Opinion
DOCKET NO. A-3148-13T3
06-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESUS A. ARAIZA-AVILA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-11-1631. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
A jury convicted defendant of first-degree murder and second-degree aggravated assault. He was sentenced to thirty years without parole on the murder charge, a consecutive five-year term, eighty-five percent of which was to be served before defendant would be eligible for parole, and appropriate fines and penalties.
In his direct appeal, defendant argued the court committed several errors, which included a failure to instruct the jury sua sponte to disregard certain testimony given by a detective. In rejecting this argument, we noted the testimony was elicited by defense counsel, who did not object or request a cautionary instruction and continued to ask questions eliciting similar opinion testimony from the detective. We affirmed his convictions in an unpublished opinion, State v. Araiza-Nava-Avila, No. A-3621-09T3 (App. Div. Apr. 13, 2012), in which we noted that the evidence against defendant was "overwhelming." Id. at 17. The Supreme Court denied his petition for certification, 212 N.J. 432 (2012). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.
Defendant filed a PCR petition pro se on November 26, 2012. He identified no facts, legal arguments, or other claims as a basis for PCR. At oral argument, his PCR counsel referred to the fact that a brief, supported by exhibits and transcripts were submitted to the court. Counsel argued that trial counsel was ineffective because she failed to provide a translated copy of the discovery to defendant. He acknowledged that an interpreter reviewed the discovery with defendant but contended that a translation of all documents would have the superior advantage of permitting defendant to review documents at any time without the presence of an interpreter. Counsel submitted that the failure to provide defendant with that advantage constituted ineffective assistance of counsel.
The transcripts of the trial and sentencing have been submitted to the court. The brief and supporting exhibits have not been included in the record before us. --------
The State countered that defendant failed to provide a certification or affidavit stating he had requested counsel to provide a translated copy of the discovery and the request was denied. The State also argued that an interpreter reviewed all discovery with defendant and was present throughout the trial.
The PCR court denied defendant's petition and set forth its reasons in a written decision. In his appeal, defendant presents one argument, that the matter must be remanded for an evidentiary hearing because he established a prima facie case of trial counsel's ineffectiveness based upon her failure to provide defendant with a translated copy of his discovery. We are unpersuaded by this argument and affirm.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).
In order to be entitled to an evidentiary hearing, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant argues that he did not rely upon a bald assertion because "his claim — as cogently presented by PCR counsel . . . was cognizable before the PCR court." However, defendant plainly did not satisfy the requirement of Rule 3:22-10(c), which provides that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." See Cummings, supra, 321 N.J. Super. at 170-71. In the absence of such factual support for his claim, defendant has not presented a prima facie case of ineffective assistance and was not entitled to an evidentiary hearing. R. 3:22-10(b) ("A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ."). Accord State v. Preciose, 129 N.J. 451, 462-63 (1992).
Defendant filed a pro se supplemental brief in which he argued, "Post-conviction counsel was ineffective for not raising ineffective assistance of trial counsel [and] for not requesting a cautionary instruction." As the State notes, this argument, which was not presented to the trial court, is not properly raised on appeal. Id. at 460. However, we elect to dispose of this argument nonetheless. This is an argument that is either subsumed in an argument that was raised on appeal or could have been raised on direct appeal and, therefore, is procedurally barred. R. 3:22-4 and -5.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION