State of New Jersey v. JUAN BATTLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0867-07T40867-07T4

State of New Jersey,

Plaintiff-Respondent,

v.

JUAN BATTLE,

Defendant-Appellant.

________________________________

 

Submitted: October 21, 2009 - Decided:

Before Judges Payne and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-08-2201.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Juan Battle appeals from the denial of his peti tion for post-conviction relief (PCR) based on ineffective assistance of counsel at his sentencing. The PCR judge con cluded that defendant had not demonstrated that his sentencing counsel was ineffective. We affirm.

Defendant's wife sought a divorce and on March 24, 2000, defendant went to the dental office where his wife worked and attacked her with a butcher's knife. State v. Battle, No. A-4782-01 (App. Div. Jan. 12, 2004) (slip op. at 2), certif. denied, 179 N.J. 373 (2004). Defendant stabbed her multiple times in the abdomen and arm, threw her against a filing cabinet, and slammed her head into another fil ing cabinet. Ibid. During the attack, defendant told her "if I can't have you, nobody can" and "you are going to die." Ibid. When the victim pretended to be dead while lying on the floor, defendant departed, locking the door behind him. Ibid.

The victim then called 9-1-1 and reported she had been stabbed multiple times by her husband. Ibid. She gave the dis patcher the license plate number of her car, which defendant was driving. After the police arrived and attended to the victim, they proceeded to the home of defendant's parents, where they found defendant. He had a bandage on his right hand and a plastic bag containing dirty, bloody clothes in his left hand. The police advised him of his Miranda rights and placed him under arrest. Defendant waived his rights and gave a voluntary statement to the police.

In defendant's statement, he said he went to the dentist's office to talk with his wife about their marriage. The two began arguing and, when defendant was about to leave, he claimed she attempted to stab him with the knife. Defendant stated he cut his hand while taking the knife from her and then "snapped" and "started stabbing her all over." Defendant then dropped the knife, left the office, and drove to his parents' house. He did not call the police or an ambulance upon leaving.

The prosecutor secured an indictment on August 17, 2000, charging defendant with first-degree attempted murder, contrary to N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; second-degree aggra vated assault, contrary to N.J.S.A. 2C:12-1b(1); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3; fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d.

Defendant was tried before a jury in August 2001. Defen dant's statement was read into evidence. The jury found defen dant guilty on all charges except third-degree terroristic threats. The jury also found that the convictions for attempted murder and aggravated assault were crimes of violence, triggering imposition of a mandatory minimum sentence under the No Early Release Act, N.J.S.A. 2C:43-7.2.

The judge sentenced defendant on November 2, 2001. Defen dant's counsel noted that defendant had an "excellent work his tory" and was "supporting his family." Counsel also observed that defendant's "record has been a good record" and he had a "really very minor prior record." Counsel argued that defendant was not likely to commit other crimes, saying, "[h]e is not the kind of person we would be saying he is going to go out and com mit a robbery." Counsel asked for a term of less than the twenty-year maximum, acknowledging nonetheless that the sentence would be lengthy. Finally, counsel said "[defendant] is going to spend a very very long time in prison. I have explained that to him many times. He understands that." Defendant also spoke on his own behalf, apologized to his family, and expressed remorse for what happened. He expressed the hope that he and his wife could raise their children together as respectful parents. The State argued for a maximum sentence.

The judge found aggravating factors two, "the gravity and seriousness of harm inflicted on the victim," and nine, "the need for deterring the defendant and others from violating the law," and mitigating factor eleven, "imprisonment of the defen dant would entail excessive hardship to himself or his depend ents." The judge determined that the aggravating factors outweighed the mitigating factors and merged convictions of the aggravated assault and possession of a weapon for unlawful pur poses into the conviction for attempted murder. He sentenced defen dant to a twenty-year term with an eighty-five percent parole disqualifier on the conviction for attempted murder, an eighteen-month concurrent term on the conviction for unlawful possession of a weapon, a five-year term of parole supervision upon release, and appropriate fines.

Defendant raised the following issues on direct appeal:

POINT I - THE COURT ERRED IN ADMITTING INTO EVIDENCE AN AUDIOTAPE OF A 9-1-1 CALL MADE BY THE COMPLAINANT FOLLOWING THE STABBING, BECAUSE THE PREJUDICIAL EFFECT OF THE EVI DENCE OUTWEIGHED ITS LIMITED PROBATIVE VALUE.

POINT II - THE COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE.

We found the sentence "unexceptionable" and affirmed the admis sion of the 9-1-1 tape substantially for the reasons expressed by the trial judge. Ibid. Defendant's petition for certification was denied. State v. Battle, 179 N.J. 373 (2004).

Defendant filed his PCR petition on October 25, 2006, claiming he received ineffective assistance of counsel. The PCR judge denied the petition on June 14, 2007, without an eviden tiary hearing, holding that defendant failed to present a prima facie showing of ineffective assistance of counsel. This appeal followed.

Defendant raises the following issues in this appeal:

POINT I - COUNSEL'S LACK OF APPLICATION TOWARD MITIGATION OF DEFENDANT'S SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUN SEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.

POINT II - DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR COUNSEL'S FAILURE TO INFORM DEFENDANT OF A PLEA OFFER MADE BY THE STATE WHICH DEFENDANT WOULD HAVE ACCEPTED IN LIEU OF TRIAL.

POINT III - DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND IS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, Harris v. New Jersey, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documen tary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

Defendant's PCR petition was timely filed under Rule 3:22-12 and is not barred by Rule 3:22-4 because claims of ineffec tive assistance of counsel raise a constitutional issue, R. 3:22-4(c), and are generally not amenable to review on direct appeal, State v. McQuaid, 147 N.J. 464, 484 (1997), because they require development of facts outside the record, State v. Preciose, 129 N.J. 451, 460 (1992). Where a defendant makes out a prima facie case of ineffective assistance of counsel, the PCR judge should allow an evidentiary hearing and make a determination on the merits of the defendant's claim. Id. at 459-464.

In Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" stan dard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the first prong of the Strickland/Fritz test, a con victed defendant must identify acts or omissions by the trial counsel that were not the result of reasonable professional judgment. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002); Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. The defendant must show that "coun sel's representation fell below an objective standard of reason ableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This prong requires the court to determine whether counsel's conduct, in light of the existing circumstances, was squarely outside the ambit of professionally competent assistance. Petrozelli, supra, 351 N.J. Super. at 21-22. Consequently, informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

If the court finds the first prong has been satisfied, the defendant must then demonstrate that the error was "prejudicial to the defense." Id. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. "[T]he defendant must show that there is a reasonable probability that, but for counsel's unpro fessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The burden of proof rests "squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.) (quoting Fritz, supra, 105 N.J. at 60-61), certif. denied, 130 N.J. 17 (1992). The reviewing court "should presume . . . that the judge or jury has acted according to the law." Petrozelli, supra, 351 N.J. Super. at 22 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Thus, relief should only be granted where a defendant demonstrates that the counsel's error is "so serious as to undermine the court's confidence in the jury's verdict or the result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

With respect to his first point on appeal, defendant con tends that trial counsel's performance was deficient because he failed to raise mitigating factors three, "defendant acted under a strong provocation"; seven, "defendant . . . has led a law-abiding life"; and nine, defendant "is unlikely to commit another offense." N.J.S.A. 2C:44-1b. Defendant further claims trial counsel failed to introduce evidence in the form of letters or testimony to support defendant at sentencing. Defendant argues that these actions prejudiced him under the second prong of the Strickland test because had trial counsel raised the proffered mitigating factors, they would have outweighed the aggravating circum stances and he would have been eligible for sentencing as a second-degree offender.

The PCR judge found that defendant, through trial counsel, raised several facts in an attempt to mitigate his sentence: defendant's minimal record, his excellent work history, and his family's dependency on him. The judge stated that these factors would not affect the ultimate sentence because of the aggravating factors.

Defendant's claims have no merit. Mitigating factor three would never have been found on the facts developed at trial. This was a premeditated murder attempt. Defendant went to the dental office, discovered his wife was not alone, left, and called a short while later to find out if she were alone. When she said she was, he returned and she let him in through a locked door. After his wife returned to her desk, defendant came up behind her, unzipped his jacket, pulled out a butcher knife, and viciously stabbed her, disemboweling her and slashing her arm so deeply he severed a nerve. There was no evidence of strong provocation other than the claim defendant made in his statement to the police that his wife attempted to stab him with the knife first, but that was refuted by his wife. The jury credited her testimony, and found defendant guilty of first-degree attempted murder not passion-provocation murder, which had also been charged.

As to factor seven, defendant's trial attorney addressed that factor when he mentioned defendant's "good record," "very strong background," and "really very minor prior record." Fur thermore, the record shows that defendant did not lead a law-abiding life, as he had been arrested seven times with one prior indictable conviction. The judge properly rejected factor seven.

Likewise, trial counsel addressed factor nine when he said that defendant

is the kind of person that if [defendant] was out on the street today like he was throughout the whole trial, . . . [h]e is not the kind of person we would be saying he is going to go out and commit a robbery. He is going to do this, he is going to do that.

In essence, trial counsel argued that defendant would be unlikely to commit another offense, as evidenced by his good behavior while on bail during the trial. However, defendant had a history of domestic violence, an indication that he was likely to commit another offense. The judge quite correctly found that there was a risk of reoffense because the victim was his former wife and the mother of his children, which clearly creates a potential for future contact and conflict. Indeed, the judge imposed a condition on parole that defendant not have any contact with the victim.

Finally, defendant's assertion that trial counsel failed to introduce evidence in the form of letters to support him at sen tencing is directly contradicted by the record. The trial judge stated that he "receive[d] a letter from the defendant's cousin . . . in support of the defendant and his character and his meaningful relationship with the family members." Furthermore, defendant did not attach any additional letters, much less affi davits, from persons who would support him at sentencing. As a consequence, he did not meet his initial burden to make a prima facie showing of ineffective assistance of counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007).

As his second basis for PCR, defendant claims that trial counsel failed to inform him of a plea offer consisting of a ten-year prison term subject to NERA. Defendant argues that the failure of trial counsel to communicate this offer to him con stituted ineffective assistance and that he was prejudiced because he would have accepted the plea offer. Indeed, such a dereliction is per se ineffective assistance of trial counsel. United States v. Barber, 808 F. Supp. 361, 378 (D.N.J. 1992) (citation omitted), aff'd, 998 F.2d 1005 (3d Cir. 1993). However, in defendant's certification in support of PCR, he stated, "Every[ ]time a deal was given, [trial counsel] told me not to take it[,] that we were going to win. At this time I wanted to take the 10 [years]." Thus, defendant was admittedly aware of the existence of the plea offer, and no ineffective assistance of counsel can be found.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The police did not find the knife in the dental office.

N.J.S.A. 2C:44-1a.

N.J.S.A. 2C:44-1b.

(continued)

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A-0867-07T4

December 23, 2009