Opinion
DOCKET NO. A-3088-13T3
04-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEAN MORALES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-06-0676. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jean Morales appeals from a July 25, 2013 order denying, without oral argument or an evidentiary hearing, his petition for post-conviction relief (PCR). We affirm.
I.
In 2007, a jury convicted defendant of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The weapon convictions were merged into the aggravated manslaughter conviction, and defendant was sentenced to thirty years in prison, with an eighty-five percent parole disqualifier in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On direct appeal, defendant's convictions and sentence were affirmed. State v. Morales, No. A-5846-06 (App. Div. Sept. 22, 2010), certif. denied, 205 N.J. 101 (2011).
Defendant had previously been convicted of these crimes and first-degree murder following a jury trial in 2002. Those first set of convictions were reversed because the trial court failed to sua sponte instruct the jury on passion/provocation manslaughter as a lesser-included offense. State v. Castagna, 376 N.J. Super. 323, 355 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006).
In 2011, defendant filed a petition for PCR and was assigned counsel. Judge Stuart Peim, who was also the judge who presided over defendant's second trial, denied the petition without hearing oral arguments or holding an evidentiary hearing. Judge Peim explained the reasons for denying the petition in a written memorandum order.
On this PCR appeal, defendant contends:
POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR NOT PURSUING AN EXCULPATORY WITNESS.
POINT II - THIS MATTER MUST BE REMANDED BECAUSE THE TRIAL/PCR COURT ABUSED ITS DISCRETION FOR NOT AFFORDING DEFENDANT ORAL ARGUMENT (Not Raised Below).
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a "defendant must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see State v. Nuñez-Valdéz, 200 N.J. 129, 138 (2009). Second, "a defendant must show [there exists] a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013).
An evidentiary hearing is necessary only after a defendant meets two conditions. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013). First, a defendant must establish "a prima facie case in support of [PCR]." R. 3:22-10(b). Second, a defendant must show "there are material issues of disputed fact that cannot be resolved by reference to the existing record." Ibid.
Here, defendant claims he provided trial counsel with names of potential witnesses, but his counsel did not adequately investigate those witnesses. Defendant identifies two such witnesses: B.T. and L.C. As part of his PCR petition, defendant submitted a written statement from B.T., but provided no statement from L.C. Defendant argues that both witnesses would have testified that defendant was highly intoxicated at the time of the assault on the victim. Defendant then argues that had B.T. or L.C. testified at trial, the jury might have credited their testimony, and either acquitted or convicted him of the lesser-included offense of reckless manslaughter.
We use initials when referring to witnesses to protect their confidentiality. --------
Judge Peim rejected that argument, reasoning that defendant had presented testimony from other witnesses concerning his intoxication at the time of the assault. Judge Peim also reasoned that any testimony from the potential witnesses "would have been of limited or no value to the defendant because his intoxication was well-documented in the trial record." Judge Peim concluded that defendant was not entitled to an evidentiary hearing because he failed to make a prima facie showing of ineffective assistance of trial counsel. We agree.
B.T. was the wife of A.V., and A.V. testified at defendant's trial. A.V. was with defendant most of the evening leading up to the assault; the two were drinking heavily during that time. Other witnesses also testified that defendant was part of a group of people who were drinking heavily and were intoxicated. In her statement, B.T. states that she saw defendant drinking heavily earlier in the evening and that defendant showed signs of being intoxicated. Given that several other witnesses testified about defendant's intoxication, we agree with Judge Peim that testimony from B.T. would have been "duplicative." Thus, defendant failed to make a prima facie showing that trial counsel was deficient in either investigating or calling these potential witnesses. Moreover, defendant also failed to show that any alleged error prejudiced his defense because the trial record contains substantial evidence concerning defendant's intoxication. As a consequence, defendant did not satisfy either prong of the Strickland test and he was not entitled to an evidentiary hearing.
Defendant also argues that he was entitled to oral argument on his PCR petition. Our Supreme Court has explained "that there is a strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief." State v. Parker, 212 N.J. 269, 283 (2012) (citing State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001)). The Court has also explained that
when the trial judge does reach the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary. A general reference to the issues not being particularly complex is not helpful to a reviewing court when a defendant later appeals on the basis that the denial of oral argument was an abuse of the trial judge's discretion.
[Id. at 282-83.]
Judge Peim expressly acknowledged that he had considered Parker and the presumption in favor of oral argument. In his written memorandum order, Judge Peim explained that oral argument was not necessary on defendant's petition because defendant's contentions were vague and conclusory, defendant had failed to set forth a prima facie case for PCR, and he had failed to identify contentions or arguments that would have been meaningfully enhanced by oral argument.
On appeal, defendant has failed to explain how he was prejudiced by a lack of oral argument. Defendant has neither identified any argument or contention that was not adequately considered by Judge Peim nor demonstrated that the purposes underlying the post-conviction procedure would be furthered by oral argument. Accordingly, we discern no abuse of discretion in its denial here.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION