing professional norms at the time of [defendant's] plea. Even if counsel's performance was deemed deficient, the result at trial would not have been different." Judge DeLuccia determined that defendant failed to establish either prong of the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Defendant presents the following issues for our consideration in his appeal:
THE FAILURE OF COUNSEL TO INVESTIGATE THE EFFECT OF THE INTERVENING MOVEMENTS OF CRUZ BY A BYSTANDER ON THE CAUSE OF CRUZ'S DEATH AND THE FAILURE TO COMMUNICATE THE POSSIBILITY OF A DEFENSE TO PETITIONER BOTH ACTED TO DEPRIVE PETITIONER OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
Plaintiff filed a supplemental pro se brief in which he presents the following arguments:
COUNSEL FAILED TO PLACE THE STATE'S CASE TO CASE TO MEANINGFUL ADVERSARIAL TESTING.
THE DEFENDANT'S CREDIBILITY WOULD HAVE BEEN SUPPORTED WITH THE USE OF SUCH A STATEMENT BY A CERTIFIED FORENSIC PATHOLOGIST.
COUNSEL ADVISED THE DEFENDANT "LEGALLY" THE CAUSATION ISSUE WAS NOT A REAL ARGUMENT.
THE ADVENT OF DR. ADAM'S [SIC] OPINION AND THE CAUSATION ISSUE AS A WHOLE, MAY HAVE CHANGED THE OUTCOME OF THIS CASE.
After reviewing these arguments in light of the record and applicable legal principles, we are satisfied that none of them have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We add only the following comments.
In determining whether defendant has met the first prong of the Strickland/Fritz test we will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations See Estelle v Williams 425 U.S. 501 512 96 S.Ct. l6911697 48 L.Ed.2d 126 135 (1976); State v Buonadonna 122 N.J. 22 38 (1991) "As a general rule strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial'" State v Castagna 187 N.J. 293 314-15 (2006) (quoting Buonadonna supra 122 N.J. at 42)
Defendant savagely stomped on Cruz and left him for dead The autopsy revealed traumatic injury to the neck face and skull as well as significant swelling to the brain and damage to the spinal cord Sutnick's appraisal that it would be unsuccessful and even offensive to argue that death was caused by Colon's attempt to awaken Cruz was well-reasoned Rather than falling below the standard expected of counsel her decision not to pursue that defense was an exercise of competent professional judgment