Opinion
DOCKET NO. A-4524-11T4
03-04-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RUBEN MEJIAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Leone.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0558.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Ruben Mejias appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
In May 2005, defendant Mejias and co-defendant Wilfredo Toribio were indicted by a Passaic County grand jury on four counts arising from the alleged robbery of a courier carrying a large amount of cash. After the court dismissed two of the counts, defendant was tried alone before a jury and found guilty of the two remaining charges: second-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).
Defendant's prior record included five indictable convictions, two of which were for robbery. On the conviction in this case, the court imposed an extended-term sentence of eighteen years imprisonment, with eighty-five percent of the sentence to be served before parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and also five years of parole supervision upon his release from prison.
On direct appeal, we affirmed defendant's conviction and prison sentence but remanded for correction of the parole supervision term to three years. State v. Mejias, No. A-6605-05 (App. Div. July 7, 2008). The Supreme Court then partially granted defendant's petition for certification and remanded to the trial court for reconsideration of the extended-term prison sentence in accordance with State v. Pierce, 188 N.J. 155 (2006). State v. Mejias, 198 N.J. 308 (2008). The trial court resentenced defendant to the same eighteen years of imprisonment with a three-year period of parole supervision. On defendant's second appeal, we affirmed the sentence by order pursuant to Rule 2:9-1. The Supreme Court denied defendant's second petition for certification. State v. Mejias, 205 N.J. 102 (2011).
In our earlier opinion on direct appeal, we summarized the testimony at defendant's trial:
On January 3, 2005, Mr. Mauricio Thiebaud, a 63 year-old employee of World Wide Wholesale Trading, Inc. (World Wide), traveled from Bronx, New York to a tobacco wholesaler known as Pine Lesser & Company (PL&C) in Clifton. Because World Wide agreed to purchase tobacco products in cash, Thiebaud frequently carried large sums of money when he made purchases from PL&C. On this date, Thiebaud was carrying $22,000.
Thiebaud arrived at PL&C and pulled into the driveway. He looked around and saw defendant, who was wearing a gray sweatshirt and jeans, pacing back and forth on Lakeview Avenue beyond the PL&C entrance. Thiebaud waited two minutes then exited his van. Without saying a word, defendant approached Thiebaud and punched him in the face. Defendant continued hitting Thiebaud about the head and ribs. When Thiebaud dropped the money bag he was carrying, defendant grabbed the money, ran toward the street and was picked-up by an approaching gray four-door vehicle with Pennsylvania license plates. Thiebaud ran toward the car and scratched it with a box cutter. Thiebaud saw another man waiting across the street by a green van, who he believed saw the entire incident, but did not come to his aid.
Benjamin Ocampo also witnessed the incident, as he sat in his van across the street from PL&C. Ocampo alerted the police and followed the gray car as it drove away. Initially, a green van with Pennsylvania plates impeded Ocampo's pathway. Ocampo drove around the green vehicle and looked for the gray car. He drove around the block and saw the car had stopped. Ocampo watched the two male occupants exit the car and begin walking. The driver of the gray car, later identified as Toribio, was apprehended by police. Defendant kept walking. When defendant was approached by Officer Napoleone, he took off on foot. Thereafter, defendant was cornered and arrested. The search of defendant's person, incident to arrest, revealed a plastic bag of money stuffed into his waistband.
Ocampo identified defendant as the man who attacked Thiebaud. Also, Thiebaud identified: (1) Toribio as "one of the guys" involved in the incident; (2) the car defendant entered as he left PL&C; (3) the money found on defendant as World Wide's funds; and (4) defendant as his attacker.
When apprehended, defendant was wearing a dark pullover with the word "Brooklyn" across the front. This shirt and a gray hooded sweatshirt were included in the police property inventory when defendant was jailed. Additionally, included among defendant's possessions was a single key.
Defendant testified on his own behalf. He stated he approached Thiebaud to speak to him regarding repayment of a debt owed to Toribio. Toribio offered to pay defendant $1,500 for his assistance. Also, Toribio gave defendant a key to Thiebaud's truck, and told him to "use this if he locks himself in the truck." Defendant explained
he often aided others in this way "to help them with their problems."
As defendant "approached [Thiebaud] to speak to him," he stated Thiebaud pulled a "knife" from his back pocket. Defendant admitted he punched Thiebaud in the head "a few times." Defendant testified he struck Thiebaud in self-defense and continued hitting him until he was "no longer a threat." It was then that defendant noticed two clear bags of money had fallen from the plastic bag Thiebaud held. Defendant grabbed the larger of the two bundles and ran to Toribio's car. When defendant looked back, he saw Thiebaud coming at him with the "knife" in his hand. Defendant saw Thiebaud scratch Toribio's car with the weapon.
Defendant stated he had no intention of using force to obtain payment of Toribio's debt, and he had no idea Thiebaud was carrying tens of thousands of dollars. Defendant admitted he ran from the police "because they all had their guns out and they were like 'freeze.'" Defendant also stated he put the money in the pocket of his hooded sweatshirt, which he threw to the ground as he fled.
[Mejias, supra, slip op. at 3-6.]
After exhausting his direct appeals, defendant filed a PCR petition pursuant to Rule 3:22 contending that his trial attorney was ineffective because he failed to prepare and present adequately a viable theory of self-defense. The trial court heard argument and denied the PCR petition without holding an evidentiary hearing. Defendant now makes the following arguments on appeal of that ruling:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post Conviction Relief.
B. The Defendant Did Not Receive Adequate Legal Representation from Trial Counsel as a Result of Counsel's Failure to Establish an Effective Self-Defense Strategy at Trial, Instead Presenting Alternative Defenses Which Served to Effectively Destroy Any Credibility and Believability a Self-Defense Claim Would Have Had Upon the Jury.
Defendant has also filed a supplemental pro se brief in which he makes the following additional arguments:
POINT I
THE DEFENDANT'S RIGHTS UNDER U.S. CONST. AMENDS. VI & XIV AND N.J. CONST. (1947) ART. I, PAR. 1, 9, 10, WERE VIOLATED BECAUSE THE JURY INSTRUCTION ON SELF-DEFENSE WAS INHERENTLY CONFUSING, CONTRADICTORY, AND IMPERMISSIBLE [sic] SHIFTED THE BURDEN OF PROOF ONTO THE DEFENDANT BECAUSE THE USE OF FORCE IN SELF-PROTECTION WAS NOT ON THE JURY'S VERDICT SHEET.
POINT II
A FULL EVIDENTIARY HEARING IS WARRANTED BECAUSE DEFENDANT HAS MADE A PRIMA FACIE SHOWING THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS. U.S.
CONST. AMENDS. VI & XIV AND N.J. CONST. (1947) ART. I, PAR. 1, 9, 10.
POINT III
COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE AS HE HAD NO THEORY OF THE DEFENSE, AFTER BEGINNING THE CASE AS AN NO INTENT CASE [sic] AND THEN ABRUPTLY SHIFTED TO THE APPARENT DEFENSE OF CONSPIRACY WITHOUT ADEQUATE INVESTIGATION AND WITHOUT NOTICE OF SELF DEFENSE TO THE COURT AND THE STATE.
In considering a PCR, we begin with a presumption that defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Loftin, supra, 191 N.J. at 198.
In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the Court identified a two-part test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performanceTo satisfy the second part of the Strickland test, "defendant must show that there is 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. The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Here, defendant argues his trial attorney was ineffective because he failed to formulate a consistent defense strategy and failed to present competently defendant's claim that he acted in self-defense when he punched and beat the victim. But in fact, defendant testified and presented his claims of self-defense. He had no other witnesses to support that defense. His trial attorney wove defendant's self-defense testimony, tenuous as it was, into an overall defense theory of the case. He argued to the jury that the robbery was a set-up as a way to pay a debt and that Thiebaud had prior knowledge of the incident.
Standing alone, defendant's testimony that he was defending himself had no reasonable chance of success. Defendant admitted that he was acting as a highly-paid enforcer for an alleged debt, admitted that he had a prior criminal record for serious offenses, and admitted that he beat the older, smaller victim. Even if the jury were to believe defendant's testimony that Thiebaud brandished a knife before defendant struck him, his purpose in approaching Thiebaud and initiating the confrontation contradicted his theory of self-defense. Moreover, the eyewitness Ocampo described an assault rather than a man acting in self-defense. He did not support defendant's version that Thiebaud initiated a fight.
Faced with little to work with, defense counsel attempted to dovetail defendant's testimony with a suggestion to the jury that the victim owed a debt and was complicit in the staging of a robbery. On the witness stand, however, Thiebaud repeatedly testified that he had no prior contacts with defendant or co-defendant Toribio and did not owe the latter any money, and the jury apparently believed him.
Defense counsel also pursued a strategy of giving the jury the option of convicting defendant only of a third-degree theft charge instead of second-degree robbery. This strategy attempted to account for defendant's possession of Thiebaud's bag of cash in his waistband when he was apprehended minutes later. Defendant could not claim that he took the bag of cash as of right, even if his self-defense testimony were to be believed.
"[A] reviewing court must assess the performance of counsel with a 'heavy measure of deference to counsel's judgments.'" State v. Difrisco, 174 N.J. 195, 220 (2002) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Ineffective assistance of counsel is not proven by showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. Ibid.; see State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003).
Here, the jury found defendant guilty because the evidence was overwhelming. His pure self-defense theory had even a lesser chance of success than defense counsel's futile effort to inject some doubt into the victim's version of what actually occurred. All the evidence, including that admitted or volunteered by defendant, provided ample opportunity for the prosecution to argue that the essential elements of the crime of robbery had been proven, including that defendant used force in the course of taking property to which he had no right. N.J.S.A. 2C:15-1.
In State v. Arthur, 184 N.J. 307 (2005), the New Jersey Supreme Court stated: "In determining whether defense counsel's alleged deficient performance prejudiced the defense, '[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings.'" Id. at 319 (alteration in original) (quoting Stickland, supra, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697). The Court reconfirmed the Strickland standard and emphasized that "[a] reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." Ibid. Here, defendant's claims do not undermine our confidence in the outcome of his trial. We agree with the trial court's conclusion that defendant simply lacked a credible defense in the face of very strong evidence of his guilt.
In addition, the trial court did not err in deciding the matter without holding an evidentiary hearing. An evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined. See State v. Porter, 216 N.J. 343, 354-55 (2013); State v. Preciose, 129 N.J. 451, 462 (1992). The trial court has discretion to dispense with an evidentiary hearing "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); accord Preciose, supra, 129 N.J. at 462-64. The trial court did not abuse its discretion in proceeding without an evidentiary hearing.
Additional allegations of trial error argued in defendant's pro se brief refer to matters that were or could have been raised in the trial court or on direct appeal. Such claims are barred in a PCR petition by Rules 3:22-4 and -5. See State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), modified on other grounds, 162 N.J. 240 (2000).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION