Opinion
DOCKET NO. A-2710-13T3
06-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAVIER GARCIA, a/k/a JAVIER SILVA, JAVIER MARTINEZ and OCHO GARCIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-09-01639. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Javier Garcia, who pled guilty in 2012 to first-degree aggravated manslaughter, appeals from the December 2, 2013 Law Division order, which denied his petition for post-conviction relief ("PCR"). We affirm.
I.
The record establishes the following facts and procedural history. On December 21, 2006, Francisco Arce-Perez was murdered in New Brunswick. The State alleges that Maximo Nunez and Miguel Aviles tortured and killed Arce-Perez because Arce-Perez owed Nunez drugs. The State also alleges that defendant acted as an accomplice in the murder of Arce-Perez. Further, the State alleges that defendant arranged for Arce-Perez to come to a garage in New Brunswick where he knew Nunez and Aviles would be waiting to rob Arce-Perez, learned that Nunez and Aviles were torturing Arce-Perez, assisted by purchasing duct tape, which was used to bind and gag Arce-Perez, and acted as a lookout while Arce-Perez was tortured and killed.
Referenced also in the record as Francisco Arse-Perez.
In its brief, the State identifies Miguel Aviles as the co-defendant. In the transcript of the defendant's plea allocution, the co-defendant is identified as Miguel Velez. For consistency, we have used the name as Miguel Aviles. --------
The police found the body of Arce-Perez, bound with duct tape, in a car in an alleyway in New Brunswick. Sometime after the murder, defendant was arrested on separate charges and held in jail. While in jail, defendant allegedly told another inmate that he was involved in the murder of Arce-Perez and that he was concerned because the duct tape used in the murder had been left in the garage. The inmate provided that information to the police, who then searched the garage and recovered a roll of duct tape. Forensic testing showed that the duct tape had blood from Arce-Perez. Thereafter, defendant was interviewed by law enforcement officers, and he made a number of incriminating statements concerning his role in the death of Arce-Perez.
On September 26, 2008, defendant was indicted and charged with a number of crimes related to the death of Arce-Perez, including first-degree murder, first-degree felony murder, first-degree robbery and first-degree kidnapping.
While those State charges were pending, defendant was convicted by a federal jury of possession and distribution of heroin and cocaine. In December 2010, defendant was sentenced by the federal court to a seventeen-and-one-half year term of imprisonment.
In March 2012, defendant appeared in State court for a trial on the charges related to the murder of Arce-Perez. On March 8, 2012, after a jury had been selected, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a). That guilty plea was the result of a negotiated plea agreement between defendant and the State. In return for defendant's plea of guilt, the State agreed to recommend a sentence of eighteen years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The State also agreed to recommend that defendant's State sentence run concurrent to defendant's federal prison sentence. Finally, the State agreed that all other State charges against defendant would be dismissed.
Defendant pled guilty before Judge Joseph Paone. During his plea allocution, defendant admitted that: (1) he participated in a scheme with Aviles and Nunez to rob Arce-Perez; (2) defendant's role included luring Arce-Perez to a garage where Aviles and Nunez were waiting; (3) while Aviles and Nunez were in the garage with Arce-Perez, defendant acted as a lookout, and he communicated with Aviles and Nunez; (4) defendant assisted Aviles and Nunez by picking up ransom money; (5) defendant also assisted Aviles and Nunez by getting duct tape; (6) the duct tape was used to kill Arce-Perez; and (7) defendant knew that Arce-Perez was killed in the garage.
At one point during his plea, defendant indicated that he was not originally aware that Aviles and Nunez would kill Arce-Perez. Judge Paone then gave defendant an opportunity to confer in private with his attorney. After speaking with his attorney, defendant continued his plea allocution. Defendant then admitted that he knew that both Aviles and Nunez were dangerous people. Defendant also admitted that while Aviles and Nunez were in the garage with Arce-Perez, he was in communication with Aviles and Nunez and became aware that Arce-Perez was being physically assaulted and harmed. Defendant further admitted that he continued to act as a lookout and that he assisted Aviles and Nunez by getting the ransom money. Finally, defendant admitted that he acted in total disregard to the risk to the life of Arce-Perez because he knew that Aviles and Nunez were capable of killing Arce-Perez.
During the plea, Judge Paone asked defendant if he understood the charges against him, if he understood the plea agreement, and whether he was acting voluntarily. To each question, defendant responded "Yes." Judge Paone then accepted defendant's guilty plea to aggravated manslaughter.
On May 14, 2012, defendant was sentenced to eighteen years in prison subject to NERA to run concurrent to defendant's federal prison sentence. Defendant did not file a direct appeal.
On January 2, 2013, defendant filed a petition for PCR. On December 2, 2013, Judge Paone heard oral argument on the petition and denied it without an evidentiary hearing.
In this appeal, defendant makes the following arguments:
POINT I
THE DEFENDANT'S GUILTY PLEA WAS NOT THE RESULT OF A KNOWING AND VOLUNTARY WAIVER OF RIGHTS.
POINT II
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
A. Trial Counsel Breached his Responsibility to Investigate the Material Facts when the Record Clearly Indicated a Need for an Inquiry.
B. Trial Counsel Was Ineffective When He Pressured his Client into Pleading Guilty.
C. Trial Counsel Was Ineffective in Failing to Pursue Meritorious Defenses and By Failing to Communicate Adequately with his Client.
POINT III
THE DEFENDANT SHOULD BE GRANTED RELIEF OR THE MATTER SHOULD BE REMANDED FOR AN [EVIDENTIARY] HEARING.
II.
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. "However, a defendant is not entitled to an evidentiary hearing if the 'allegations are too vague, conclusory, or speculative.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting Marshall, supra, 148 N.J. at 158). If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" on appeal. 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).
To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). First, "the defendant must demonstrate [] that counsel's performance was deficient." State v. Parker, 212 N.J. 269, 279 (2012) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid.
The Strickland test also applies to challenges to guilty pleas based on allegations of ineffective assistance of counsel. State v. DiFrisco, 137 N.J. 434, 456-57 (1994) (citing Hill v. Lockart, 474 U.S. 52, 58, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985)). To set aside a guilty plea, the defendant must show "(i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting DiFrisco, supra, 137 N.J. at 457); cf. Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1409-10, 182 L. Ed. 2d 379, 392 (2012) (explaining that a defendant must demonstrate with "reasonable probability" that the result would have been different had he or she received proper advice from his or her trial attorney concerning a plea offer.)
A.
First, defendant argues that he did not make a knowing and voluntary plea of guilty because he did not fully understand that some of the evidence against him might have been compromised. Specifically, defendant argues that a roll of duct tape used during the murder of Arce-Perez, and which was found in the garage with the victim's blood on the duct tape, might have been contaminated. In support of his PCR petition, defendant submitted a report prepared by Lieutenant Christopher Penna concerning the Arce-Perez murder investigation. In that report, Lieutenant Penna addressed a concern raised by investigator Ronald Rinaldi that the duct tape might have been contaminated when it was placed on a countertop in the garage. Lieutenant Penna's follow-up investigation reported that there had been no contamination because the countertop had been properly cleaned and, in any event, the duct tape was not actually placed on that countertop. Instead, the duct tape had been placed on a separate table designated for evidence processing and a paper barrier had been laid on the evidence table before the duct tape was placed on the table.
In this appeal, defendant seeks to withdraw his plea. To withdraw a plea after sentencing, a defendant must establish a "manifest injustice." R. 3:21-1. In considering a motion to withdraw a plea, a court evaluates four factors.
(1) Whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.State v. Slater, 198 N.J. 145, 157-58 (2009).
We review a trial court's decision on a motion to withdraw a guilty plea under an abuse of discretion standard. State v. Tate, 220 N.J. 393, 404 (2015) (citing State v. Lipa, 219 N.J. 323, 332 (2014)). We will reverse "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999) (citing State v. Smullen, 118 N.J. 408, 416 (1990)).
Initially, it should be noted that defendant did not make a separate argument to withdraw his guilty plea before the PCR judge. Instead, defendant made this duct tape contamination argument as part of an ineffective assistance of counsel argument. Specifically, defendant argued before the PCR judge that his counsel had been ineffective in failing to follow up on the potential duct tape contamination issue. Thus, we decline to address this argument as a separate argument to withdraw the guilty plea because it was not presented to the PCR court and it does not concern the court's jurisdiction or a matter of public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (explaining that appellate courts generally decline to address issues raised for the first time on appeal unless they concern jurisdiction or a matter of "great" public interest). Moreover, "[a]ny ground for relief not raised in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings" is generally "barred from assertion in a [PCR] proceeding." R. 3:22-4(a). Defendant has not shown that such a ground for relief "could not reasonably have been raised in any prior proceeding" or that any other exception applies. See ibid.
Nevertheless, the argument lacks merit. The PCR judge found that the report concerning the collection of the duct tape did not show any evidence of contamination. Moreover, the PCR judge, who was also the judge who presided over the pre-trial proceedings, found there was other evidence of defendant's involvement in the murder apart from the duct tape. That evidence included defendant's statements to law enforcement officers and his admission to the jail inmate. Finally, the PCR judge also found that defendant gave a factual basis for his guilty plea, that the plea was voluntary, and that defendant understood the consequences of his guilty plea. In short, when analyzed as a motion to withdraw a guilty plea, defendant has not satisfied any of the Slater factors.
As set forth above, the report concerning the collection of the duct tape did not show any evidence of contamination, and defendant has not proffered how further investigation could have reached a different conclusion. Defendant thus failed to proffer evidence showing his trial counsel's performance was deficient. To establish a prima facie claim
a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed[.]
[Porter, supra, 216 N.J. at 355 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999)).]
Defendant also fails to show that the PCR judge erred in rejecting the duct tape contamination argument as part of an ineffective assistance of counsel argument. The PCR judge correctly found that defendant failed to make a prima facie showing that his trial counsel prejudiced his defense, the second prong of Strickland. Defendant failed to show prejudice because there was no showing that he would not have pled guilty and would have insisted on going to trial. Having conducted a de novo review of the record, we agree.
When he pled guilty, defendant acknowledged that he understood the charges against him, that he understood the plea agreement, and that he was acting voluntarily. Most critically, before the court accepted defendant's guilty plea, the prosecutor reviewed with defendant the potential contamination of the duct tape and the follow up investigation conducted by Lieutenant Penna. Consequently, there was no showing that defendant would not have pled guilty because his trial counsel allegedly did not follow up on potential contamination of the duct tape.
B.
Defendant next argues his trial counsel was ineffective because counsel pressured defendant into pleading guilty, failed to file a motion to dismiss, failed to raise a defense based on defendant's alleged limited participation in the murder, failed to investigate possible police misconduct, and failed to adequately communicate with defendant. The PCR judge rejected each of these arguments finding they were based on conclusory allegations and defendant failed to make any showing that any motion not filed or any investigation allegedly not conducted would have had an effect on defendant's decision to plead guilty. Finally, the PCR judge found the record directly contradicted defendant's contentions.
Again, a de novo review of the record leads us to the same conclusions. Defendant does not explain how his trial counsel performed deficiently. There is no showing that a motion to dismiss would have had any probability of success. Similarly, there is no showing that trial counsel did not investigate any material matter. Finally, during defendant's plea, defendant told the judge he had spoken with his trial counsel and that he was satisfied with his trial counsel's services.
C.
Defendant's final argument is that this matter should be remanded for an evidentiary hearing. Defendant, however, has failed to make a prima facie showing that any of the arguments raised in support of his PCR petition have any reasonable likelihood of success on the merits. Consequently, the PCR court acted within its discretion in denying the request for an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION