Opinion
DOCKET NO. A-0169-11T4
01-14-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS A. DEJESUS, a/k/a LOUIS RODRIGUEZ, "PUTO", Defendant-Appellant.
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 (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-01-0102.
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 (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Luis A. DeJesus appeals from an October 6, 2008 order denying his first petition for post-conviction relief (PCR). We affirm.
Although the order was entered in 2008, defendant apparently did not receive a copy until much later; therefore, we permitted him to file his notice of appeal in 2011.
I
Following a jury trial, defendant was convicted of first-degree felony murder, N.J.S.A. 2C:11-3a(3), three counts of first-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and associated weapons and conspiracy counts. After merger, the court sentenced defendant on July 14, 2000, to an aggregate term of sixty-four years, eighty-five percent to be served without parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal, raising the following issues:
POINT I
THE DEFENDANT'S STATEMENT TO THE POLICE WAS TAKEN IN VIOLATION OF HIS MIRANDA RIGHTS AND SHOULD NOT HAVE BEEN FOUND ADMISSIBLE BY THE COURT.
POINT II
THE COURT ERRED WHEN IT ALLOWED THE TESTIMONY OF YVALISSE RIVERA TO BE HEARD BY THE JURY.
POINT III
THE COURT ERRED WHEN IT FAILED TO DECLARE A MISTRIAL.
POINT IV
THE DEFENDANT WAS UNFAIRLY PREJUDICED BY THE IN COURT BEHAVIOR OF HIS CO-DEFENDANT AND WAS THEREFORE DENIED A FAIR TRIAL.
POINT V
THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT VI
THE COMBINED EFFECT OF THE ERRORS LISTED IN POINTS I, II, III, IV, AND V CONSTITUTE REVERSIBLE CUMULATIVE ERROR.
POINT VII
THE SENTENCE WAS EXCESSIVE.
He also raised two additional points in his pro se supplemental brief:
POINT I
DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND MOTION FOR A NEW TRIAL.
POINT II
AGGRAVATING AND MITIGATING FACTORS.
We affirmed the conviction, but remanded for re-sentencing because the felony murder conviction was not subject to NERA at the time the murder was committed, and because the judge did not give a statement of reasons for imposing consecutive sentences, under State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). State v. DeJesus, Docket Nos. A-1894/2741/5736-00 (App. Div. Feb. 17, 2004), certif. denied, 180 N.J. 452 (2004). The record presented to us does not include an amended judgment of conviction and, hence, does not reveal whether defendant was resentenced pursuant to our opinion.
The trial evidence was discussed in detail in our opinion on the direct appeal and need not be repeated here. In brief, defendant was one of a group of assailants who broke into an apartment building and brutally stabbed several victims, killing one of them and causing another victim to lose a kidney.
Defendant filed a pro se PCR petition on August 16, 2006, alleging that his trial counsel was ineffective for failing to "conduct [an] adequate investigation and call rebuttal witnesses on defendant's behalf"; failing to "investigate" certain police reports and medical reports; failing to file a suppression motion challenging the validity of defendant's signature on his statement to the police; failing to object to the introduction of certain trial evidence; and failing to call defendant as a witness.
Defendant's assigned counsel filed a more formal supplemental brief and appendix in support of the petition, alleging that assigned trial counsel failed to investigate and interview witnesses; failed to call an expert witness to testify at the Miranda hearing concerning whether defendant's confession was in his handwriting; and failed to communicate "any plea offer" to defendant or advise him of the sentencing consequences of a guilty verdict. The brief also raised the issue of NERA's application to the felony murder conviction and the Yarbough issue; and trial counsel's alleged failure to advise defendant concerning the advantages and disadvantages of testifying at his trial. Defendant filed a pro se supplemental brief, alleging that defense counsel failed to investigate; the trial judge erred in admitting a statement of a co-defendant at trial and in admitting the statement of a "juvenile witness . . . after [an] illegal seiz[ure]"; and the prosecutor made improper statements in summation.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After hearing oral argument on October 3, 2008, Judge Michael A. Petrolle, who had also presided over the trial, rendered a thorough oral opinion stating his reasons for rejecting the PCR petition. After noting that the court had given PCR counsel "months and months and months to do an investigation," the judge stated that despite counsel's best efforts, the defense still had not submitted certifications from any witnesses to support the claim of ineffective assistance of counsel. Further, he found that, even the investigative reports submitted by the defense did not indicate that any of the alleged witnesses had personal knowledge of "what conduct the defendant did or did not engage in" at the time of the murder. Citing State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), the judge reasoned that "[bald] assertions" were insufficient to establish a prima facie case of ineffective assistance, and hence defendant was not entitled to an evidentiary hearing, under State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Addressing the handwriting expert, the judge recalled that initially, the expert based her opinion only on photocopies of defendant's statement, and changed her opinion after having a chance to look at the original document. He therefore found that calling the expert as a witness would not have helped the defense. The judge rejected the issue concerning failure to communicate a plea offer, because the State never extended a plea offer to defendant. The judge found that the sentencing issues were addressed on defendant's direct appeal. Addressing alleged trial errors, the judge reasoned that defendant was barred from raising issues in his PCR petition that were or could have been raised on direct appeal. See R. 3:22-4; R. 3:22-5.
Based on his own recollection of the trial, and his reading of the trial transcript, the judge found no merit in defendant's claim that he was not advised of his right to testify and was not counseled about that right. To the contrary, the judge found that defendant staunchly insisted that his counsel advised him about the issue and that he did not want to testify. The judge then addressed in detail all of defendant's pro se claims and concluded that they were either without merit or barred because they were already raised and rejected on the direct appeal.
II
On this appeal, defendant raises the following points for our consideration:
POINT I
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. THE DEFENDANT'S FAILURE TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL RESULTED IN THE DEFENDANT NOT TESTIFYING IN HIS OWN BEHALF.
In a supplemental pro se brief, defendant presents these additional points:
POINT I
THE COURT ERRED IN DENYING AN EVIDENTIARY HEARING TO FULLY ADDRESS[] COUNSEL'S INABILITY TO CONDUCT ANY INVESTIGATION OR INTERVIEW ANY WITNESSES IN VIOLATION[] OF DEFENDANT'S CONSTITUTIONAL RIGHT TO COMPETENT ASSISTANCE OF COUNSEL.
POINT II
THE COURT ERRED IN DENYING DEFENDANT POST-CONVICTION RELIEF AFTER DEFENDANT DEMONSTRATED THAT HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS OF DUE PROCESS AND CONFRONTATION.
Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated in Judge Petrolle's cogent opinion. We add the following comments.
Defendant's argument that his counsel did not advise him about the advantages and disadvantages of testifying is not supported by the record. The transcript reveals that Judge Petrolle reviewed those issues with defendant in an extensive voir dire. Defendant and his attorney both confirmed that they had discussed the issues, and defendant insisted that he would not testify.
Defendant's pro se arguments are equally without merit. Defendant argues that his counsel should have interviewed a large number of witnesses. The documents attached to his pro se brief do not indicate that any of the witnesses would have helped the defense. Further, as Judge Petrolle correctly observed, defendant did not submit certifications from any witnesses, and "bald assertions" are insufficient to support a claim of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170. Defendant's remaining pro se arguments are barred because they either were or could have been raised on his direct appeal. See R. 3:22-4; R. 3:22-5.
Defendant failed to present a prima facie case of ineffective assistance of counsel, under either prong of the Strickland test, and therefore was not entitled to an evidentiary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451 (1992).
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see State v. Fritz, 105 N.J. 42 (1987).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION