Opinion
DOCKET NO. A-2980-12T4
07-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OVIDIO PALACIOS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. 09-03-0586.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant pled guilty pursuant to a plea agreement to aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and aggravated arson, N.J.S.A. 2C:17-1(a)(1), arising from his beating and strangling his wife and then setting her and her residence on fire. He appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was provided with the assistance of a Spanish interpreter during the plea hearing. He repeatedly stated he had little recollection of the events of June 10, 2008, but made the following admissions:
Defense Counsel: Okay, And on that day, on that day did you cause the death of your wife by striking her which resulted in her dying? I know you may have little or vague recollection of it, but do you not deny that that is what happened?
Defendant: Yes.
. . . .
Defense Counsel: [W]e're just asking if you are admitting to the fact that this is an act that you committed?
Defendant: Yes.
Defense Counsel: Okay. After you committed that act, did you not attempt to burn yourself, the room and the room and everything, and the house with gasoline which you remember?
Defendant: I put gasoline on myself, I wanted to — to burn myself.
Defense Counsel: But also gasoline went on the house and the bedroom went on fire?
Defendant: Yes, yes her bed caught fire. That's what they say, I don't remember.
Defense Counsel: Okay, but you do agree that that is what happened?
Defendant: Yes.
. . . .
Defense Counsel: But other people lived in the house too. Your children lived in the house?
Defendant: No, my children didn't live there. One of them lived with us.
Defense Counsel: Well one — your son lived there. Other people lived in that home.
Defendant: Yes, my son, my son lived with me.
Defense Counsel: Okay. And you started a fire in that house where other people lived.
Defendant: I can't say no, I didn't I didn't do it intentionally.
Defense Counsel: But you did it.
Defendant: I did it but it wasn't my intention.
. . . .
Defense Counsel: Do you disagree that pursuant to all the reports and to the witnesses, there were people in the house, because they did live in the house?
Defendant: A lot of people lived there.
Prosecutor: Is it true that you tried to burn yourself after you killed your wife? That is the reason that there was a fire there that night, that day?
Defendant: Yes.
. . . .
Defense Counsel: [B]ut do you take responsibility for her death? You are the responsible person?
Defendant: Well since I was the only one there.
Defense Counsel: Judge, I would ask the Court to take this as a factual basis mainly for the reason that I think we've known all along that he, which he did, that he had problems
recalling but he has assumed responsibility, said he was the only one there, that his wife died as a result of his actions. Whether he can describe it or not is I think perhaps not really material at this point. But he has essentially owned up and, to the responsibility of taking his wife's life. And certainly of setting the fire.
Because of defendant's claimed lapses in memory, the trial court, the prosecutor, and defense counsel discussed incorporating the autopsy report and the police report to supplement his statements regarding a factual basis. Defendant was questioned directly as to whether he consented to this procedure and agreed.
Prior to accepting the guilty plea, the trial court asked defendant, "Do you understand that when you, after you are done serving your sentence, that you will be deported?" Defendant replied, "Yes and I understand." The deportation consequences of defendant's guilty plea were also set forth on the plea form, which was provided to defendant in Spanish. Question 17b and c of the plea form state defendant's plea to aggravated manslaughter will result in his deportation. When the trial judge asked defendant whether he read, understood, and signed the plea form, defendant answered in the affirmative.
Defendant was sentenced on the aggravated manslaughter count to twenty-five years with a parole ineligibility period of eighty-five percent of that term, and a concurrent ten year term for aggravated arson. Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed his sentence by order. The Supreme Court denied both a petition for certification and a motion for reconsideration.
Defendant filed a pro se PCR petition, which was later amended and supplemented with a brief upon the appointment of counsel. The petition was denied and defendant raises the following issues in his appeal:
POINT I
DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.
A. INEFFECTIVE ASSISTANCE AT THE PLEA HEARING.POINT II
B. THE DEPORTATION CONSEQUENCES OF THE PLEA.
DEFENDANT'S POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
Defendant contends his plea counsel was ineffective because he permitted him to enter a guilty plea that lacked an appropriate factual basis and because his counsel failed to advise him of the deportation consequences of his guilty plea. Neither argument has merit.
As defendant notes, to be guilty of aggravated manslaughter, an actor must recklessly cause death under circumstances manifesting an extreme indifference to human life. N.J.S.A. 2C:11-4(a)(1). With defendant's explicit consent, the autopsy report and the police report were incorporated into the record for the purpose of establishing a factual basis. The report of the police officer who responded to the fire included statements by defendant's son:
Jose A. Palacios had come home and found his mother in the bed with the covers over her. He then pulled back the covers to see his mother . . . beaten up, with her tongue hanging out of her mouth.The report stated further that Jose left the house to get his older brother and, as he was going down the stairs, he saw his father "coming into the residence holding a can." When Jose returned with his brother, "[t]hey went upstairs and saw their mother on fire in the bed[.]" The autopsy report reveals that defendant's wife died of strangulation and blunt force trauma. These facts are more than sufficient to satisfy the essential elements of aggravated manslaughter. See State v. Campfield, 213 N.J. 218, 231 (2013).
Defendant also contends that his plea to aggravated arson lacks a sufficient factual basis because he did not admit he recklessly placed another person in danger of death or bodily injury or recklessly placed a building or structure of another in danger of damage or destruction. However, defendant admitted that "a lot of people lived there" and that he poured gasoline over himself and his wife and started the blaze. This argument lacks any merit.
Also lacking in merit is defendant's contention that he was denied the effective assistance of counsel because he was not advised of the deportation consequences of his guilty plea. The judge questioned defendant directly, stating, "Do you understand that when you, after you are done serving your sentence, that you will be deported?" Defendant replied, "Yes and I understand."
To be entitled to an evidentiary hearing on a PCR petition, a defendant must present a prima facie case of ineffective assistance of counsel, State v. Preciose, 129 N.J. 451, 462 (1992), which demonstrates "a reasonable likelihood that his or her claim will ultimately succeed." State v. Marshall, 148 N.J. 89, l58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Preciose, supra, 129 N.J. at 463.
To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05 N.J. 42, 52 (l987).
We note that defendant has not presented a colorable claim of innocence or presented a certification in which he stated that if the alleged deficiencies in counsel's performance had not been present, he would not have entered guilty pleas. We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR judge correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.
In this appeal, defendant also contends he was denied the effective assistance of PCR counsel because the brief submitted by counsel failed to address relevant legal precedents affecting the deportation consequences claim; did not address the deficiencies in the plea colloquy; and did not argue that appellate counsel was ineffective for failing to raise the inadequacy of the factual basis for the guilty plea. We have considered each of these issues and found them lacking in merit. Therefore, defendant cannot prevail on a claim that his PCR counsel was ineffective.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION