Opinion
DOCKET NO. A-5125-12T2
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESUS COLON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-1099. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jesus Colon appeals from an order entered by the Law Division on February 20, 2013, denying his petition for post-conviction relief ("PCR"). We reverse and remand for an evidentiary hearing.
I.
Defendant was charged under Union County Indictment No. 06-11-1099, with second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2b (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(6) (count two); and third-degree joyriding, N.J.S.A. 2C:20-10c (count three). Thereafter, the court granted the State's motion to dismiss count three. Defendant was tried before a jury on the other counts.
At the trial, evidence was presented which established that shortly after midnight on September 1, 2006, Officer Paolo Fidalgo ("Fidalgo") and another officer of the Elizabeth Police Department were patrolling downtown Elizabeth in a marked police vehicle. The officers stopped at an intersection and observed a car cross the intersection at a high rate of speed. Fidalgo described the driver as a "[p]ossible Hispanic male with facial hair."
Fidalgo and his partner pursued the car and activated the lights on their patrol vehicle. The vehicle they were pursuing gained speed and ran a red light. Fidalgo estimated that the car was traveling at fifty miles per hour in a speed zone allowing vehicles to travel thirty-five miles per hour. After running the red light, the driver apparently lost control and the car went into a ditch.
Fidalgo and his partner exited their patrol vehicle. They noticed smoke or fire coming from beneath the disabled vehicle. Fidalgo said there had been three occupants in the vehicle. The officers drew all the passengers to safety away from the car.
Fidalgo identified defendant as the person who was in the driver's seat. He testified that defendant was the only occupant of the car who had facial hair. When the officers saw him, defendant was positioned over the area between the driver's seat and the passenger seat. He had his legs in the driver's seat.
Luis Benitez ("Benitez") had been a passenger in the disabled car. He testified on defendant's behalf. Benitez said he had known defendant since they were "kids" and he described their relationship as being "like family."
Benitez said that, on the night of the incident, he had been walking down the street. It was his birthday and he was a "little intoxicated." Benitez saw defendant on the street and flagged him down. Benitez testified that defendant had not been driving the car during the chase. He said a juvenile, whose name he did not know, had been driving. Benitez was in the rear seat, behind the driver, and defendant was on the passenger's side. Benitez said the juvenile drove through the red light, and the police pursued them. The police chased the car for less than fifteen minutes, and the car then crashed into a bridge and light pole. Benitez injured his leg in the crash.
The jury found defendant guilty of eluding (count one) and aggravated assault (count two). On count two, the judge sentenced defendant to ten years of incarceration, with an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed a concurrent, ten-year term on count one.
Defendant appealed and raised the following arguments:
1. Defendant's Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1, Par. 1 of the New Jersey Constitution was violated by the Prosecutor's Misconduct.
a. The Prosecutor's summation expressing his belief that [Officer] Fidalgo testified credibly substantially prejudiced Defendant's fundamental right to have the jury fairly evaluate the merits of his defense.
b. The Prosecutor's summation implicitly expressing his belief that Defendant's Witness was not credible substantially prejudiced [D]efendant's fundamental right to have the jury fairly evaluate the merits of his defense.
2. Because The Jury Was Permitted To Infer That Defendant's Conduct Created A "Risk of Death Or Injury" If It Determined That His Conduct Violated Any of The Motor Vehicle Offenses Set Forth In Chapter 4 of Title 39, And Such Risk Is An Element Of The Second
Degree Crime of Eluding, The Trial Court Committed Reversible Error When It Failed To Define And Delimit The Underlying Motor Vehicle Offenses.We affirmed defendant's conviction in an unpublished opinion. State v. Colon, No. A-6370-06 (App. Div. April 14, 2009).
II.
On March 23, 2012, defendant filed a pro se petition for PCR, alleging that he had been denied the effective assistance of counsel, and the trial court erred in its assessment of the aggravating and mitigating factors at sentencing. The court appointed counsel to represent defendant, and PCR counsel filed a brief arguing that defendant had been denied the effective assistance of counsel because defendant's trial attorney failed to properly investigate and prepare the case.
PCR counsel asserted that, in September 2012, the juvenile involved in the incident, Jose Rentas ("Rentas"), had been contacted. Rentas said he was the driver of the car, and defendant was a passenger in the car. According to counsel, defendant's trial attorney never contacted Rentas, even though Rentas claimed he had been the driver of the car that eluded the police.
PCR counsel stated that Rentas told the police he was the driver immediately after he exited the car after the accident. He said that Rentas would have testified at trial that he was the driver of the vehicle involved in the incident, and defendant's attorney never approached him and asked if he would testify on defendant's behalf.
In support of the petition, defendant also submitted a memorandum from Sergeant Deborah Baum ("Baum") to an assistant prosecutor. In the memo, Baum stated that on November 21, 2006, she had been assigned to take a statement from Rentas regarding this matter. Rentas was seventeen years old at the time. He said he did not want his mother to be present for the interview. Rentas told Baum he had been driving the car involved at the time of the police chase.
Baum brought Rentas's mother into the office with Renta. She explained that a video statement was going to be taken. She advised Rentas of his Miranda rights. Rentas said he wanted to have an attorney, and Baum terminated the interview. Rentas's mother inquired as to how to contact a public defender.
She asked if her son could come back and give a statement after speaking with an attorney, and Baum said that was possible. Rentas's mother asked if her son could be charged if he admitted to an offense. Baum explained that anyone who gave a statement admitting to an offense can be charged.
On February 8, 2013, the PCR judge heard oral argument from counsel and on February 12, 2013, the judge placed an oral decision on the record. The judge determined that defendant's claim of ineffective assistance of counsel was not barred by Rule 3:22-4, which precludes a defendant from raising claims that could reasonably have been raised in a prior proceeding. The judge further found that defendant had not presented a prima facie case of ineffective assistance of counsel, and that an evidentiary hearing was not required. The judge entered an order dated February 20, 2013, denying PCR. This appeal followed.
On appeal, defendant argues that the PCR court erred by refusing to conduct an evidentiary hearing on his petition. He contends he presented a prima facie case of ineffective assistance of counsel because his trial attorney never contacted Rentas, even though Rentas had informed the investigators that he had been driving the car at the time the offenses occurred. In addition, defendant incorporates by reference the claims that defendant raised in his pro se PCR petition.
III.
We turn first to defendant's contention that the PCR court erred by failing to conduct an evidentiary hearing on his petition.
An evidentiary hearing on a PCR petition is required when a defendant presents a prima facie case for relief, there are material issues of fact that cannot be resolved based on the existing record, and the court determines that an evidentiary hearing is needed to resolve the claims raised. State v. Porter, 216 N.J. 343, 354 (2013) (citing Rule 3:22-10(b)).
A defendant establishes a prima facie case for relief if defendant demonstrates "'a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.'" Id. at 355 (quoting Rule 3:22-10(b)).
In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the Court established a two-part test for considering claims of ineffective assistance of counsel raised under the Sixth Amendment to the United States Constitution. In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court adopted the Strickland test for claims of ineffective assistance of counsel raised under the New Jersey Constitution.
Under Strickland, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Here, the PCR judge found that defense counsel's pre-trial investigation and strategic decisions were not deficient and that they did not fall outside of the wide range of reasonably competent counsel. The judge stated that defense counsel "made an informed decision" not to call Rentas as a witness. The judge stated that, once that decision was made, there was little to be gained by interviewing Rentas, since Rentas's off-the-record statements could be presented by other evidence and witnesses that were presented at trial in a manner that was potentially more credible.
The judge observed that defendant reasonably could have concluded that it was highly unlikely that Rentas would be a witness at trial "with or without being interviewed" because, although he made a statement to the police, he had refused to provide a videotaped statement inculpating himself on the record. Moreover, defense counsel could present Rentas's statement through Fidalgo's testimony.
The judge also found that defendant had not established he was prejudiced by counsel's failure to interview or call Rentas as a witness at trial. The judge stated that defendant had merely established that counsel's alleged errors had "some conceivable effect on the trial." The judge observed, however, that there was no guarantee that Rentas would waive his Fifth Amendment right against self-incrimination and testify at trial. Thus, the judge found that defendant had not shown a reasonable probability the result would have been different if Rentas had been called as a witness.
We are convinced that the PCR judge erred by resolving these claims without conducting an evidentiary hearing. The judge assumed defendant's trial attorney made a strategic decision not to call Rentas as a witness. There is no evidence to support that finding. Indeed, on this record, we cannot discern whether counsel made a deliberate strategic decision that Rentas would not testify and if he did, the basis for that decision.
The judge assumed that it was unlikely Rentas would inculpate himself at trial. Indeed, as the judge pointed out, Rentas told the police he had been driving the vehicle involved but refused to give a videotaped statement. Moreover, Baum told Rentas's mother that anyone who admitted to the commission of an offense could be charged. In addition, Rentas terminated the interview after having been informed of his Miranda rights.
However, in the affidavit provided to the PCR court, PCR counsel stated that he had spoken to Rentas and Rentas told him that he was the driver and would have testified to that fact if he had been called as a witness at defendant's trial. If that is the case, it would cast an entirely different light upon defense counsel's decision not to call or interview Rentas before the trial. If credible, Rentas's statement suggests that counsel's decision may have fallen outside the wide range of reasonably competent counsel.
In addition, testimony by defense counsel and Rentas may warrant reconsideration of the PCR judge's assumption that it was not reasonably probable the result of the trial would have been different if Rentas had been called as a witness and he was willing to inculpate himself as the driver of the vehicle involved in the incident. As we have noted, Benitez testified that a juvenile had been driving the car, but he did not know the juvenile's name.
Fidalgo testified that three persons had been in the car. After the crash, Fidalgo and his partner approached the vehicle and ascertained that defendant had been the driver. At that time, defendant was "crunched over" on the driver's side. Benitez and the juvenile were outside the car. In his cross-examination, counsel elicited the fact that Fidalgo had prepared a report concerning the incident, which stated that, after the crash, the officers had "cleared the vehicle of all suspects and moved them to safety." Fidalgo conceded that the juvenile, who he identified, was a suspect.
Fidalgo did not state that Rentas had admitted he had been driving the car. However, according to PCR counsel, Fidalgo had testified before the grand jury that Rentas had claimed to be the driver, and Benitez also had stated that Rentas had been driving the involved vehicle. We cannot say, based on this record, that it was not reasonably probable the result of the trial would have been different if Rentas had testified he was the driver.
Thus, we are convinced that defendant presented a prima facie case of ineffective assistance of trial counsel, and the claims could not be resolved without an evidentiary hearing. In our view, the testimony of defense counsel and Rentas is critical to resolving the claims raised. We therefore remand the matter to the trial court for an evidentiary hearing on this claim.
IV.
In his appeal, defendant again raises the issues that were raised in his pro se petition. In his initial petition, defendant alleged that trial counsel was ineffective because counsel: (1) failed to make a timely objection to the prosecutor's remarks or comments; (2) failed to object to the jury charge; (3) did not object or ask the judge to charge the jury on his election not to testify; (4) failed to object to the trial court's supplemental instruction; (5) failed to object to the trial court's instruction to jury that one of Benitez's statements was hearsay; and (6) did not interview other potential witnesses. In addition, defendant alleged that the trial judge erred in his assessment of the aggravating and mitigating factors at sentencing.
The PCR judge did not address any of these claims. On remand, the court should determine whether any of the claims are barred by Rule 3:22-4, if the claim could reasonably have been raised in the prior appeal, or Rule 3:22-5, if previously and expressly adjudicated. The judge should address the merits of any claim that is not subject to these or any other procedural bar.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).