Opinion
DOCKET NO. A-4115-14T4
10-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VICTOR E. AGUIRRE, a/k/a VICTOR AGUIRRE-GUTIERREZ, CARLOS E. VARGAS, and CARILS VAIGES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Haas. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-11-0998. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Victor Aguirre appeals from the January 23, 2015 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of two counts of second-degree robbery, N.J.S.A. 2C:15-1, and one count of third-degree knowingly or purposefully possessing cocaine, N.J.S.A. 2C:35-10(a)(1). The trial judge sentenced defendant to consecutive seven-year terms on the robbery charges, subject to the 85% parole ineligibility period required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent four-year term on the possession of cocaine charge. Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Aguirre, Nos. A-3809-10 and A-5007-10 (App. Div. February 27, 2013), certif. denied, 216 N.J. 6 (2013).
We need not repeat the facts developed at trial, which are set forth at length in our decision on direct appeal. Aguirre, supra, (slip op. at 3-6). --------
Defendant then filed his petition for PCR, contending his trial counsel rendered ineffective assistance by admitting defendant's guilt of cocaine possession during closing argument. Defendant also asserted his attorney should have consulted with him before making that strategic admission.
In a thorough oral opinion, Judge Scott Moynihan considered these contentions and denied defendant's petition. The judge concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. Judge Moynihan noted that the defense's position throughout the trial was that a robbery had not occurred and, instead, defendant and his two co-defendants had engaged in a mutual fight with the three alleged victims after the six men met on the street after drinking in separate bars on the night of the incident. In furtherance of this contention, defense counsel persuaded the trial judge to instruct the jury on self-defense, as well as the lesser-included offenses of simple assault and fighting as alternatives to the robbery charge.
On the other hand, the judge observed that the State's evidence on the cocaine possession charge was extremely strong. After the police detained defendant and his co-defendants after the incident, a detective saw defendant put his hand into his pocket, take out a bag of cocaine, and drop it on the ground. The detective immediately seized the cocaine.
Under those circumstances, the judge concluded it was "sound trial strategy" for defendant's attorney to concede his guilt on the cocaine possession charge in order to build credibility with the jury in support of defendant's primary position that no robbery occurred and that this was simply a mutual fight between the co-defendants and the victims after a night of drinking. As the judge explained, "in light of the overwhelming . . . evidence against . . . defendant on the possession charge, it was reasonable to concede that in hope of getting the jury to also believe that this robbery was, actually, a drunken fight."
The judge also rejected defendant's argument that his attorney's concession on the cocaine possession charge mistakenly led the jury to believe the attorney was also admitting defendant's guilt of the robbery charges. In his closing argument, defendant stated:
I told you about sort of what I anticipated the testimony was going to be -- that it was going to be about bars, drinking and fighting. And that's what this was . . . all about. You are going to convict my client. My client's guilty and there is no doubt about it as to the possession of cocaine._We are not disputing that. You are going to go back in the jury room and find he's guilty of that. That's . . . one of the charges against him and he readily admits that.
As to the other charges, [co-defendant's attorney] gave you a pretty good scenario and actually took what I was going to say and summarized it pretty well, so I'm not going
to . . . re-state it to you -- you heard it. Is this logical what occurred? That one person is going to rob someone and leave himself no visible way to get away after he robs the person? That's not someone who's going to rob.After reviewing this passage, the judge found defense counsel's concession of guilt was clearly limited to the cocaine possession charge, and that the attorney steadfastly argued that defendant and his co-defendants were not guilty of robbery but, instead, had merely engaged in a mutual fight with the victims.
[(emphasis added).]
Finally, Judge Moynihan rejected defendant's argument that his attorney did not confer with him at trial. Finding that this strategy was a "bald assertion" that was unsupported by the record, the judge stated that, contrary to defendant's contention, he never brought this concern to the attention of the trial judge. In addition, as noted above, the State's evidence on the cocaine possession charge was strong and, therefore, defendant could not demonstrate that he met the second prong of Strickland that, but for the allegedly deficient performance by his attorney, the result would have been different. This appeal followed.
On appeal, defendant contends:
THE TRIAL COURT ERRED IN DENYING . . . DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE REPRESENTATION FROM TRIAL COUNSEL.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. As the Supreme Court observed in Strickland,
[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).]
Having considered defendant's contentions in light of the record and the applicable law, we affirm the denial of defendant's PCR petition substantially for the reasons detailed at length in Judge Moynihan's oral opinion. The judge's conclusion that defense counsel's handling of the cocaine possession charge was "sound trial strategy" is firmly grounded in the trial record. The record also fully supports the judge's determination that the attorney's closing argument clearly indicated that the concession of guilt was limited to the cocaine possession charge. Finally, the judge properly found that defendant's claim that his attorney did not confer with him concerning this strategy was nothing more than a bald assertion. Under these circumstances, the judge had no need to conduct an evidentiary hearing on defendant's PCR application. Preciose, supra, 129 N.J. at 462.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION