STATE OF NEW JERSEY v. ROQUE PEREZ

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4339-07T44339-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROQUE PEREZ,

Defendant-Appellant.

_______________________________________________________

 

Submitted April 1, 2009 - Decided

Before Judges Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-0338.

Yvonne Smith Segars, Public Defender, attorney for appellant (John P. Monaghan, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Roque Perez appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points on appeal:

POINT I

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENDANTS' (sic) APPLICATION FOR POST-CONVICTION RELIEF.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Defendant was indicted by the Atlantic County grand jury and charged with the first-degree aggravated manslaughter of his brother, Honorio Ramirez-Juarez, N.J.S.A. 2C:11-4(a); second-degree vehicular homicide of Ramirez-Juarez, N.J.S.A. 2C:11-5; second-degree aggravated assault of his cousin, Maribel Jimenez, N.J.S.A. 2C:12-1(b)(1); and third-degree assault by auto of Jimenez, N.J.S.A. 2C:12-1(c)(2). On September 20, 2004, defendant pled guilty to aggravated manslaughter, second-degree aggravated assault, and driving while intoxicated (DWI). In return, the State agreed to dismiss the remaining counts of the indictment, as well as the other motor vehicle summonses issued. The State further agreed to recommend concurrent sentences of ten years on the aggravated manslaughter count, and five years on the aggravated assault count. Defense counsel acknowledged that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied.

Through the services of a Spanish interpreter, under oath, defendant admitted that on the night in question, he was drinking with his brother until 2:30 or 3:00 a.m. They were both "rather drunk." With his brother and his cousin as passengers, defendant drove from the bar, acknowledging that he was "too drunk to operate the car[,]" and further admitting that his BAC was .16 or "about twice the legal limit." Defendant admitted that he was driving at least seventy miles per hour, and going so fast that he lost control of the car. After striking the middle road barrier, the car went "off the road and str[uck] parked cars in [an] auto dealership[.]" As a result, his brother was killed and his cousin was seriously injured. Defendant conceded that the accident was caused by his "alcohol consumption," and his "excessive speed."

On November 5, 2004, defendant appeared for sentencing. Over the State's objection, the judge agreed to consider a letter written by Jimenez. In it, he claimed that defendant was being "tickl[ed] near his underarms" by his brother who was in the front passenger seat at the time. As a result, Jimenez claimed defendant "lost a few minutes of concentration while he was driving which made him lose control of his car[.]" Defense counsel requested that the judge honor the plea bargain struck with the State. He did, and imposed an aggregate sentence of ten years in prison with an 85% parole disqualifier.

Defendant twice moved pro se claiming he received an illegal sentence. These motions were denied, and we summarily affirmed those orders. State v. Roque Perez, No. A-2587-05 (App. Div. April 28, 2006). On June 27, 2006, defendant filed a pro se PCR petition alleging ineffective assistance of counsel in that his trial counsel "induced [him] to plead guilty to a more serious crime of aggravated manslaughter, rather then (sic) having [him] plead guilty to the lesser included charge of vehicular homicide[.]" Defendant also claimed his trial counsel provided ineffective assistance by "not adequately representing [him] in the plea bargain and sentencing phase[.]" Trial counsel provided a certification that provided, in toto, the following:

At no time during my representation did I take into consideration in the defense of [defendant] the intervening actions of the front seat passenger who, as told to me by the rear seat passenger, reportedly started tickling [defendant] with his fingers near his underarms on the right side so that [defendant] would leave the CD alone that was in the car, at the time of the accident.

Also, in support of the petition, defendant furnished a December 2007 statement from Jimenez claiming defendant "was not responsible for nothing that happened at the present accident." A second statement from Jimenez reiterated his claim that defendant was distracted because he was being tickled when the accident occurred.

Oral argument on the petition took place on January 18, 2008. PCR counsel argued that trial counsel "miss[ed] something" by not considering the actions of defendant's brother as "contributory" to the happening of the accident. While trial counsel was aware of this fact, PCR counsel contended he had failed to consider its importance. While acknowledging that defendant "was driving the vehicle at a high rate of speed," and that his BAC was .147, PCR counsel nevertheless opined that if the case had been tried, it "likely would have come back as [] manslaughter," and not aggravated manslaughter. PCR counsel also argued that defendant's factual basis did not "establish a [first-]degree[] aggravated manslaughter." He asked the judge to grant an evidentiary hearing, "or in the alternative, and more preferably . . . conform the plea to the second[-]degree [manslaughter]."

The judge addressed the latter argument first, noting that the State was able "to prove through other witness[es] the speed [of defendant's car was] in excess of 100 miles per hour." Noting defendant's intoxication, and his inability to negotiate a "series of S curves," the judge concluded defendant's factual basis established all the necessary elements of aggravated manslaughter. Turning to Jimenez' letters, the judge noted that the issue first arose at sentencing, even though defendant was "in court competent and able to converse with his counsel as to what happened and able to raise that if, in fact, [the tickling] really occurred[.]" He denied defendant's petition and this appeal ensued.

Before us, defendant contends his trial counsel failed to investigate Jimenez' claim that defendant was being tickled, "a very important mitigating fact" that was never discussed with him. He also argues that defense counsel failed to inform him of the "consequences of the plea," contending that "he did not speak English and understand what was happening." Defendant also claims that there was no basis to satisfy the "'extreme indifference to human life' prong" required for conviction of aggravated manslaughter. In his second point, defendant contends the PCR judge mistakenly exercised his discretion to deny him an evidentiary hearing on the issue.

The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). We have noted that "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2009); see also Rountree, supra, 388 N.J. Super. at 214.

In this instance, there was no need for an evidentiary hearing to assess defendant's claim. First, the many statements Jimenez made were already part of the record and the judge assumed, as he was required to do, that if called as a witness, Jimenez would testify in a similar fashion. Second, there was no need to call trial counsel as a witness because his certification explained that he never considered the impact of Jimenez' statements upon any potential defense. Thus, an evidentiary hearing was unnecessary, and the judge did not abuse his discretion in deciding the motion without one.

Turning to the substance of the ineffective assistance claim, we reject any notion that defendant did not understand he was pleading guilty to aggravated manslaughter because his trial counsel failed to explain it to him, or because defendant's primary language was Spanish. The transcript of the plea proceedings makes it quite clear that defendant understood what he was pleading guilty to, he understood the terms of the plea bargain and the sentence he was exposed to, and he clearly and unequivocally waived his right to trial. The plea forms he executed only corroborate this conclusion.

We further reject the claim that defendant's factual basis was insufficient to support the guilty plea to aggravated manslaughter. In a similar context, the Supreme Court has explained,

Although the crimes of both aggravated manslaughter and vehicular homicide require the element of recklessness, aggravated manslaughter demands a more stringent standard of reckless conduct, namely that the defendant acted "under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). The jury must determine whether that degree of recklessness was present in view of all surrounding circumstances. To establish that heightened degree of recklessness, the State must prove beyond a reasonable doubt that defendant's actions created a probability as opposed to the mere possibility that death would occur.

[State v. Bakka, 176 N.J. 533, 549-50 (2003) (citations omitted).]

Defendant admitted under oath that he was extremely drunk, actually "too drunk to drive," and drove at excessive speeds when he failed to negotiate a series of S-turns in the road and lost control of the car. He never claimed that his brother tickled him, or that the tickling in any way contributed to the accident. These facts were more than sufficient to establish his guilt as to the aggravated manslaughter charge.

Lastly, we come to defendant's ineffective assistance claim as it relates to Jimenez' late disclosure of the tickling he alleges took place in the front seat of the vehicle. We analyze this within the Strickland/Fritz framework.

Trial counsel acknowledged in his certification that in formulating his defense, he did not consider "the intervening actions of the front seat passenger." We can assume arguendo that this implies he did not fully investigate Jimenez' claims, nor discuss them in any particularity with defendant. For our purposes, we will further assume this demonstrates that trial counsel's performance was deficient. See State v. Savage, 120 N.J. 594, 618 (1990) (counsel has a duty to reasonably investigate the case or otherwise reasonably determine that such investigation was not necessary) (citing Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

But in order to succeed, defendant must also meet the second prong of the Strickland/Fritz test, and, in this regard, we conclude defendant has failed. The import of Jimenez' revelations about defendant being tickled was that, if believed, the testimony may have established "that the actions of [defendant's] front seat passenger constituted an intervening cause of the crash[.]" State v. Eldridge, 388 N.J. Super. 485, 488 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007). Alternatively, defendant argues that Jimenez' version of the facts might convince a jury that his conduct, while admittedly reckless, was not committed "under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). However, to succeed on his claim, defendant must demonstrate that if these facts were made known prior to his guilty plea, it would create a "reasonable probability" that the outcome of the case would be different. Fritz, supra, 105 N.J. at 58. He has failed to do so.

First, we note, as did the PCR judge, that defendant has never asserted that Jimenez' version of the events was true, and it is clear that he never claimed the tickling had some causative relation to the crash. Instead, he acknowledged that the accident occurred because of his excessive speed and his intoxication. Second, in the context of a guilty plea, a defendant can meet the second prong of the Strickland/Fritz test only by demonstrating "that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial". State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Defendant has never claimed that he would have gone to trial on all charges rather than plead guilty to aggravated manslaughter with the recommendation of the minimum sentence for a first-degree crime, i.e., ten years imprisonment.

Instead, reduced to its essence, it is defendant's claim the outcome of the proceedings would have been different if his lawyer considered Jimenez' statements because counsel would have secured a plea bargain to the lesser charge of manslaughter or vehicular homicide instead of aggravated manslaughter. It is clear to us, however, that there is absolutely no support for that claim.

 
The PCR judge referenced other proofs in the State's case which included eyewitness testimony that defendant was driving in excess of one-hundred miles per hour, that he was flashing his lights and honking his horn, and that he never applied his brakes as he lost control of the car. Despite this significant, additional proof of defendant's guilt, the State exercised its discretion and offered a plea bargain that limited defendant's exposure to ten years in prison, along with concurrent sentences, despite the fact that two victims were involved. Under all the circumstances presented, there is no "reasonable probability" that defendant could have struck a more favorable plea bargain if his attorney more carefully considered the import of Jimenez' allegations. Therefore, defendant has failed to demonstrate the assistance provided by his trial counsel was ineffective.

Affirmed.

We have used this spelling of Jimenez' first name because that is how it appears in the indictment. In his subsequent correspondence to the judge, Jimenez used "Marbel" as his first name.

The prosecutor, at sentencing, referenced the BAC level as .147, the same level used during the PCR hearing.

Eldridge was decided after defendant was sentenced, but prior to the PCR hearing. It was referenced by the parties and the PCR judge numerous times during the proceedings. Defendant has not cited the case on appeal.

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A-4339-07T4

May 14, 2009