September 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ISMAEL NIEVES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0299.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, 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 Messano and Ostrer.
Defendant Ismael Nieves appeals from the Law Division's May 19, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He presents the following points for our review:
POINT ONE — THE TRIAL COURT IMPROPERLY FOUND DEFENDANT'S CLAIMS TO BE PROCEDURALLY BARRED.
POINT TWO — THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING.
Also, in a pro se supplemental brief, defendant argues an evidentiary hearing was required, the court erred in characterizing his attorney's decisions as trial strategy, and in rejecting some of his claims as procedurally barred.
We affirm, but remand to the trial court for entry of a corrected judgment of conviction regarding the final charges.
A jury found defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1 and 2-6; fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). The jury acquitted defendant of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree robbery, N.J.S.A. 2C:15-1 and 2-6; and first-degree carjacking, N.J.S.A. 2C:15-2(a)(1) and 2-6.
We reviewed the salient facts in detail in our opinion affirming defendant's conviction and sentence on direct appeal. State v. Nieves, No. A-1061-07 (App. Div. July 1, 2009), certif. denied, 201 N.J. 145 (2009). Suffice it to say here that the State presented evidence that defendant assaulted Bernable Leon Nique after Nique agreed, late in the evening on October 7, 2004, to give a ride to defendant, as well as Johani Rodriguez, and defendant's uncle.
Defendant took the wheel of Nique's car, and drove to a liquor store and then to a housing project in Paterson. During the ride, defendant hit or smacked Nique, and threatened to shoot him. At one point, defendant searched Nique, and took $11 from him. When defendant attempted to force Nique into the trunk of the car, Nique grabbed a bottle of bleach from the trunk, threw it at defendant, and then escaped.
Nique told a police officer at the housing project what had happened. Another officer located defendant's apartment. The officer noted a bleach smell; saw bleach-soaked clothes in the hallway; and found defendant washing bleach off his face in his apartment. Defendant tried to flee and engaged in a physical struggle with the officer.
Two years later, when Nique and defendant were both incarcerated in Passaic County, defendant obtained from Nique a statement repudiating his prior version of events and exculpating defendant. The statement was notarized. However, Nique testified at trial that his signed statement was untrue; he signed it because he felt afraid; and there was no notary present when he signed it.
Rodriguez entered a plea to second-degree robbery. He testified for the State, confirming that defendant took control of Nique's car, threatened him, and assaulted him.
After defendant was convicted, the trial court imposed an extended twelve-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.
In our opinion on direct appeal, we rejected defendant's argument that the trial court committed plain error by failing to instruct the jury pursuant to State v. Kociolek, 23 N.J. 400, 421 (1957), regarding the statements Nique and Rodriguez attributed to defendant. We found that most of the witnesses' statements were "verbal acts admitted not to prove the truth of the statements, but to prove that the statement was made." Nieves, supra, slip op. at 11. We also found that the statements that defendant made to Nique during their incarceration in 2006 were admitted to establish that they were made and that Nique became afraid upon hearing them. Ibid. Therefore, "the complained of 'statements' [were] not the sort of statement that would require a Kociolek charge, but were simply the 'eyewitness accounts of the events which transpired.'" Id . at 12 (citations omitted). Consequently, we concluded the failure to give a Kociolek charge was not plain error, capable of producing an unjust result. Ibid. (citing R. 2:10-2 and State v. Adams, 194 N.J. 186, 206 (2008)).
We also rejected, on direct appeal, defendant's argument that the court committed plain error by failing to instruct the jury on the proper use of Rodriguez's guilty plea. The trial court did more than provide the standard charge on evaluating witness credibility. We noted:
The judge here went even further, instructing the jury that "[e]vidence of Johani Rodriguez's plea of guilty may be used only in determining the credibility or believability of this witness' testimony;" and the jury should carefully scrutinize Rodriguez's testimony based on his possible interest in the outcome of defendant's case.
[Nieves, supra, slip op. at 14.]
Defendant filed a PCR petition on April 21, 2010, alleging ineffective assistance of trial and appellate counsel. Defendant claimed that his trial attorney: failed to consult with him to review the evidence and prepare potential defenses for trial; improperly advised him not to testify on his own behalf; failed to request a Kociolek charge and to object to inadequate jury instructions on the credibility of a testifying co-defendant; and failed to object to numerous instances of prosecutorial misconduct. He alleged ineffective assistance of appellate counsel for failing to raise meritorious issues on appeal.
On May 19, 2011, the PCR court heard argument and issued a decision and order denying defendant's petition. In its written decision, the PCR court made the following findings: defendant acknowledged under oath that he had discussed the case many times with trial counsel over a two-year span; the State elicited Nique's criminal history on direct examination, depriving trial counsel the ability to impeach him; counsel's decision not to call defendant's uncle and a woman in the parking lot as witnesses was part of a well-reasoned trial strategy, since the uncle was severely intoxicated when the incident occurred, and the woman stated that defendant had threatened her with a gun several times; the initial trial court extensively questioned defendant on the record about his decision not to testify, and he personally, knowingly, intelligently, and voluntarily waived his right to testify.
The PCR court also determined that the failure to request proper jury instructions was addressed on direct appeal, and was not an issue to be considered on PCR. The claims relating to prosecutorial misconduct, which should have been raised on direct appeal, had no merit. The PCR court also found no evidence to indicate that defendant's appellate counsel was ineffective. The PCR court concluded defendant had not made a prima facie showing of ineffective assistance of counsel and was not entitled to an evidentiary hearing.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id . at 421.
We apply the well-settled two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984) (stating that a petitioner must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, "a petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." Ibid.; see also R. 3:22-10(e)(2) (stating court shall not hold evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative"). A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J.Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997).
Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). Likewise, when a defendant urges that an attorney was ineffective by failing to request certain jury instructions, the petitioner must show that the instructions were warranted. See State v. Chew, 179 N.J. 186, 215 (2004) (rejecting ineffective assistance claim where evidence did not support unrequested jury instruction).
We recognize the distinction between (1) defendant's claim his trial counsel was ineffective in failing to request a Kociolek charge, and an appropriate charge on a testifying co-defendant; and (2) his argument on direct appeal that the court committed plain error by failing to include those instructions, even absent trial counsel's request. Thus, the ineffective assistance claim was not adjudicated on direct appeal. Cf. R. 3:22-5.
However, defendant cannot satisfy either Strickland prong, for much the same reasoning we expressed on direct appeal. First, counsel was not professionally deficient in failing to request a Kociolek charge because, as we stated, none was compelled, given the limited evidentiary purpose of the statements Nique and Rodriguez attributed to defendant. Nor was defendant deficient in not objecting to the court's charge regarding Rodriguez's plea. As we explained, the court more than adequately addressed the issue.
Second, no prejudice resulted. Even if trial counsel requested additional instructions, there was no prejudice because, as we previously found, the instructions were not compelled. Moreover, the absence of the instructions was not "clearly capable of producing an unjust result." R. 2:10-2. Although Strickland applies a different standard of prejudice — in view of the evidence of guilt and the instructions the trial court did deliver — defendant has failed to make a prima facie showing of a "reasonable probability . . . the result . . . would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Reasonable probability is a "probability sufficient to undermine confidence in the outcome." Ibid.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed, but remanded to the trial court to amend the judgment of conviction to correct the errors we have noted, if the corrections have not already been made.