Opinion
DOCKET NO. A-1010-13T4
06-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAUL RODGERS, a/k/a ROLANDO BETANCOURT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Whipple. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1322. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from an order entered by the Law Division on March 11, 2013, denying his petition for post-conviction relief ("PCR"). We affirm.
Defendant was charged with third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (count one); second-degree disarming or attempting to disarm a law enforcement officer, N.J.S.A. 2C:12-11a (count two); and second-degree attempted escape, N.J.S.A. 2C:5-1, N.J.S.A. 2C:29-5a (count three). Defendant was tried before a jury.
At the trial, evidence was presented which established that on June 5, 2007, defendant arrived at the Hudson County Administration Building in Jersey City for a court appearance on a criminal charge. He was in the custody of a sheriff's officer, and was placed in a receiving area. According to the sheriff's officer, defendant had been placed in restraints.
At some point, defendant was escorted to a cell and then to the ninth floor of the building, where Officer Michael Diaferia ("Diaferia") was waiting to bring him to a particular courtroom. When defendant arrived on the ninth floor, he began to shout and curse. Diaferia noticed that the cuffs on defendant's hands appeared to have been defaced.
Diaferia obtained another pair of handcuffs. When he approached defendant, the cuffs on defendant's hands fell apart and hit the ground. According to Diaferia, defendant grabbed his weapon. Diaferia and defendant struggled and fell to the ground. Other officers arrived and defendant was secured. Diaferia and defendant had suffered physical injuries that required medical treatment.
Defendant testified that when he arrived on the ninth floor, several officers were there and they were discussing what to do with him. He was placed into a waiting area. Defendant claimed he was confronted by Diaferia. He said the dispute escalated and he was "roughed up" by the officer. A physical scuffle ensued. Defendant stated that Diaferia hit his head on the corner of some furniture but then stood up and injured defendant's foot.
The jury found defendant not guilty on count two, disarming or attempting to disarm a law enforcement officer, but guilty on count one, aggravated assault, and count three, attempted escape. At sentencing, the trial judge determined that defendant was eligible for a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a. On count three, the court sentenced defendant to twenty years of incarceration, with ten years of parole ineligibility. The judge ordered that the sentence be served consecutively to a forty-year prison term defendant was already serving. On count one, the judge imposed a ten-year prison term, with five years of parole ineligibility, concurrent with the sentence imposed on count three.
Defendant appealed from the judgment of conviction dated March 20, 2008, and signed on March 25, 2008, and raised the following arguments:
POINT I
THE TRIAL COURT'S CONFUSING JURY INSTRUCTIONS ON THE CHARGE OF ATTEMPTED ESCAPE ALLOWED THE JURORS TO CONVICT [DEFENDANT] IF THEY FOUND HE ACTED WITH LESS THAN THE PURPOSEFUL CULPABILITY REQUIRED. U.S. CONST., Amends[.] V, XIV; N.J. Const. (1949) Art. I, ¶ 1. (Not raised below).
A. The trial court's jury charge on attempted escape was fatally flawed because it failed to include a critical portion of the Model Jury Charge on that offense.
B. When, during deliberations, the jurors asked for an explanation of attempted escape, the trial court failed again to give the portion of the Model Charge that clarifies the need to find a purposeful mental state for this offense, even though an actual "escape" requires only a "knowing" state of mind.
POINT II
THE [TWENTY]-YEAR EXTENDED PRISON TERM, [TEN] YEARS WITHOUT PAROLE, WHICH THE TRIAL COURT IMPOSED ON THE CONVICTION OF [SECOND-DEGREE] ATTEMPTED ESCAPE WAS EXCESSIVE.
In an unpublished opinion, we affirmed defendant's convictions and the sentence imposed for the attempted escape, but remanded for clarification of the sentence imposed for aggravated assault. State v. Rodgers, No. A-5373-07 (Aug. 7, 2009) (slip op. at 15). Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Rodgers, 209 N.J. 430 (2012).
Thereafter, defendant filed a pro se PCR petition in the trial court, claiming ineffective assistance of counsel and "improper jury instructions[.]" The court assigned counsel to represent defendant, and counsel filed an amended petition, claiming that trial counsel was ineffective for failing to object to the trial court's definition of attempted escape, and arguing that appellate counsel was ineffective for failing to brief the charge issue on appeal. In addition, the amended petition claimed that trial counsel failed to adequately investigate the case and consult with defendant.
The PCR court heard oral argument on the petition on March 11, 2013, and placed its decision on the record that day. The court determined that defendant's claim regarding the jury instructions on attempted escape had been raised and resolved in the earlier appeal and therefore was barred by Rule 3:22-5. The court also addressed counsel's alleged failure to investigate the case and call witnesses favorable to the defense. The court stated that this claim had no factual support. It was a "bald assertion" and lacked merit. The court entered an order dated March 11, 2013, denying PCR. This appeal followed.
On appeal, defendant's counsel has filed a brief raising the following arguments:
POINT I
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL, WHO FAILED TO PROVIDE SUBSTANTIATION OF DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, RESULTING IN DISMISSAL OF THE PETITION WITHOUT AN EVIDENTIARY HEARING.
POINT II
THE PCR COURT ERRED IN DISMISSING THE PETITION BECAUSE DEFENDANT DEMONSTRATED THAT HIS TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE JURY CHARGE CONCERNING ATTEMPT.
In addition, defendant has filed a pro se supplemental brief, in which he argues:
POINT I:
THE PCR COURT['S], DENIAL OF THE PETITION WITHOUT AN EVIDENTIARY HEARING, REQUIRES [DE NOVO] REVIEW. NO WRITTEN OPINION, DISCLOSING THE FINDINGS OF FACTS AND CONCLUSIONS OF LAW WAS []EVER FILED BY THE JUDGE IN THIS COURT; AND THAT NO ANSWERING BRIEF FROM THE RESPONDENT WAS FILED IN THE PROCEEDING HELD IN THE PCR COURT NOR BEFORE THIS COURT WAS EVER FILED, RENDERS THIS APPEAL TO BE UNOPPOSED [SIC] (Not Raised Below).
A. PCR Court Improperly [D]enied the[H]olding of Evidentiary Hearing, a De Novo Review [I]s Required [Sic].
POINT II:
TRIAL COUNSEL FAILED TO DO ANY INVESTIGATION PRIOR TO TRIAL AND AS A RESULT FAILED TO CALL FAVORABLE WITNESSES, CAUSING INEFFECTIVE ASSISANCE OF COUNSEL BY FAILING TO PURSUE ALIBI [AN] DEFEN[S]E, AND [BY] FAILING TO PROVIDE ADEQUATE ASSISTANCE (Partially raised below).
POINT III:
THE CASE MUST BE REVERSED AND REMANDED TO THE TRIAL COURT VACATING ALL SENTENCES FOR AN ENTRY OF A JUDGMENT OF ACQUITTAL [SIC]. MOREOVER THE COURT FAILED TO CONSIDER ANY OF THE SENTENCING FACTORS APPLICABLE TO THE DEFENDANT BASED ON HIS PRIOR CRIMINAL RECORD OF CONVICTIONS. THUS RENDERING DEFENDANT'S SENTENCE ILLEGAL [SIC] (Not raised below).
A. De Novo Review [S]ought to [R]esolve the Illegal Sentence [Sic].
B. Aggravating Factor [D]id [N]ot Apply [a]nd "the [C]ourt" [D]id [N]ot [O]btain the Consent of Defendant [Sic].
C. Imposition of No Early Release Act [I]s Illegal [Sic].
POINT IV:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION, BECAUSE DEFENDANT DEMONSTRATED A [PRIMA FACIE] SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, BY ALL CLAIMS MADE, INCLUDING HIS FAILURE TO OBJECT CONCERNING THE JURY CHARGES GIVEN ON ATTEMPTED ESCAPE, HAVING BEEN CONVICTED [OF] ESCAPE [SIC]. (Partially raised below).
Claims of ineffective assistance of counsel are considered under the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The Strickland test requires a defendant to show that the performance of his attorney was deficient, and that counsel's deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Furthermore, the court is not required to conduct an evidentiary hearing on a PCR petition unless the defendant establishes a prima facie case for relief, the existing record is not sufficient to resolve the claims, and the court determines that a hearing is required. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354-55 (2013).
Here, defendant claims, for the first time on appeal, that PCR counsel was ineffective because counsel failed to provide an affidavit or certification to substantiate his claim that trial counsel erred by failing to conduct an adequate investigation and call witnesses favorable to the defense. Defendant concedes that the PCR court correctly found that the claim was a "bare allegation" without any factual support.
However, defendant's claim that PCR counsel was ineffective also is unsubstantiated. Defendant has not identified any specific, exculpatory evidence that would have been obtained in a further investigation of the case. He has not identified any witness who would have testified on his behalf. Moreover, he has not shown that the PCR petition would have been decided differently if this additional information had been provided.
Defendant also argues that the PCR court erred by finding that his claim regarding the jury charge on attempted escape was barred by Rule 3:22-5, which provides that "[a] prior adjudication upon the merits of any ground for [PCR] is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to [the court rules] or prior to the adoption thereof, or in any appeal taken from such proceedings."
Defendant acknowledges that an issue regarding the propriety of the jury charge on attempted escape was raised on direct appeal, but says the issue raised on PCR was unrelated to the instruction itself. According to defendant, the issue raised on PCR was trial counsel's failure to object to the instructions, which resulted in the issue being considered on direct appeal under the plain error standard in Rule 2:10-2. Under that standard, errors only warrant reversal when they are "clearly capable of producing an unjust result[.]" R. 2:10-2.
We are convinced, however, that the PCR court correctly determined that defendant's claim that counsel was ineffective for failing to object to the instructions on attempted escape was barred by Rule 3:22-5. In defendant's direct appeal, we determined that the charge was not legally erroneous, although it was capable of improvement. Rodgers, supra, No. A-5373-07 (slip op. at 12-13).
Even if the claim were not barred by Rule 3:22-5, it fails because defendant has not shown he was prejudiced by counsel's failure to object to the instructions, instead of objecting only to the hypothetical examples the court provided to explain the charge. We are convinced that this court would not have decided the appeal differently if trial counsel had objected to the charge.
We have considered the additional arguments defendant has presented in his pro se supplemental brief, and conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION