Opinion
DOCKET NO. A-2764-10T3
05-16-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AGUSTIN GARCIA, Defendant-Appellant.
Agustin Garcia, appellant pro se. John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1368.
Agustin Garcia, appellant pro se.
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Agustin Garcia appeals from the denial of his third petition for post-conviction relief (PCR), which was denied without an evidentiary hearing. On appeal, defendant argues:
POINT IFollowing our consideration of these arguments in light of the record and applicable law, we affirm.
APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. Post-conviction counsel . . . failed to adequately prepare and exercise normal customary skills in preparation of appellant's PCR and failed to investigate and properly put forth [a]ppellant's claims of prosecutorial misconduct and prior counsels' ineffective assistance due to a fraudulently altered wedding videotape, and other issues, but rather [counsel] denigrated his claims and worked against the defense.
B. Post-conviction appellate counsel . . . failed to raise issue of ineffective assistance of PCR counsel insisted upon by [a]ppellant and failed to seek a ruling from Law Division on timely filed [m]otion for [r]econsideration.
C. Trial counsels [sic] were ineffective for not consulting or hiring an expert to examine the wedding videotape for evidence of an altercation captured on the audio of the videotape.
D. Trial counsels [sic] were ineffective for failing to interview witnesses and secure their attendance at trial.
E. Trial counsels [sic] were ineffective for failing to seek forensic testing of "four bags of bedding" hand-delivered to a defense investigator on October 27, 1999.
F. Trial counsels [sic] were ineffective for failing to seek copy of
PathMark original multiplexor surveillance tape.
G. Direct appeal, first PCR counsel and PCR appellate counsels were ineffective for failing to investigate and/raise the issue that all statements allegedly made by defendant should have been suppressed because the State's witness Robert Anzilotti violated federal JENCKS statute, [18 U.S.C.A. § 3500,] by destroying his hand-written notes.
H. Appellate, first PCR, and PCR appellate counsel[s] were ineffective as they failed to investigate or raise issue that defendant was denied the right to be tried by fair and impartial jury, guaranteed by the Sixth Amendment of the United States Constitution.
I. Appellate, first PCR and PCR appellate counsels failed to effectively raise issue that defendant's sentence was manifestly excessive, thereby subjecting appellant to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.
J. Appellate, first PCR and first PCR appellate counsels failed to effectively raise issue that PCR court violated defendant's due process rights guaranteed by the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution and the right of access to court guaranteed by the First Amendment of the U.S. Constitution, by arbitrarily failing to rule on his timely and properly filed discovery motions.
K. Appellate, first PCR counsel and first PCR appellate counsels failed to effectively raise issue that petitioner's conviction was obtained as the result of bias by the trial judge.
L. Appellate, first PCR counsel and first PCR appellate counsels [sic] failed to effectively raise issue of the cumulative effect of trial errors.
M. Trial, appellate, first PCR and first PCR appellate counsels failed to properly challenge 404B evidence.
N. Trial counsel's failure to file a motion to quash indictment, motion for discovery, motion to produce exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).
POINT II
[APPELLATE]'S CONVICTION WAS OBTAINED AS A RESULT OF THE PROSECUTOR'S MIS-STATEMENTS INDICATING AS [FOUR] SECONDS THE GAP TIME BETWEEN DEFENDANT'S ENTRANCE TO THE HOUSE AND TRUE TIME OF 66 SECONDS. THIS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION.
POINT III
AN EVIDENTIARY HEARING IS REQUIRED ON THIS MATTER.
POINT IV
LOWER COURT ERRED BY FAILING TO ISSUE ORDER PURSUANT TO R. 1:6-2(F); [R.]2:2-3 RELATING TO APPELLANT'S MOTION FOR RECONSIDERATION OF DENIAL OF THIRD PCR, THEREBY VIOLATING HIS DUE PROCESS RIGHT GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION.
POINT V
THE STATEMENTS ALLEGEDLY MADE BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED BECAUSE DEFENDANT'S FEDERAL FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS "ASSISTANCE OF COUNSEL AND DUE PROCESS" RIGHTS, AND STATE'S CONSTITUTIONAL RIGHT WERE EGREGIOUSLY
VIOLATED WHEN STATE'S WITNESS ROBERT ANZILOTTI VIOLATED FEDERAL JENCKS STATUTE, BY DESTROYING HIS HAND-WRITTEN NOTES.
POINT VI
DEFENDANT REASSERTS ALL OTHER ISSUES PREVIOUSLY RAISED IN HIS BRIEFS FILED IN SUPPORT OF DIRECT APPEAL, FIRST, SECOND, AND THIRD PETITIONS FOR POST-CONVICTION RELIEF, AND RELATED PCR RECONSIDERATION MOTIONS AND PCR APPEALS.
POINT VII
TRIAL COURT DENIED PETITIONER THE RIGHT TO PUBLIC TRIAL BY IMPARTIAL JURY IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
A lengthy recitation of the underlying events leading to defendant's convictions is not relevant to the issues presented on appeal. We include this brief statement.
Defendant is serving a life sentence with a thirty-year period of parole ineligibility following his conviction for murdering his former girlfriend, Gladys Ricart, whom he shot three times at close range in her home on the day of her wedding. A consecutive four-year term of imprisonment was imposed for the weapons offense along with two concurrent four-year terms for endangering the welfare of a child.
On direct appeal, we affirmed defendant's convictions and the sentences imposed for murder and the weapons offenses. State v. Garcia, (Garcia I) No. A-3939-01 (App. Div. May 11, 2004). We reversed the endangering convictions. Ibid. Certification was denied. State v. Garcia, 181 N.J. 545 (2004).
Defendant filed his first PCR petition, which was denied on May 4, 2007. Defendant appealed, asserting "approximately fifty grounds" in a pro se submission and the brief filed by counsel, alleging ineffective assistance of trial and appellate counsel. He also alleged trial errors as well as prosecutorial misconduct and jury prejudice, essentially attempting to present "re-arguments of the facts of the case." State v. Garcia, (Garcia II) No. A-5437-06 (App. Div. Nov. 6, 2009) (slip op. at 3-4, 9), certif. denied, 202 N.J. 348 (2010). We affirmed the denial of defendant's PCR petition, finding defendant's arguments of ineffective assistance were "wholly without merit to warrant further discussion, R. 2:11-3(e)(2); could have been raised on direct appeal, R. 3:22-4; or had previously been adjudicated on direct appeal, R. 3:22-5." Id. slip op. at 14-15.
While appeal of the denial of the first PCR petition was pending, defendant filed his second PCR petition, which the court considered. PCR was denied upon a finding defendant's submission was "little more than a resubmission of his prior petition." Further, the PCR judge rejected defendant's claims of excusable neglect in failing to submit his PCR petition within the limitations period of Rule 3:22-12 (barring review of PCR requests filed more than five years after rendition of the judgment or sentence sought to be attacked). We affirmed this order and certification was denied. State v. Garcia, (Garcia III) No. A-3198-09 (App. Div. Aug. 12, 2011) (slip op. at 1, 5-6), certif. denied, 209 N.J. 596 (2012).
Again, pending appellate review, defendant filed his third PCR petition. The reviewing PCR judge denied relief on December 15, 2010, and this appeal ensued. Without regard to procedural requisites, defendant filed a motion to reconsider the denial of his third PCR petition, which was also denied on January 20, 2011. Defendant then amended his notice of appeal to include this order.
Rule 3:22-4(b)(2)(A)-(C) provides that a second or subsequent PCR petition "shall be dismissed unless" 1) it relies on a new rule of constitutional law; or 2) it relies on a factual predicate that could not have been discovered earlier; or 3) it alleges ineffective assistance of counsel that represented defendant on an earlier petition for post-conviction relief. The third petition does not raise any of the issues allowed by Rule 3:22-4(b)(2)(A)-(C). Defendant has not asserted any new facts or any new constitutional basis for relief. Further, he has not alleged a prima facie case of ineffective assistance of PCR counsel.
For the most part, the arguments presented restated claims defendant had previously posited against trial and appellate counsel. In fact, many of these exact arguments were made in the second PCR petition, thus none of these claims may be considered. See R. 3:22-5 (providing that a "prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding").
Other arguments are repackaged adding a new allegation. For example, in Point I sub-point (G), defendant complains that the attorneys who represented him on direct appeal, in his first PCR application, and in the appeal of his first PCR petition were ineffective because they did not seek to suppress his involuntary statement to police. This assertion was previously advanced and rejected on direct appeal. See Garcia I, supra, slip op. at 30-35. He further states discovery violations occurred because the interrogating officer violated federal statute by destroying his handwritten notes. However, the claim is not explained or supported. Defendant has not constructed an argument for review resulting in our rejection of the bald assertion. See State v. Biegenwald, 106 N.J. 13, 41 (1987) (rejecting arguments resting on mere implications).
Each of the contentions set forth in the thirteen subsections of Points I, II, V, VI and VII have been reviewed earlier by this court and found wanting. They will not again be considered. R. 3:22-5.
We also reject as unfounded defendant's suggestion in Point III that he is entitled to an evidentiary hearing to review his claims for PCR. Such hearings are only required "upon the establishment of a prima facie case," showing a reasonable likelihood of succeeding on the merits. R. 3:22-10(b). See also State v. Preciose, 129 N.J. 451, 462-63 (1992) (providing for evidentiary hearing on prima facie showing PCR is warranted).
Defendant's assertion he was denied due process in the denial of his third PCR petition and in the motion to reconsider that denial fail to articulate a claimed error. Rather, defendant merely disagrees with the result. Relying on our review of the arguments set forth above, we conclude this argument also lacks merit. R. 2:11-3(e)(2).
Finally, in Point IV defendant maintains the court rules, presumably the procedural bars to PCR, should be relaxed because he is self-represented. We disagree.
It is well-established that self-represented litigants must abide the requisite procedures and process in our courts when presenting their cause. See State v. Crisafi, 128 N.J. 499, 512 (1992) (noting pro se defendants must "conduct their defense in accordance with the relevant rules of criminal procedure and evidence"); Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997) (stating litigant's pro se status "in no way relieves her of her obligation to comply with the court rules"); Rosenblum v. Borough of Closter, 2 85 N.J. Super. 230, 241 (App. Div. 1995) ("Procedural rules are not abrogated or abridged by plaintiff's pro se status."), certif. denied, 146 N.J. 70 (1996). "Litigants are free to represent themselves if they so choose, but in exercising that choice they must understand that they are required to follow accepted rules . . . . Such litigants are also presumed to know, and are required to follow, the statutory law of this State." Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989).
We conclude there is no basis to reverse the PCR court's denial of defendant's third PCR petition as he has failed to assert a basis for relief pursuant to Rule 3:22-4(b)(2)(A)-(C). Further, the denial of defendant's motion for reconsideration will not be disturbed.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION