Opinion
DOCKET NO. A-4229-10T3
06-08-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NELSON RUIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Chief Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-04-1101.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Chief Assistant County Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Nelson Ruiz appeals from an October 15, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
In April 2008, defendant was indicted on six counts: first-degree murder, N.J.S.A. 2C:11-3a(1), -3a(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b; third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). On June 26, 2008, defendant entered into a plea agreement with the State and pleaded guilty to the lesser-included first-degree offense of aggravated manslaughter, N.J.S.A. 2C:11-4a, and the second-degree charge of unlawful possession of a handgun, N.J.S.A. 2C:39-5b.
The plea agreement contained no promise as to the sentence defendant would receive. Thus, he faced a sentencing range of ten to thirty years imprisonment for aggravated manslaughter, N.J.S.A. 2C:11-4c, and five to ten years imprisonment for unlawful possession of a handgun, N.J.S.A. 2C:43-6a(2). On August 14, 2008, the court sentenced defendant to eighteen years on the aggravated manslaughter charge, with eighty-five percent of that term to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent term of five years imprisonment on the handgun charge, with three years to be served before parole eligibility as required by N.J.S.A. 2C:43-6c. Defendant did not file a direct appeal from the sentence imposed.
Instead, in October 2009, he filed a pro se application that he designated as a motion for PCR. The court viewed the application as controlled by Rule 3:21-10 for reconsideration and reduction of sentence and denied it by order dated February 1, 2010.
In March 2010, defendant filed a pro se PCR petition alleging ineffective assistance of counsel, among other contentions. The court assigned counsel to represent defendant, and the petition was briefed and argued. On October 15, 2010, the court denied the petition without holding an evidentiary hearing, placing its decision on the record orally.
On appeal, defendant argues:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
POINT II
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
In denying defendant's PCR petition, the trial court indicated it had reviewed police reports and other documentary submissions, both at the time of defendant's sentencing in August 2008 and again at the time of the PCR hearing. The court recited the facts leading to defendant's guilty pleas, which we summarize.
On February 22, 2008, defendant, who was twenty years old, spent the night drinking in Atlantic City with his cousin and the eventual victim of the homicide, Nathan Brackett. Brackett insulted and angered defendant by pressing him to "pimp" defendant's girlfriend as a prostitute. Defendant and Brackett fought outside a bar, apparently without serious injury at that time. Later in the night, the cousin attempted to effect a reconciliation of defendant and Brackett. Another fight commenced, and defendant shot Brackett twice, in the back and in the head. Brackett died. The State alleged that defendant had brought a handgun to the second incident and purposely and knowingly killed Brackett. Defendant claimed that Brackett brought the gun, that he wrested the gun away from Brackett's hand, and that Brackett was then shot.
At defendant's sentencing hearing, the judge found three aggravating factors applicable — aggravating factor three, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); six, the extent and seriousness of defendant's criminal history, N.J.S.A. 2C:44-1a(6); and nine, the need to deter defendant and others from criminal conduct, N.J.S.A. 2C:44-1a(9). The court found four mitigating factors applicable — mitigating factor seven, that defendant did not have a record of indictable convictions, N.J.S.A. 2C:44-1b(7); eight, that defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); nine, that the character and attitude of defendant indicated he is unlikely to commit another offense, N.J.S.A. 2C:44-1b(9); and eleven, that imprisonment of defendant will entail excessive hardship to him and his family, N.J.S.A. 2C:44-1b(11).
While the finding of aggravating factors three and six would often be inconsistent with the finding of mitigating factors seven and nine, the court explained its reasons for applying all of these factors. It found aggravating factors three and six because defendant had a juvenile record and mitigating factors seven and nine because defendant had no adult criminal record and expressed remorse for his conduct. The court assigned "marginal" weight to some of these aggravating and mitigating factors. Overall, the court found the aggravating and mitigating factors to be balanced, and it sentenced defendant to a term of imprisonment two years less than the mid-point of the sentencing range for aggravated manslaughter.
Defendant argues that his attorney's performance at sentencing was deficient because he should have argued for three additional mitigating factors: mitigating factor three, that defendant acted under a strong provocation, N.J.S.A. 2C:44-1b(3); five, that the victim induced or facilitated the commission of the crime, N.J.S.A. 2C:44-1b(5); and six, that defendant was willing to compensate the victim or to perform community service, N.J.S.A. 2C:44-1b(6). As the trial court stated, the last of these mitigating factors has no application to the victim of a murder and conviction on a charge of homicide. With respect to mitigating factors three and five, defense counsel did not designate them by number in his argument at sentencing, but he made the factual arguments that Brackett had instigated the fights and had induced and facilitated his own shooting by bringing the gun and threatening defendant with it. The court considered those arguments but found that there was insufficient provocation or threat of harm, assuming that Brackett had brought the gun to the second incident, for defendant to have shot Brackett in the back and a second time in the head.
Defendant also argues, without elaboration, that his attorney was ineffective because he did not adequately investigate the case, did not pursue self-defense as a strategy to avoid conviction, and did not move to dismiss the indictment. With no proffer of the evidence that defense counsel allegedly failed to gather, defendant has not shown a prima facie case of ineffective assistance of his trial counsel. See State v. Jack, 144 N.J. 240, 254 (1996) (necessity of establishing a prima facie case of ineffective assistance of counsel by presenting evidence to support contentions). Counsel's allegedly unperformed investigatory and procedural tasks must be shown to have at least the realistic potential to bear fruit before defendant has established a prima facie case of ineffective assistance of counsel.
Defendant's claims and arguments did not overcome the presumption that he 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. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694-95, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bore the burden of proving that his attorney's assistance was a violation of his constitutional rights. Loftin, supra, 191 N.J. at 198. His allegations did not satisfy the two-pronged Strickland test, namely, that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. . . . [and] that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see State v. Fritz, 105 N.J. 42, 51-52 (1987).
In a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We find no error in the conclusions of the trial judge that defendant's allegations of deficient performance were not supported by the record of his guilty pleas and sentencing or by the subsequent submissions on the PCR petition.
We also reject defendant's contention that the court erred in dismissing his petition without holding an evidentiary hearing. An evidentiary hearing may be required where matters beyond the trial record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). We review the court's determination to decide the matter without an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, defendant failed to establish a prima facie case of ineffective assistance of counsel, and so, he was not entitled to an evidentiary hearing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION