Opinion
DOCKET NO. A-3776-11T3
10-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEONARDO VILLEGAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief; Robert J. Wisse, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-03-0276. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief; Robert J. Wisse, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by HOFFMAN, J.A.D.
Defendant Leonardo Villegas appeals from the March 16, 2012 Law Division order denying his petition for post-conviction relief (PCR). The court found defendant failed to establish a prima facie showing of ineffective assistance of counsel, and, accordingly, concluded defendant was not entitled to an evidentiary hearing. We affirm.
I.
The procedural and factual history is set forth at length in State v. Villegas, No. A-0302-05 (App. Div. April 15, 2008) (slip op.). Therefore, we provide a summary to place this opinion in context.
On September 30, 2003, at approximately 2:30 p.m., Jorge Gonzalez and W.M. were smoking crack cocaine in a car parked on Summer Street in Paterson. Gonzalez allegedly owed defendant money. A male teenager saw Gonzalez, and walked into a nearby barbershop, where defendant was getting his weekly haircut from his regular barber, F.T. The young man informed defendant that Gonzalez was outside.
Defendant left the barbershop mid-haircut, and the young man and F.T. followed. Outside, the young man pointed out Gonzalez to defendant, and asked, "What do you want me to do, get [Gonzalez] out of the car and beat him up?" Defendant replied, "I'll take care of that." Defendant walked to his car, where he retrieved and donned a hooded sweatshirt and a latex glove. He then approached Gonzalez' car and asked Gonzalez for the money owed. Gonzalez said he did not have the money, and would pay defendant later. Defendant demanded the money twice more, and Gonzalez said, "So what [are] you [going to] do? . . . What do you want me to do, to get my gun?"
Medical examiners investigating the scene found a black-handled knife on Gonzalez, but no gun.
Defendant then pulled out a handgun and fired multiple shots, striking Gonzalez at least five times, and killing him. W.M. fled the car, and ran into a nearby park. Defendant then went back to the barbershop, and demanded re-entry. F.T. eventually complied, but refused to finish defendant's haircut. Defendant exited the barbershop through the back door.
Police interviewed F.T. once on the evening of the shooting, and once approximately one year later. He provided two formal statements, identified defendant's photograph, and told police he had known defendant for approximately four years. At trial, F.T. again identified defendant as the shooter. Police also interviewed J.L., the barbershop owner who worked at the chair next to F.T. J.L. told police he saw F.T.'s customer leave the barbershop just before the shooting. J.L. also corroborated F.T.'s account that the shooter entered the barbershop after the shooting and left again through the rear door. J.L. stated he was unable to identify the shooter due to the hooded sweatshirt.
W.M. gave a statement, and picked defendant out of a photo lineup, stating, "[T]his really looks like the guy but I'm not sure[.]" At trial, W.M. testified defendant was the man who shot Gonzales. M.T., another bystander, gave a sworn statement, and also picked defendant out of a photo lineup. However, at trial, M.T. recanted, testifying she had never seen defendant before, and did not see the shooter in the courtroom. She testified defendant "look[ed] a little like" the person in the photo identification, but was "fat[ter]."
D.S. was in the area after the shooting. After his arrest on an unrelated bench warrant, D.S. provided information to police, and identified defendant's photograph. At trial, D.S. testified he saw the crime scene, called his friend L.A. to find out what happened, and they arranged to meet in a van outside L.A.'s home. L.A., D.S., defendant, and T.M. met in the van. Defendant was "hyper and scared," and had "half a haircut" and a gun. Defendant explained he had given Gonzalez money to purchase a gun, but Gonzalez had "disappeared." Defendant said that while he was getting his haircut, he learned Gonzalez was sitting in a nearby car. He argued with Gonzalez, and then "whatever happened, happened." He also expressed frustration with F.T., and stated he would "take care of him[.]" L.A. took the gun from defendant's lap and suggested defendant turn himself in.
Defendant eventually surrendered to police. At trial, he testified and admitted getting a haircut in the barbershop at 2:30 p.m. on the day of the shooting. He denied knowing or shooting Gonzalez. He testified he left the haircut to unsuccessfully attempt to purchase marijuana, and did not return. Defendant also denied knowing, meeting with, or making incriminating statements to D.S.
Defendant relied primarily on an identification defense, arguing he did not know or shoot Gonzalez. The jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count two); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three). After trial, defendant also pled guilty under a separate indictment to third-degree possession of marijuana with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a.
The trial court merged count two into count one and sentenced defendant on count one to a sixty-five year term of imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a consecutive five-year sentence on count three, and, on the marijuana plea, a concurrent three-year term of imprisonment with a one-year parole disqualifier.
Defendant appealed, arguing, among other things, that his counsel should have requested jury instructions regarding self-defense and manslaughter. On April 15, 2008, we affirmed the conviction and the sentence, finding the evidence did not support a claim of self-defense or provocation. Villegas, supra, slip op. at 18.
On July 20, 2009, defendant filed the instant petition for PCR. On March 16, 2012, after briefing and oral argument, the Law Division denied the petition, finding defendant was not entitled to an evidentiary hearing. This appeal followed, with defendant asserting the following arguments for our consideration:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS.
A. Trial Counsel Failed To Have An Exculpatory Witness Testify.
B. Trial Counsel Failed to Provide A Qualified Spanish Interpreter At Their Pretrial Meetings.
II.
The determination on whether to hold an evidentiary hearing on a claim of ineffective assistance of counsel is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) provides:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate 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.Therefore, if, with the facts viewed in a light most favorable to the defendant, there is a reasonable probability the defendant's PCR claims are meritorious, then he or she is entitled to an evidentiary hearing. State v. Jones, ___ N.J. ___, ___ (2014) (slip op. at 15). However, "[a] court shall not grant an evidentiary hearing: . . . if [it] will not aid the court's analysis of the defendant's entitlement to [PCR]; [or] if the defendant's allegations are too vague, conclusory or speculative[.]" R. 3:22-10(e).
The Strickland test, articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), governs claims of ineffective assistance of counsel. See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the federal Strickland test). A defendant must show (1) trial counsel's performance was objectively deficient, and (2) "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
In every criminal trial, there is a "'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his [or her] responsibilities." State v. Hess, 207 N.J. 123, 147 (2011) (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "'[I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is 'virtually unchallengeable.'" State v. Nash, 212 N.J. 518, 542 (2013) (alteration in original) (quoting State v. Chew, 179 N.J. 186, 217 (2004)). However, a presumption of prejudice is appropriate where there are "egregious shortcomings in the professional performance of counsel[,]" Fritz, supra, 105 N.J. at 61, or an "[a]ctual or constructive denial of assistance of counsel altogether . . . ." Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696.
A.
As to defendant's first claim, evidence not submitted for admission at trial indicated L.A. would testify, contrary to D.S.'s account, that defendant never met with D.S. or inculpated himself. Nevertheless, after interviewing L.A., defendant's trial counsel chose not to call him at trial.
Anticipating the present petition for PCR, the trial court asked defendant's trial counsel to put his rationale on the record. Counsel stated he was concerned cell phone records would not corroborate L.A.'s account, and that calling L.A. would prompt the State to call T.M. to corroborate D.S.'s account. Counsel felt that D.S.'s testimony was relatively unimportant, and that the potential for corroboration by T.M., as well as the increased attention on the topic, outweighed the benefit of discrediting D.S.'s account.
Defendant now alleges he did not understand the import of L.A.'s testimony, and he had desired and expected his counsel to call L.A. at trial. However, the record directly contradicts these allegations. Both defendant's counsel and the court questioned defendant regarding his understanding of the trial strategy and the decision not to call L.A. The court explained the risks and benefits of the strategy in detail, and defendant responded: "Now I'm understanding. I didn't really understand but now I do." Defendant then stated he agreed with his counsel's advice not to call L.A. to the stand.
The record reflects defendant's trial counsel thoroughly investigated the relevant law and facts, and considered all likely options. Defendant's counsel articulated legitimate and well-reasoned rationales for the decision. Moreover, defendant knowingly and willingly agreed with his counsel. Even interpreting the facts in his favor, defendant failed to show counsel's performance was objectively deficient. Therefore, defendant failed to establish a prima facie case as to this claim, and the Law Division correctly found defendant was not entitled to an evidentiary hearing. Accordingly, we affirm as to this claim.
B.
Defendant next argues the absence of a qualified Spanish interpreter prevented him from effectively communicating with his counsel before and during trial. The Law Division denied defendant's claim, observing defendant failed to present any controlling authority, and that defendant's trial counsel directed him to bring family and friends to translate during pretrial meetings.
While trial strategy generally rests within the sound discretion of trial counsel, N.J. Div. of Youth & Family Services v. V.K., 236 N.J. Super. 243, 258 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990), certain fundamental decisions are reserved for the defendant. Specifically, R.P.C. 1.2 requires, "[i]n a criminal case, [counsel] shall consult with the client and, following consultation, shall abide by the client's decision on the plea to be entered, jury trial, and whether the client will testify." See also, Missouri v. Frye, 132 S. Ct. 1399, 1408, 182 L. Ed. 2d 379, 390 (2012) ("[D]efense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.").
Here, however, defendant does not allege his trial counsel failed to effectively communicate a plea or disregarded his wish to testify. Instead, defendant alleges the inability to communicate prevented him from being able to review discovery, understand the decision not to call L.A. at trial, or adequately prepare his own testimony. As previously discussed, the decision not to call L.A. was a reasonable trial strategy within counsel's sound discretion. Moreover, the trial court explained the decision to defendant in detail, and defendant knowingly and willingly agreed to his counsel's strategy.
Defendant's remaining allegations are "vague, conclusory, [and] speculative[.]" R. 3:22-10(e). Defendant argues that the inability to communicate with counsel should be considered presumptively prejudicial; however, defendant cites no authority supporting his argument that a failure to provide a qualified Spanish interpreter at pretrial meetings is presumptively prejudicial. Defendant alleged no specific discovery or misstatements during his testimony that prejudiced his case. Moreover, defendant's allegations are bald assertions, unsupported by competent evidence that he did not understand the proceedings, and contradicted by his admission that he brought friends and family to pretrial meetings to translate on his behalf.
Absent more specific, sufficiently supported allegations of error, defendant again fails to establish a prima facie case of ineffective assistance of counsel. Therefore, the Law Division correctly found defendant was not entitled to an evidentiary hearing. Accordingly, we affirm as to this claim as well.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION