Opinion
DOCKET NO. A-5490-10T1
03-07-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY CHAPARRO, Defendant-Appellant.
Philip Lago argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Lago, Designated Counsel, on the briefs). Sara B. Liebman argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief; Kimberly Donnelly, Law Intern, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Hayden and Lisa.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-01-0038.
Philip Lago argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Lago, Designated Counsel, on the briefs).
Sara B. Liebman argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief; Kimberly Donnelly, Law Intern, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant is serving an aggregate sentence of life plus ten years with a thirty-three-and-one-half-year parole disqualifier for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), and second-degree robbery, N.J.S.A. 2C:15-1. We affirmed his conviction but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Chaparro, No. A-6255-03 (App. Div. April 10, 2006). The Supreme Court denied defendant's petition for certification. State v. Chaparro, 188 N.J. 353 (2006). On the Natale remand, the court reimposed the same sentence.
Defendant was also sentenced to ten years for second-degree sexual assault, N.J.S.A. 2C:14-2c(1), concurrent to the aggravated sexual assault; and counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, and criminal sexual contact, N.J.S.A. 2C:14-3b, of which defendant was also convicted, were merged with the aggravated sexual assault.
Defendant filed a petition for post-conviction relief (PCR). By way of background, there was no dispute at defendant's trial that the victim had been sexually assaulted and robbed. The sole issue was the reliability of her identification of defendant. No forensic evidence connected defendant with the crime. Other than the victim's identification, no evidence placed him at the scene. He made no statements. In his PCR petition, defendant alleged, among other things, that his trial counsel was deficient for failing to request a Wade hearing, failing to conduct a proper investigation, failing to present certain evidence, and failing to subpoena and call a particular witness. Defendant contended that had his counsel done these things the reliability of the victim's identification would have been undermined and would have raised reasonable doubt in the jurors' minds about his guilt.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 18 L. Ed. 2d 1149 (1967).
In the PCR proceeding, defendant requested a new trial or, alternatively, an evidentiary hearing to further develop the record of his trial counsel's alleged deficiencies. On January 19, 2011, the PCR judge (who had not been the trial judge) issued a twenty-seven page written opinion and an order denying defendant's petition and declining to grant an evidentiary hearing. Defendant appeals that order and also argues that his sentence is illegal, as a result of which he must be resentenced.
Our review of the record persuades us that defendant made a sufficient prima facie showing of ineffective assistance of counsel to entitle him to an evidentiary hearing, and the PCR judge mistakenly exercised his discretion in denying such a hearing. Accordingly, we remand for an evidentiary hearing.
We also agree with defendant that his sentence is not authorized by the Code of Criminal Justice, and is therefore illegal. The State concedes that the sentence is illegal. Therefore, if, after the evidentiary hearing, post-conviction relief is not granted, we direct that defendant be resentenced.
I.
We repeat here the facts as set forth in our previous opinion:
The following facts were established at trial. On September 4, 2002, F.P. left her home in Elizabeth around 9:50 a.m. to catch a bus to Union County College. In route to the bus stop, while crossing a pedestrian railroad bridge, F.P. was approached from behind by a man she later identified as defendant. Defendant told F.P. to keep walking and she complied. After grabbing her by the neck and telling her not to move, "because I have a knife," defendant pushed F.P. to the ground and began touching her buttocks and removing her bra. Defendant took from F.P.'s person her earrings, necklaces and two rings. He began touching and kissing her breasts.
As a vehicle approached, defendant dragged F.P. to the other side of the bridge where he forced her to the ground, took his penis out of his pants and put it in her mouth. When F.P. told him that she did not "know how to do it," he slapped her in the face. He then held her by the ears and put his penis back in her mouth. F.P. kept her eyes open in order to be able to see defendant. After approximately two to three minutes, defendant removed his penis from F.P.'s mouth and began to masturbate. He ejaculated on her left arm. Defendant then
took F.P. by the arm and walked with her to the end of the bridge where he wiped the semen off of her arm with his shirt. As they walked further, defendant told F.P. to continue because he needed to retrieve something he had left on the bridge. When defendant went back toward the bridge, F.P. ran to a nearby house.
After F.P. explained what happened to construction workers at the house, they encouraged her to call the police. She called the police, who told her to go to a nearby supermarket. She went to the supermarket, accompanied by two of the workers, where she met Elizabeth Police Officers Robert Brennan and Edward Anaya. Upon speaking with F.P., the officers realized that she had been sexually assaulted. F.P. described defendant as a twenty-five to thirty-year-old "light skinned Hispanic male, approximately five nine, five ten" who was wearing gray khaki shorts, a dark blue baseball hat and a white t-shirt. The officers obtained a description of defendant and transmitted it over the police radio.
F.P. got into the patrol unit and she and the officers searched the streets for the suspect. F.P. indicated that she absolutely would be able to identify defendant if she saw him. They searched for the suspect for ten or twenty minutes with the assistance of other units, but were unable to find him. They then went to the bridge, where F.P. further explained the attack. F.P. expanded her description, stating that defendant was five-eight to five-nine, had dark brown or black hair, and wore cross-training sport type sneakers. When Brennan told F.P. that he was six feet tall and asked her how tall the suspect was in comparison to him, she responded that the suspect was "a few inches shorter." Brennan then took F.P. to Overlook Hospital where
she was examined by sexual assault nurse Joanne Devine. Devine noted that F.P. had a hematoma on her eye, marks on her neck, bruises on both breasts, a scrape on her knee, and scrapes, scratches, and bruises down her arm. Devine swabbed F.P.'s arm and lip and mouth area. She also examined F.P.'s left arm with a light that reveals body fluids, but she was unable to find any.
F.P. also gave a statement to Detective David DeRosa in which she described defendant's hair as brushed back. She gave defendant's height at five-seven to five-eight and his weight between 130 and 140 pounds. Detective DeRosa, his partner, Detective Rudy Vines, and F.P. returned to the scene where F.P. walked the detectives through the assault. The next day, F.P. went to the Union County Prosecutor's Office to view photographs for the purpose of identifying her attacker. Detective DeRosa arranged for F.P. to meet with a sketch artist, on September 11, 2002, who drew a composite sketch. The sketch was posted around the area and published in the local newspapers. At trial, the parties stipulated that Robert Lopez of Perth Amboy saw the sketch in the Home News Tribune and thought it resembled defendant and so reported it to the police.
On September 26, 2002, Detective Paul Pasternak of the Elizabeth Police Department administered a photo array to F.P. Pasternak had no knowledge of the case or the suspect when he conducted the photo array. F.P. was instructed to look at the six photos of similar looking people one at a time, from which she made an identification. F.P. indicated that she was sure that the individual in the picture was her attacker. At trial, F.P. identified defendant as her attacker, stating that she had no doubt it was he. F.P. indicated that she sometimes wears glasses for viewing long
distances but not for short distances. The parties stipulated that at the time of his arrest defendant reported that he was six feet and one inch tall, he weighed 215 pounds, and that he was forty-eight years old at the time F.P. was attacked.
Alcimede Cuello testified that on September 4, 2002, defendant was working with him in Pennsylvania from 8:00 a.m. until 1:00 p.m. Cuello indicated that he picked defendant up from his home in Perth Amboy at 6:00 a.m. that same day for work. Defendant admitted into evidence a document prepared by Cuello showing the work schedule of defendant to include the day in question. Cuello testified that he paid defendant ten dollars per hour for his work and that defendant had worked sixty-three hours for that pay period. Defendant produced a copy of a $420 check written by Cuello, made payable to "cash," which Cuello testified he gave to defendant. Cuello testified that the $420 was payment for the 63 hours worked. No explanation was given for the discrepancy between the hours worked and the wages paid.
Blanca Gonzales, defendant's sister-in-law, testified that defendant was living with her at the time of the assault. Gonzales testified that she saw defendant leave her home at 6:00 a.m. on the date of the assault. Gonzales also testified that she had never seen defendant with straight, slicked-back black hair. Defense counsel's summation was essentially comprised of the argument that the victim misidentified defendant. In his opening statement, he referred to defendant, who was sitting in the courtroom, as having curly, salt and pepper hair and big ears.
[Chaparro, supra, slip op. at 2-7 (footnotes omitted).]
II.
In the brief filed by his appellate counsel, defendant argues:
POINT I
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective in failing to investigate and to call Miguel Muyulema to testify at trial.POINT II
B. Counsel failed to file a motion to challenge the identification of defendant.
C. Counsel was ineffective in failing to present evidence that defendant endorsed the employment check produced by Cuello.
D. Counsel was ineffective in failing to produce the arrest photo of defendant at trial.
E. Counsel was ineffective in failing to investigate and present evidence showing Herbierto [sic] Estrada had committed the assault.
THE LOWER COURT ORDER MUST BE REVERSED AND THE MATTER REMANDED SO THAT THE COURT MAY CLARIFY DEFENDANT'S SENTENCE AND ORDER THE DEPARTMENT OF CORRECTIONS TO CORRECT ITS RECORDS ACCORDINGLY.
POINT III
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
POINT IV
THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.
POINT V
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT VI
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
In a supplemental pro se brief, defendant further argues:
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT ALL TIME, FROM THE TIME OF ARREST UNTIL THE TIME OF HIS INDICTMENT.
POINT II
DEFENSE COUNSEL FAILED TO MOVE FOR A MOTION TO DISMISS THE INDICTMENT.
POINT III
DEFENSE COUNSEL REFUSED TO HOLD AN EVIDENTIARY HEARING.
POINT IV
DEFENSE ATTORNEY ALLOWED THE PROSECUTION TO PRESENT PERJURED TESTIMONY AND TAINTED PHOTO ARRAY INTO EVIDENCE AND IMPROPER REMARKS TO THE JURY.
POINT V
DEFENSE COUNSEL'S FAILURE TO FILE MOTION TO SUPPRESS EVIDENCE DENIED DEFENDANT A FAIR TRIAL.
POINT VI
THE PROSECUTOR VIOLATED THE DEFENDANT'S RIGHTS TO A FAIR TRIAL BY RELYING ON FACTS NOT PROVEN AT TRIAL AND VOUCHING FOR THE CREDIBILITY OF THE VICTIM.
POINT VII
PROSECUTING ATTORNEY VIOLATED THE RULES OF PROFESSIONAL ETHICS AND COMMITTED A PROSECUTORIAL MISCONDUCT BY USING A TAINTED PHOTO LINE-UP.
POINT VIII
THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT DURING IN-COURT IDENTIFICATION BY AGAIN SHOWING THE VICTIM A TAINTED PHOTO ARRAY POINTING AT DEFENDANT'S PHOTO ON THE ARRAY, TO ELICIT A STRAIGHT ANSWER TO HIS QUESTIONS, AND ELICITING VICTIM'S PERJURED TESTIMONY.
POINT IX
THE TRIAL JUDGE COMMITTED JUDICIAL MISCONDUCT BY ENGAGING IN EX-PARTE COMMUNICATIONS AND ALLOWING SUPPRESSION OF ONLY EVIDENCE IN CONTROVERSY AND OF PRIMA FACIE VALUE THAT NEGLECTED DEFENDANTS GUILT, DENYING DEFENDANT A FAIR TRIAL.
POINT X
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED DEFENDANT'S STATE AND CONSTITUTIONAL RIGHTS BY FAILING TO MERGE ROBBERY CHARGE, SENTENCING DEFENDANT UNDER N.E.R.A. AND ENHANCING DEFENDANT'S SENTENCE.
POINT XI
IT WAS REVERSIBLE (PLAIN ERROR) FOR THE PCR COURT TO DENY THE DEFENDANT'S POST CONVICTION RELIEF PETITION AND WADE HEARING.
POINT XII
DEFENDANT'S POST-CONVICTION ATTORNEY WAS INEFFECTIVE BY FAILING TO ARGUE ALL OF DEFENDANT'S ARGUMENTS DURING PCR HEARING.
POINT XIII
THE TRIAL COURT ERRED IN IMPROPERLY BARRING DEFENDANT FROM INTRODUCING EVIDENCE OF THIRD PARTY GUILT.
While this appeal was pending, defendant filed a pro se motion seeking a remand for resentencing, based upon his contention that his sentence is illegal. We dispose of that motion (M-001169-12) in this opinion.
III.
As to the PCR issues, we focus on the five contentions raised under POINT I of the brief filed by defendant's appellate counsel. Before addressing each of those points, we set forth the well established principles that guide our review.
To be entitled to relief for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). The two-pronged test laid down in Strickland was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under this test, the court first looks at whether counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . 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 issue is whether there exists "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. A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Ibid.
"The first prong is satisfied by a showing that counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all of the circumstances of the case." State v. Chew, 179 N.J. 186, 203 (2004) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Consequently, there is "a strong presumption that counsel's conduct falls within the wide range of professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must demonstrate that counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Courts should "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Although strategic decisions are entitled to substantial judicial deference, such "decisions made after less than complete investigation are subject to closer scrutiny." State v. Savage, 120 N.J. 594, 617-18 (1990). "[C]ounsel has a duty to make "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 618 (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
Because ineffective assistance of counsel claims often involve evidence and allegations that lie outside the trial record, they are not appropriate for consideration on direct appeal but are left for collateral review in a PCR proceeding. State v. Preciose, 129 N.J. 451, 460 (1992). For this reason, ineffective assistance claims require evidentiary hearings more often than other claims because they often involve facts outside the record and the attorney's testimony may be required. Id. at 462; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Thus, evidentiary hearings should be granted if the defendant has presented a prima facie case of ineffective assistance under the Strickland test. Preciose, supra, 129 N.J. at 462. To make the requisite prima facie showing, a defendant must present facts that would establish entitlement to relief. Id. at 459. The PCR court must view the facts in the light most favorable to the defendant in determining whether an evidentiary hearing is warranted. Id. at 462-63. Of course, the defendant must do more than make bald assertions to establish a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). It is against this standard that a reviewing court evaluates the PCR court's exercise of discretion in denying a request for an evidentiary hearing.
In Strickland, the United States Supreme Court summarized the overriding principle to be observed in cases such as the one before us: "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93. In adopting the Strickland test, the New Jersey Supreme Court echoed the same sentiment, holding that "a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to [the] defendant's conviction, the constitutional right will have been violated." Fritz, supra, 105 N.J. at 58.
The need for our close adherence to these principles is heightened in a case such as this one, in which the victim's uncorroborated identification of defendant was the sole issue at trial and resulted in his conviction. In its recent landmark decision, our Supreme Court acknowledged that multiple studies have "revealed a troubling lack of reliability in eye-witness identifications." State v. Henderson, 208 N.J. 208, 218 (2011). The extensive record developed in that case convinced the Court "that the possibility of mistaken identification is real. Indeed, it is now widely known that eye-witness misidentification is the leading cause of wrongful convictions across the country." Ibid.
IV.
A.
We first address defendant's argument that his trial counsel was deficient for failing to file a Wade motion. In his written decision, the PCR judge thoroughly addressed this issue, devoting about nine pages of the opinion to it. The judge found that, based upon the trial record, there was no evidence that the out-of-court identification procedure was impermissibly suggestive. The judge therefore found that, because a Wade motion would have been futile, trial counsel was not deficient for failing to file such a motion. Had a Wade motion been filed, it would have been denied, and the out-of-court identification would have ultimately been admissible at trial. The PCR judge also found no impropriety in the in-court identification. We agree with the PCR judge's analysis on this issue and conclude, substantially for the reasons he expressed, that trial counsel's failure to file a Wade motion provides no basis for post-conviction relief.
B.
We next address trial counsel's failure to call Miguel Muyulema as a witness. Muyulema was one of the construction workers the victim encountered in the immediate aftermath of the attack. The perpetrator was still within view when the victim encountered Muyulema, and she pointed out the perpetrator to him. He is the only eyewitness who saw the perpetrator. If the testimony of this independent eyewitness could serve to undermine the reliability of the victim's identification of defendant, it would be crucial evidence.
On the morning of September 5, 2002, twenty-four hours after the crime, Muyulema gave a written, sworn statement to Detective DeRosa. He stated that the victim came to him and requested his help, that she was upset and crying, that she said a man had violated her and had taken her rings and money, and that "[s]he pointed to a man who was walking away and stated he's the one." He said he would not be able to identify the man's face because he only saw him from behind. When asked to describe him, Muyulema said, "White shirt, baggy khaki shorts, medium build, 5'7" - 5'8"." Muyulema gave an Elizabeth address and presumably would have been available had either side called him as a witness. His sworn statement was part of defendant's PCR submission.
The size of the perpetrator was a critical issue at trial and provided a major source of defendant's argument that the victim was mistaken in her identification.
The victim testified that she is five-feet, four-inches tall. She said her attacker was taller than she was. Elizabeth police officer Robert Brennan arrived at the scene shortly after the attack. He testified that the victim described her attacker as "approximately five nine, five ten," and described his clothing as including grey khaki shorts and a white "t"-shirt. When the judge asked for clarification about height and weight, specifically asking Brennan whether he "remember[ed] what she told [him] about height and weight," Brennan replied: "Although I don't have it recorded here, your Honor, I remember that she said he was approximately five eight to five nine, not very tall, but just sort of an average height, nothing distinctive regarding the height." Brennan continued by explaining that he is "six foot one" and, as he stood next to the victim, he asked her to describe the perpetrator's height in relation to his height, to which the victim said, "I don't think he's as tall as you are. I think he was a few inches shorter than you."
In the factual recitation in our prior opinion, we stated that Brennan said he was six feet tall. Ante at 5.
On the afternoon of the attack, after the victim was taken to the hospital for a rape kit, she accompanied Detective DeRosa to the Elizabeth police station to give a formal statement. In this recorded statement from the victim (as opposed to Brennan's varying recollections which were not reduced to a report), the victim stated that her attacker was five-feet, seven-inches to five-feet, eight-inches. She also said in her statement that the attacker weighed between 130 and 140 pounds and was wearing a white short-sleeve t-shirt and khaki shorts. She also acknowledged telling the police sketch artist, with whom she met one week after the attack, that the perpetrator was five-feet, seven-inches tall, weighed about 130 pounds, and was between twenty-five and thirty years old.
Twenty-two days after the attack, on September 26, 2002, the victim picked defendant's photograph out of a photo array. He was arrested on September 30, 2002. Defendant's height, weight, and age characteristics were not as described by the victim. Indeed, defendant is six-feet, one-inch tall, and it was stipulated that when arrested defendant weighed 215 pounds and was forty-eight years old.
The parties stipulated, and the trial judge announced to the jury, that defendant was arrested on September 30, 2002. We will refer to that date of arrest throughout this opinion because that is what is in the trial record. We note, however, that the judgment of conviction reflects an arrest date of September 26, 2002 and calculates jail credits from that date. We trust that this discrepancy can be resolved in the remand proceedings.
Trial counsel's failure to call Muyulema as a witness was not a strategic decision. In his PCR certification, trial counsel said he assumed the State would call Muyulema as a fresh complaint witness and that he prepared for cross-examination of him. He continued that "it never occurred to [him] that the prosecutor might choose not to call Mr. Muyulema as a witness at all. By the time [he] realized that the State was not calling Mr. Muyulema as a witness, it was too late to subpoena Mr. Muyulema to testify for the defense."
Thus, it is obvious that trial counsel was keenly aware of the importance of Muyulema's testimony. His failure to subpoena him and produce him as a defense witness was a miscalculation. The State, of course, did not need a fresh complaint witness. There was no dispute that the sexual assault occurred. The only issue at trial was identification of the perpetrator. Indeed, defendant's trial counsel revealed his trial strategy when he began his opening statement to the jury with the following: "What happened to this young woman was horrible, was horrible. Anthony Chaparro had nothing to do with it, nothing."
During the victim's trial testimony, the prosecutor did not ask her whether she pointed out the perpetrator to one of the construction workers. Defense counsel did not ask her any questions along those lines either. When Officer Brennan testified, defense counsel attempted during cross-examination to bring up Muyulema, but Brennan correctly said it was not he who spoke with the witness at the scene and he thought the detectives who conducted the follow-up investigation later spoke with the party about whom defense counsel was inquiring. Nothing more was said about Muyulema throughout the trial.
At the PCR hearing, the prosecutor argued that defendant's trial counsel might well have refrained from calling Muyulema as a strategic decision "because he would have talked about the victim crying and sobbing and frantically running down the hill and it would have hurt this man here, his allegations - - - his defense more by saying how quickly the victim reported it and how sincere she was." The State does not repeat that argument in its appellate brief. That is understandable for various reasons. First, trial counsel certified that he wanted Muyulema to testify and would have subpoenaed him if he thought the State was not going to call him. Second, there was plenty of testimony, all of which could have been well anticipated, that the victim was extremely distraught in the immediate aftermath of this brutal attack. Muyulema's testimony would have added nothing further in that regard. Third, and most importantly, there was no need for fresh complaint evidence because the defense strategy was to acknowledge from the outset that the sexual assault occurred and was horrible, but the only issue in the case was identity of the perpetrator.
In dismissing this issue as insignificant, the PCR judge acknowledged that Muyulema said in his statement to the police that the perpetrator was of medium build and five feet, seven inches to five feet, eight inches tall. However, the judge did not mention that Muyulema also described the clothing the perpetrator was wearing consistent with the description of it given by the victim. Then, citing the State's brief, the judge concluded that the construction site where Muyulema was working was "at least 200 feet" from the elevated bridge where the assault occurred, as a result of which Muyulema's estimate of the perpetrator's height would have added little to the jury's consideration.
We find this analysis flawed for two reasons. First, the 200-foot estimate is not based on competent evidence. We do not know what the prosecutor represented in his brief about distances between the construction site and the bridge. Regardless of what the representation was, and regardless of its accuracy, that does not define the distance between the perpetrator and Muyulema when the observation was made. Second, the consistent description of the clothing provides indicia of accuracy and consistency with the size description related by the victim.
If the shoe were on the other foot, and if the person identified by the victim based on his facial features was of a size consistent with that related by the victim, Muyulema would have indeed been a very helpful corroborative witness for the State. Conversely, as it turned out with a significantly "oversized" defendant, Muyulema would have been a very helpful witness for the defense. Further exploration of how significant Muyulema's testimony might have been is warranted at an evidentiary hearing.
C.
We are of the same view with respect to the employment check produced by Alcimede Cuello. Cuello was an alibi witness. He testified that at 6:00 a.m. on the day of the crime he picked up defendant at his home in Perth Amboy and transported him to their work site in Pennsylvania, where defendant worked along with him until 1:00 p.m., after which the men returned to New Jersey. Cuello produced a handwritten work record covering about a two-week period itemizing the hours purportedly worked by defendant. This included September 4, 2002.
Defendant's sister-in-law, Blanca Lydia Gonzales, corroborated the alibi. She testified that defendant was living at her home on Pulaski Avenue in Perth Amboy at the time of the crime. She said defendant left for work at 6:00 a.m. on September 4, 2002, when a man picked him up in front of the house.
Cuello produced a check, dated September 20, 2002, payable to cash for $420, which he said represented payment to defendant for the hours he worked over the two-week period reflected in the work record. Cuello said defendant's hourly rate was $10. However, when the prosecutor, while questioning Cuello, tallied up the entries in the work record, it revealed that defendant worked sixty-three hours during those weeks. Cuello was unable to explain the discrepancy.
It is possible that the alibi might have survived the discrepancy between the hours worked and the amount of the check. However, the alibi received a fatal blow when the prosecutor pointed out during summation that the check (which was in evidence) was endorsed by someone named Antonio Nieves, with an address on Catalpa Avenue in Perth Amboy.
In his verified PCR petition, defendant certified that he "endorsed the check with his correct name, which was 'Antonio C. Nieves.'" He further certified that he "told police that this was his name. It appeared on all of his papers, including his birth certificate, social security card, driver's license, and military separation papers." Because a PCR court must view factual evidence submitted by a defendant in the light most favorable to the defendant, we must accept as true that defendant is indeed Antonio Nieves, and that he endorsed the check under his correct name.
These certified statements are contained in the factual portion of the PCR brief filed by defendant's attorney. That brief was filed simultaneously with defendant's amended verified PCR petition, which certified by incorporation the truthfulness of the statement of facts contained in the brief. Therefore, this is a certified factual statement that must be deemed true for purposes of evaluating whether defendant made a sufficient prima facie showing to warrant an evidentiary hearing.
Defendant also included in his PCR submission an abstract issued on July 8, 2009 by the New Jersey Motor Vehicle Commission for an individual named Antonio C. Nieves at the Catalpa Avenue address in Perth Amboy. It certified that the individual's current status was in good standing and he had no history of suspensions. It further certified that the individual's license had expired on February 28, 2005, and that he had been in an accident on September 15, 2002. This document does not prove that defendant is in fact Antonio Nieves. Indeed, the Catalpa Avenue address is not the same as the Pulaski Avenue address in Perth Amboy given by defendant's sister-in-law, Ms. Gonzales.
Defendant argues that his trial counsel was deficient for not presenting evidence to demonstrate that he is in fact Antonio Nieves, and therefore it was he who endorsed the check for wages earned during the time period covering the date and time of the crime.
The PCR judge found this assertion insignificant, concluding that, in light of the discrepancy between the $420 and the sixty-three hours worked (according to the handwritten work record), "it is unlikely that whether petitioner endorsed the check or not would have had any bearing on the outcome of the trial."
We do not believe that a proper assessment of this issue can be made on the record as it now stands. If defendant's real name is in fact Antonio Nieves, evidence to that effect might well have induced the jury to view the alibi as plausible. We recognize, of course, that even if defendant's real name is Antonio Nieves, the discrepancies between the amount of the check and the hours reflected in the work record, as well as the discrepancy in the two Perth Amboy addresses remain. An evidentiary hearing would be the appropriate forum to determine initially whether defendant is in fact Antonio Nieves, and, if so, whether any plausible explanations for the two discrepancies we mentioned exist. Factfinding on these points would enable the PCR court to make an informed assessment of whether trial counsel was deficient in this regard, and whether the deficiency, either alone or combined with any other deficiencies found, had the reasonable probability of changing the result.
D.
We next consider defendant's contention that his trial counsel was deficient for failing to produce his arrest photo at trial. This issue pertains to whether that photo depicted any kind of sore, birthmark, or other marking on defendant's lip. In describing her attacker, the victim said he had a cold sore on his lower lip.
Brennan testified, using his recollection, that the victim "stated that [the perpetrator] had a sore on his right lower lip area, some sort of a sore or marking."
When Detective DeRosa testified, the prosecutor asked whether the perpetrator had a cold sore on his mouth when he was arrested. DeRosa replied, "It's not a cold sore." The prosecutor then asked this more pointed question, and received this response:
Q When you viewed him after he was arrested, did he have the cold sore or mark?
A It's a - - appears to be a birthmark, not a cold sore. I was thrown off with the cold sore. It's a birthmark, some type of mark on his inner lip in between his mouth.
Defense counsel then questioned DeRosa on the point and presented him with a photograph, which was subsequently placed in evidence as S-16. That photograph was not the arrest photo taken on the date of defendant's arrest, September 30, 2002. It was a photograph taken one week later, on October 7, 2002, when defendant was admitted to the Union County jail. These questions and answers ensued:
Q Detective, you said, for the first time today, he has a birthmark on his mouth?
A I said it appeared to be birthmark.
Q When he was arrested?
A Yes.
Q Did you document that, in any fashion?
A It's in the photograph.
Q Which photograph is that?
A If you look at the photograph you will be able to see it.
THE COURT: The one on the date he was arrested. That one?
THE WITNESS: Yes.
THE COURT: Should be number 16.
Q Us [sic] are saying this photograph has a birthmark on his lip?
A May I see? This photograph is difficult to tell, but at the time of the job, at the time of the arrest he did have it on his inside of his lip, there.
Q There is no mark, of any kind, on his mouth. Is there, Detective?
A I can't see it in that photograph.
Q You are saying on the day you arrested him he had a mark on his mouth. Right?
A Correct.
Q Right in the spot where the perpetrator had it. Right?
A Actually, it was on the opposite side.
Q Okay. You say today that you saw a mark on his mouth when you arrested him?
A Yes, I did.
Q That matched with what the perpetrator had?
A Yes.
Q Did you write that in your report anywhere?
A I don't believe I did.
Q Did you take any pictures of that mark?
A During the arrest, the arrest photograph.
Q You are talking about the photograph right here?
A There is - - that is not the original booking photograph, sir.
THE COURT: All right. Do we have the original booking photograph in Elizabeth Headquarters?
THE WITNESS: I don't know, your Honor, because that is with a different division. That is the ID Division.
THE COURT: You check it tonight. If it's not within your purview make query of whatever Division it's in.
When DeRosa's testimony concluded, the judge asked both counsel whether they "want him back tomorrow, as I instructed him, or not." Both counsel declined.
Defendant argues that his trial counsel was deficient for not insisting that the arrest photo be produced at trial. DeRosa told the jury that defendant had a mark of some sort on his lip, as described, at least generally, by the victim, when he was arrested on September 30, 2002. He also told the jury that the arrest photo would depict that mark. DeRosa conceded that the October 7, 2002 photo, which he viewed during his testimony and which was placed in evidence, did not show any such mark on defendant's lip. The appellate record does not contain a copy of the arrest photo. If indeed that photo does not show a sore or other mark on defendant's lip, it would directly contradict DeRosa's testimony and would have exculpatory value.
In the view of the PCR judge, this was insignificant because "if the mark was in fact a cold sore, as the victim claimed, it could have disappeared shortly after the offense." In the State's appellate brief, the prosecutor simply reiterates this same point. For the reasons we have stated, we give more weight to this asserted deficiency.
The jury was left with testimony from the case detective, who took a recorded statement from the victim the day of the crime, who was involved in defendant's arrest and physically observed him on the date of his arrest twenty-six days after the crime, that defendant at the time of his arrest had a cold sore or mark consistent with the description given by the victim on the day of the crime. That was important corroborative evidence bearing on identification. If in fact the intervening arrest photo refuted it, it would have had a significant exculpatory effect. This can be further developed at an evidentiary hearing.
E.
Finally, defendant asserts that his trial counsel was deficient for failing to investigate and present evidence demonstrating the possibility of third-party guilt on the part of one Heriberto Estrada. Defendant certified that, while in the Union County jail, before he received the discovery materials involving this case, another inmate, Estrada, described sex crimes he had committed. He described a sexual assault he committed on a young woman in Elizabeth for which he was not apprehended and he provided details of the crime. When defendant subsequently received his discovery materials and learned the details of the allegations against him, he contends they match the description of the crime Estrada described to him. According to defendant, Estrada is about the size and age of the perpetrator described by the victim and he resembles the description given by the victim, including the presence of a blister on his lower lip.
In his certification, defendant went on to say that Estrada confessed to "other" sex offenses committed with his cousin. As we read this, the crimes allegedly described by Estrada as being committed with his cousin did not include the description of the crime defendant asserts matches that committed in this case. The brief filed by defendant's appellate counsel states at page 39 that, according to defendant, "Estrada admitted that he and a cousin had sexually assaulted a young woman in Elizabeth and had not been identified or apprehended; defendant asserts that Estrada was describing the assault for which defendant was convicted." We believe that is a misreading of defendant's certified factual statement, in which he distinguishes between Estrada's description of this crime and "other" crimes Estrada allegedly committed with his cousin.
Defendant told his trial counsel about Estrada and asked him to investigate. According to defendant, his trial counsel said he had previously represented Estrada and declined to investigate. Defendant's trial counsel certified in the PCR proceeding that he recalled defendant discussing the possibility of a third-party guilt issue regarding Estrada. Trial counsel also acknowledged that he had previously represented Estrada briefly, but had no recollection of whether he had discussed that representation with defendant. He had no recollection of any specific discussions with defendant about Estrada and the possibility that he may have been the perpetrator in this case.
At an evidentiary hearing, more information can be fleshed out regarding this issue. Of course, when presenting the jury with the possibility of third-party guilt, a defendant does not have to prove that the third party committed the crime, but may, under appropriate circumstances, be permitted to suggest a plausible possibility of such, in an effort to raise a reasonable doubt of the defendant's guilt. State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873, (1960); see also State v. Cotto, 182 N.J. 316, 332-34 (2005).
In our view, trial counsel may have been deficient for not investigating Estrada. We cannot say from the present record what such an investigation would have revealed and whether it would have produced any admissible trial evidence that might have been helpful to the defense. However, viewing defendant's certified factual statement most favorably to him, the record contains enough to require further exploration at an evidentiary hearing.
F.
In summary, we have no quarrel with the trial judge's conclusion, upon denying defendant's new trial motion, that the trial evidence was sufficient to prove defendant's guilt beyond a reasonable doubt. Indeed, a panel of this court affirmed that decision. No corroboration or forensic evidence is necessary to sustain a conviction. The identification of defendant by the victim, whose credibility the jury had the opportunity to assess, was sufficient.
On this appeal, we are not revisiting that issue. The issue here is whether trial counsel was deficient for failing to present other evidence that had the capacity to change the result. Because the answer to this question cannot be determined from the trial record, and because we are persuaded that defendant has made an adequate prima facie showing, the determination should be made through an evidentiary hearing. At that hearing, defendant can present evidence on any of the points we have discussed, as well as any other points that he may develop.
V.
Finally, we address defendant's sentence. If, after the evidentiary hearing we have ordered, post-conviction relief is not granted and defendant's conviction remains in effect, he must be resentenced.
The impropriety in defendant's sentence pertains only to count one, aggravated sexual assault. The trial judge imposed an extended term sentence of life imprisonment with a twenty-five year parole disqualifier. Referring to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the judge further stated that defendant must serve eighty-five percent of the maximum ordinary term sentence of twenty years, namely seventeen years, without parole. Under N.J.S.A. 2C:43-7.2b, if the NERA parole disqualifier is less than any other mandatory parole disqualifier, the latter takes precedence. Thus, because the court sentenced defendant to an extended base term of life imprisonment, a mandatory parole disqualifier of twenty-five years was also imposed pursuant to N.J.S.A. 2C:43-7b. Because twenty-five years exceeds seventeen years, the twenty-five year parole disqualifier would be in effect.
On the robbery conviction, defendant was sentenced to a consecutive ten years imprisonment with an eighty-five percent, or eight-and-one-half year, parole disqualifier, thus raising his aggregate sentence to life plus ten years with a thirty-three-and-one-half-year parole disqualifier.
Had this crime occurred before June 29, 2001, the sentence would have been legal and appropriate in all respects. However, NERA was amended, effective on that date, to require imposition of the eighty-five percent NERA parole disqualifier on the base term "actually imposed." N.J.S.A. 2C:43-7.2b, as amended by L. 2001, c. 129, § 1, effective June 29, 2001. The amended section further provides: "Solely for the purpose of calculating the minimum term of parole ineligibility pursuant to subsection a. of this section, a sentence of life imprisonment shall be deemed to be 75 years." Ibid. Thus, in this case, because the crime was committed after June 29, 2001, an extended base term of life imprisonment carries with it a NERA parole disqualifier of 63.75 years (eighty-five percent of seventy-five years).
The issue of the length of the parole disqualifier on count one came to defendant's attention when he was notified by the Department of Corrections (DOC) that his minimum release date is December 25, 2074. His inmate remedy efforts failed to persuade the DOC to change his release date, so defendant sought an order in the PCR proceeding compelling the DOC to comply with the express terms of the judgment of conviction. The State's position was that this was an administrative matter between defendant and the DOC and should not be addressed in the PCR proceeding. The PCR judge did not rule on the issue.
Defendant has moved for resentencing in light of the illegality of the sentence he now has. He contends that the parole disqualifier set by the trial court should control and therefore asks us to order that his revised sentence be fashioned in a way that his parole disqualifier does not exceed thirty-two-and-one-half years.
The aggregate parole disqualifier imposed is actually thirty-three-and-one-half years.
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The State now acknowledges that the sentence is illegal but urges us to let it remain in effect. The State reasons that the illegality inures to defendant's benefit, the State did not appeal when the sentence was initially imposed or when it was reimposed after the Natale remand, and it is the sentence that the State requested (albeit mistakenly) before the trial court.
An illegal sentence is one "in excess of or otherwise not in accordance with the sentence authorized by law." R. 3:22-2(c); State v. Acevedo, 205 N.J. 40, 45 (2011); State v. Murray, 162 N.J. 240, 247 (2000). An illegal sentence may be corrected at any time. R. 3:21-10(b)(5); State v. Sheppard, 125 N.J. Super. 332, 336 (App. Div.), certif. denied, 64 N.J. 318 (1973).
In this case, the judge mistakenly applied the sentencing principles applicable to NERA prior to the 2001 amendment, as prescribed in State v. Allen, 337 N.J. Super. 259 (2001), certif. denied, 171 N.J. 43 (2002), and State v. Andino, 345 N.J. Super. 35 (2001). However, for crimes occurring after the effective date of the 2001 amendment, the amendatory provision must be applied. State v. Meekins, 180 N.J. 321, 327-28 (2004).
Accordingly, defendant must be resentenced anew if his conviction remains in effect. This court has already sustained the imposition of an extended term for the aggravated sexual assault conviction. That determination, therefore, remains in effect. Further, defendant's arguments regarding illegality do not pertain to the fact that his robbery sentence was ordered to be served consecutively. Indeed, a consecutive sentence is not illegal. The court shall fashion a new sentence as deemed appropriate within the court's discretion after hearing arguments presented by both sides. If the original trial judge, who presided over the trial and imposed the sentence now in effect, is available, it would be preferable that he conduct the resentencing.
VI.
To the extent that we have not addressed any other arguments presented by defendant, through counsel or pro se, they lack sufficient merit to warrant discussion in written opinion. R. 2:11-3(e)(2).
The January 19, 2011 order denying post-conviction relief is reversed and remanded for further proceedings consistent with this opinion. Defendant's motion to remand for resentencing (M-001169-12) is granted in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION