STATE OF NEW JERSEY v. ANGEL ECHEVARIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4683-03T44683-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL ECHEVARIA,

Defendant-Respondent.

_______________________________________

 

Submitted May 1, 2006 - Decided May 23, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 89-09-0457.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Angel Echavaria appeals from an order entered on March 23, 2001 denying his petition for post conviction relief (PCR). We affirm.

Defendant was charged under a Salem County indictment with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); and possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two). Following a trial before a jury, defendant was convicted on both counts. The judge merged count one with count two and sentenced defendant to a twenty-year custodial term. The judgment of conviction was entered on June 12, 1990. Defendant appealed and on June 10, 1991, we filed an opinion affirming the convictions and sentence imposed. State of New Jersey v. Angel Echavaria Rodriguez, No. A-5738-89T5 (App. Div. June 10, 1991).

In his direct appeal, defendant argued he had been denied the effective assistance of counsel because his trial attorney did not allow him to testify on his own behalf. We rejected this contention and stated that the decision of whether to have defendant testify was "clearly a matter of trial strategy within the sound discretion of trial counsel." Id. slip op. at 3-4. We added:

Even making the dubious assumption that trial counsel's failure to have defendant testify could be considered ineffective assistance of counsel, defendant has failed to demonstrate that this deficiency prejudiced him and produced an unjust result. When the automobile in which defendant was a passenger was stopped by the State Troopers, defendant looked over his shoulder, bent down and made movements as if to hide something. The automobile contained two compartments near the floor on both the driver's and passenger's side, one concealed and one partially concealed. Defendant displayed extreme signs of physical nervousness as the State Troopers questioned him and searched the automobile. The State Troopers discovered 7.1 ounces of cocaine with a value of approximately $10,000 inside the concealed compartment during a consensual search of the automobile. In addition, defendant possessed a rolled dollar bill containing cocaine residue. Thus, given the overwhelming evidence of defendant's guilt, it cannot realistically be stated that if defendant testified the outcome would have been any different.

[Id. slip op. at 4.]

Defendant filed a PCR petition on or about December 21, 2000. Defendant asserted that there was insufficient evidence for the convictions, the sentence was excessive, and he had been denied the effective assistance of counsel because he spoke Spanish and his attorney spoke English. Defendant alleged that the language barrier resulted in a lack of "effective communication."

The judge denied the petition. Pointing to our decision on the direct appeal where we stated that the evidence of defendant's guilt was overwhelming, the judge rejected defendant's claim that there was insufficient evidence to support defendant's convictions. The judge also found that defendant's claim that he had been denied the effective assistance of counsel was untimely and also without merit. The judge noted that the claim could have been raised on the direct appeal and, moreover, defendant had not shown that he had been prejudiced in any way because his attorney spoke English and he did not.

On this appeal, defendant raises the following points for our consideration:

POINT I: POST CONVICTION RELIEF COUNSEL PROVIDED NO REPRESENTATION.

POINT II: THE SENTENCE IS ILLEGAL.

We conclude that there is no merit in either contention and, for the reasons that follow, we affirm the denial of PCR.

Defendant first contends that he was denied the effective assistance of PCR counsel. Defendant asserts that his counsel did little to assist him with his PCR petition. Defendant states that PCR counsel filed a brief, but in that submission merely repeated defendant's contentions. According to defendant, PCR counsel did nothing to bring his arguments "into focus." In particular, defendant contends PCR counsel failed to show that defendant had been prejudiced by the purported lack of "effective communication" resulting from the language barrier between defendant and his trial attorney.

However, defendant has not identified the additional facts or evidence that PCR counsel should have presented to the PCR court in support of the petition. Defendant has not explained how his arguments could have been better focused. Defendant has not stated what additional facts or legal arguments should have been set forth in the brief. Moreover, there is nothing in the record to show that PCR counsel failed to advance arguments raised by defendant regardless of their merit. See State v. Rue, 175 N.J. 1, 16-19 (2002). Therefore, we find no merit whatsoever in the contention that defendant was denied the effective assistance of PCR counsel.

We also are convinced that the judge correctly found that there was no basis for relief on defendant's claim that he had been denied the effective assistance of trial counsel because his attorney spoke English and he speaks Spanish. The judge found that defendant was barred by R. 3:22-4 from raising this claim because defendant argued in his direct appeal that he had been denied the effective assistance of counsel but never mentioned that there was insufficient communication because he and his attorney spoke different languages. The judge properly observed that this contention could have been raised in the direct appeal as part of the ineffective assistance claim.

The judge did not rest his decision on this procedural bar alone. He considered the claim on the merits. To prevail on a claim of ineffective assistance, defendant must show that his counsel was deficient and counsel's deficient performance prejudiced his defense. State v. Fritz, 105 N.J. 42, 52 (1987) (quoting from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Here, the judge correctly noted that defendant had not presented any evidence to establish that better communication with counsel would have led to a different result. The judge's conclusion is unassailable, particularly in view of our determination on the direct appeal that the evidence of defendant's guilt was overwhelming.

We turn to defendant's contention that his sentence violates the Sixth Amendment principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In this case, the trial judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk or re-offense); N.J.S.A. 2C:44-1a(5) (substantial likelihood that defendant was involved in organized criminal activity); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge sentenced defendant to a twenty-year custodial term, which is longer than the presumptive term for a first-degree offense. See N.J.S.A. 2c:44-1f(1)(b).

In State v. Natale, 184 N.J. 458 (2005), the Court held that New Jersey's system of presumptive-term sentencing under our Code of Criminal Justice violates the right to trial by jury under the Sixth Amendment. Id. at 484. The Court invalidated the presumptive terms under the Code, thereby making the top of the statutory range for the crime charged the "statutory maximum" authorized by the jury verdict or the facts admitted by defendant when entering a guilty plea. Id. at 487.

The Court in Natale ordered new sentencing hearings "in each affected case," at which the trial judge must determine whether "the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96. However, the Court adopted a rule of limited retroactivity and applied its holding only to defendants with cases on direct appeal as of the date of the Natale decision or defendants who raised Blakely claims at trial or on direct appeal. Id. at 494.

Defendant's appeal was not in the "pipeline" on August 2, 2005 when the Court decided Natale. Ibid. As we pointed out previously, defendant's direct appeal was decided on June 10, 1991. Moreover, defendant did not challenge his sentence on Sixth Amendment grounds at trial or on direct appeal. Therefore, defendant is not entitled to relief under Natale.

 
Affirmed.

(continued)

(continued)

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A-4683-03T4

May 23, 2006