Opinion
DOCKET NO. A-2668-10T2
06-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABISMAL ARROYO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Deputy Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-09-3855.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Deputy Chief Assistant Prosecutor, of counsel and on the brief).
Defendant Abismal Arroyo appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points on appeal:
POINT ONEWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
POINT TWO
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT
POINT THREE
THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT DEFENDANT'S CLAIM THAT HE ACTED IN DEFENSE OF OTHERS COULD NOT HAVE MITIGATED HIS CULPABILITY
On June 6, 2005, defendant pled guilty to count one of Camden County Indictment No. 04-09-3855, as amended from first-degree murder, N.J.S.A. 2C:11-3, to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). Pursuant to the plea bargain, the State agreed to recommend an eighteen-year sentence of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant was placed under oath and told Judge Samuel D. Natal that he was voluntarily waiving his right to a trial and all that encompassed, understood the terms of the plea bargain, was satisfied with the services of his attorney, and no one was forcing him to plead guilty. The following colloquy took place between defendant and his attorney:
Counsel: [W]ere you at home on [February 28, 2004]?Defendant also admitted that the shooting occurred at "midday" on a Saturday afternoon on the "500 block" of 9th Street in Camden. Judge Natal then asked:
Defendant: Yes.
Counsel: In Camden?
Defendant: Yes.
Counsel: And was there a disturbance at your home that day?
Defendant: Yes.
Counsel: The people eventually left and then came back?
Defendant: Yes.
Counsel: And you and I have discussed your actions that day?
Defendant: Yeah.
Counsel: In fact, did you go into your residence [and] get a weapon?
Defendant Yes.
Counsel: What kind of weapon was it . . . ?
Defendant: I don't recall what type of weapon it was.
Counsel: Was it a handgun?
Defendant: Yes.
Counsel: A pistol?
Defendant: Yes.
Counsel: [D]id there come a time when you shot that gun?
Defendant Yes.
Counsel: And who were you shooting towards?
Defendant: The car that was passing by.
Counsel: And did you know the people in the car were the people that caused the disturbance at your home earlier?
Defendant: Yes.
Counsel: And as a result of you shooting at that car, you're aware that an innocent bystander . . . was shot . . . ?
Defendant: Yes.
Counsel: . . . [I]t is true that you shot [the person] accidentally?
Defendant: Yes.
Counsel: Do you recognize that your conduct in shooting at a car with people around, innocent bystanders, is reckless conduct?
Defendant: Yes.
Counsel: And more than that, it's reckless conduct under circumstances manifesting extreme indifference to human life?
Defendant: Yes.
Counsel: And do you agree that that's because of the high risk that innocent people . . . could get injured when you shoot in a city?
Defendant: Yes.
. . . .
Counsel: And in fact, the discovery in this case reflects that those people in the car threw rocks and bricks at your home earlier in that day, is that correct?
Defendant: Yes.
Counsel: And you recognize that by pleading guilty today, you're giving up your right to assert self defense or defense of the property or defense of others?
Defendant: Yes.
Counsel: And is that because you recognize from your conversations with me because you escalated the amount of force[] you --
Defendant: Yes.
Counsel: -- do you understand that as a matter of law, you're not allowed to use deadly force in self defense or defense of property or others --
Defendant: Yes.
Counsel: -- unless that level of force was used against you?
Defendant: Yes.
Counsel: So are you . . . giving up that self defense or defense of others and defense of property today?
Defendant: Yes.
Counsel: [D]o you have any questions at all about this pleading?
Defendant: No.
Judge: Mr. Arroyo, when you fired the gun at the car, it didn't matter to you whether anyone lived or died as a result of that conduct, is that correct, [s]ir?Defendant told the judge he understood everything that had occurred in court and his statements were truthful.
Defendant: Yes.
On July 15, 2005, Judge Natal sentenced defendant in accordance with the plea bargain. Defendant's direct appeal was limited to the sentence imposed. We concluded that Judge Natal erred in finding aggravating factor twelve, N.J.S.A. 2C:44-1(a)(12), and remanded for entry of an amended judgment of conviction, but otherwise affirmed the sentence. State v. Arroyo, No. A-3921-07 (App. Div. Apr. 3, 2009). An amended judgment of conviction was filed on April 8, 2009.
On February 19, 2010, defendant filed a pro se petition for PCR accompanied by a brief. He argued that trial counsel was ineffective because he failed to conduct adequate investigation and "made no argument whatsoever" at sentencing. Defendant sought an evidentiary hearing and further argued he should be permitted to plead guilty to second-degree manslaughter. Appointed PCR counsel also filed a brief incorporating these arguments and specifically claiming that trial counsel failed "to investigate and raise a claim of defense of others."
In a supplemental certification, defendant stated there was a large party for his grandfather the night before the shooting. Three individuals, the Sanchez brothers, were angered when they were asked to leave. Early the next morning, one of the brothers came to the house, punched defendant in the face and threatened to return. Shortly thereafter, defendant heard loud noises and his mother yelling. He believed it was gunfire so he grabbed his gun. Defendant saw his mother with a "red mark on her face," and she told him that a man had struck her outside the house. Defendant went outside and saw the Sanchez brothers near the open trunk of a car. Defendant was "very scared" and "shot at the men/vehicles."
Defendant also stated that trial counsel visited him "on a few occasions" in jail, the meetings were "rushed," and he "felt that counsel did not thoroughly and fully discuss all the legal and evidentiary issues." Defendant admitted he was shown discovery and that his lawyer discussed the "doctrine of self defense/defense of others." Defendant stated that trial counsel told him either defense "would not be possible." Trial counsel failed to interview witnesses, specifically his mother and grandfather.
Defendant's mother also filed a certification in which she claimed that, on the day of the shooting, her son was punched by a man, who later returned with others. They were carrying bats, bottles and bricks, and one man had a knife. She confronted one of the men outside, and he punched her in the face. When she went back into the house, defendant saw she had been punched and went outside. She claimed trial counsel never contacted her.
The hearing on defendant's petition took place before Judge Natal. PCR counsel "defer[red] to the papers that have already been presented" but provided a spirited response to the judge's extensive questioning.
Judge Natal reviewed the transcript of defendant's guilty plea. He rejected any argument regarding defendant's sentence, citing Rule 3:22-5 and our prior order affirming the sentence.As to defendant's claim that trial counsel was ineffective for failing to investigate and raise self-defense or defense of others, Judge Natal cited the plea colloquy we have quoted above. The judge concluded trial counsel did not provide ineffective assistance because he "not only advised [defendant] regarding the forfeiture of defense of others, but he had . . . on previous occasions discussed the applicability with the defendant reviewing the discovery and the available witnesses for this defendant."
Judge Natal also concluded that under the facts presented, defendant could not avail himself of either self defense or defense of others "because he did not meet the statutory requirements." The judge noted, "Nothing suggests [d]efendant had any reasonable belief that deadly force was necessary to protect anyone from . . . death or [serious] bodily injury at the time he fired the gun." Judge Natal concluded that defendant had not made a prima facie case warranting an evidentiary hearing and denied the petition. This appeal followed.
Before us, defendant contends he should have been granted an evidentiary hearing, trial counsel failed to adequately investigate applicability of the "defense of defense of others," and Judge Natal erred in concluding that the defense was unavailable because "it is not clear that [d]efendant was required to retreat prior to using deadly force." We conclude these arguments lack sufficient merit to warrant extensive discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Natal in his oral opinion. We add the following brief comments.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated 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). First, he "must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Ibid. A defendant must show by "a reasonable probability" that the deficient performance affected the outcome of the trial. Id. at 58.
While a "claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2012); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [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.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).
Defendant has failed to establish the first prong of the Strickland/Fritz test. Any claim he now makes about trial counsel's failure to investigate or discuss available defenses is belied by the transcript of the plea proceedings. The after-the-fact statements contained in defendant's certification are merely bald assertions to the contrary.
Judge Natal also correctly concluded that defendant failed to meet the second prong of the Strickland/Fritz test. When he pled guilty, defendant admitted firing at "[t]he car that was passing by." In his certification, defendant stated that he fired the shots when the Sanchez brothers were near the open trunk of a car. We need not consider the extensive discovery furnished by the State as part of the appellate record which clearly belies any claim that defendant fired in defense of others, as excused by N.J.S.A. 2C:3-5. Based upon defendant's own statements, he has failed to demonstrate "a reasonable probability" that had the defense been asserted, the outcome of the proceedings would have been altered. Fritz, supra, 105 N.J. at 58.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELLATE DIVISION
Rule 3:22-5 provides, "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 appeal taken from such proceedings."