STATE OF NEW JERSEY v. EDWARD CHINCHILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0734-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD CHINCHILLO,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 17, 2010 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-06-2081.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Edward Chinchillo appeals from a May 30, 2008 Law Division order denying his petition for post-conviction relief (PCR). On appeal, he argues:

I. THE COURT ERRED IN FINDING THAT POST-CONVICTION RELIEF SHOULD BE DENIED ON PROCEDURAL GROUNDS BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO FULL APPELLATE REVIEW AND TO PUBLIC DEFENDER "ANCILLARY SERVICES" WERE VIOLATED.

II. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO RETAIN AN ACCIDENT RECONSTRUCTION EXPERT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial Counsel's Deficient Performance Satisfied the First Prong of the Strickland/Fritz Test.

B. Trial Counsel's Deficient Performance Satisfied the Second Prong of the Strickland/Fritz Test.

III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO ANCILLARY SERVICES AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION.

IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PRO SE BRIEF IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S MEMORANDUM OF LAW IN SUPPORT OF POST-CONVICTION RELIEF.

We reject these contentions and affirm.

I.

On January 18, 2005, defendant entered a negotiated plea of guilty to three counts of Indictment No. 03-06-2081. In connection with count one, which charged him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), defendant admitted under oath that on December 20, 2002, he began smoking cocaine with his wife, co-defendant Janice Chinchillo, at 6:00 p.m. Approximately five hours later, he and Janice were driving home from a mall when Janice handed him a crack cocaine pipe. He admitted removing both hands from the steering wheel to smoke the cocaine. When the road curved, he was unable to navigate the curve because his hands were not on the steering wheel. Defendant's car crossed over into the lane of oncoming traffic, crashing into an approaching vehicle. One passenger, Margaret Hynes, died. A second passenger, Muriel Prickett, sustained serious bodily injuries and the driver, Thomas Quinn, sustained significant bodily injuries.

Defendant admitted under oath that he knew before he smoked the cocaine that day what its effects were and recognized that smoking cocaine adversely affected his ability to maintain proper control of his vehicle. He also conceded that it was because he took his hands off the steering wheel while smoking the cocaine that his car had crashed into the other vehicle. He also admitted that the death of Hynes and the injuries to Prickett and Quinn were the direct result of his conduct. He consequently entered a plea of guilty to aggravated manslaughter for causing the death of Margaret Hynes and to second-degree aggravated assault for the injuries caused to Prickett and third-degree aggravated assault for the injuries caused to Quinn.

As part of the plea agreement, defendant also agreed to enter negotiated pleas of guilty to two other indictments, Indictment No. 4780-12-04, which charged him with third-degree burglary, and Gloucester County Indictment No. 04-04-318, which charged him with the third-degree crime of impersonation and identity theft.

At the time of sentencing on March 11, 2005, Judge Natal sentenced him to a twenty-year term of imprisonment on the aggravated manslaughter count, subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was sentenced to a concurrent seven-year NERA term on count two and to a concurrent four-year term of imprisonment on count three. On the other two indictments, the judge imposed sentences that were concurrent to Indictment 03-06-2081. Defendant did not file a direct appeal.

Defendant filed a timely pro se PCR petition on November 1, 2007, in which he alleged that his guilty plea to the manslaughter indictment was entered "unwillingly" because trial counsel's failure to obtain an accident reconstruction expert left him no choice. He also alleged that trial counsel "cajoled" him into pleading guilty. For both of those reasons, he maintained that trial counsel provided him with ineffective assistance.

At the beginning of the PCR hearing on May 30, 2008, PCR counsel renewed his request for an adjournment for the purpose of obtaining the report of an accident reconstruction expert to demonstrate that such a report could have been obtained had trial counsel made the effort to do so. PCR counsel advised the judge that he had learned after filing his PCR brief that trial counsel had indeed requested permission from the Office of the Public Defender to retain such an expert but that the Public Defender had denied his request. PCR counsel argued that trial counsel should have, but did not, file a motion to compel the Public Defender to approve the retaining of such an expert. He told the judge he had just been notified by the PCR Unit of the Public Defender that its established policies prohibit the retaining of an expert in the PCR context. PCR counsel sought an adjournment to further pursue the issue, but Judge Natal denied the request, reasoning that defendant had had five years to obtain such an expert and that any further delay was unreasonable.

Defendant testified at the PCR hearing. In relevant part, he asserted that he had lied under oath during the plea colloquy when he told Judge Natal that he was not under the influence of any drugs or medication when in fact, he claimed, he was in a haze as the result of drugs he had purchased from jail inmates and ingested prior to the plea proceeding.

Defendant also testified that trial counsel had established preliminary contact with an engineering expert, George Widas, who was willing to review the file and potentially provide an accident reconstruction opinion but that the Public Defender refused to pay Widas to provide such a report.

Defendant also testified that when the Public Defender refused to pay Widas's proposed fee, Judge Natal had denied his motion for an order compelling the Public Defender to approve payment of the fee. After the judge essentially challenged defendant to produce any order or any transcript supporting his claim that the judge had so ruled, the following colloquy occurred:

JUDGE: Sir, do you have any -- do you know of anyone who is willing to say that the accident wasn't your fault, sir?

[DEFENDANT]: I'm not even willing to say that, Your Honor.

On cross-examination, defendant admitted that Widas was an engineer and therefore had no expertise that would have enabled him to render the opinion defendant sought, namely that the other driver was impaired by the consumption of alcohol. Defendant also conceded several other damaging facts: he was driving at a speed of 40 m.p.h. when he came to a curve in the road; "the road curved and apparently I went straight"; and his wife and teenage son had both given statements to police asserting that as defendant was approaching the curve in the road, he was steering the car with his knees because he was using both hands to light the crack pipe his wife had just handed him.

In a comprehensive oral opinion, Judge Natal concluded that defendant's claims of ineffective assistance of counsel were procedurally barred because defendant had failed to file a direct appeal; however, in the interest of justice, the judge nonetheless considered defendant's claims on the merits. The judge began by evaluating defendant's first claim, that trial counsel was ineffective for failing to obtain an expert in the field of accident reconstruction. In rejecting that claim, Judge Natal pointed to the fact that defendant had failed to present the court with a favorable expert report or with any evidence that an expert could be found who would be willing to provide a report expressing the opinion that defendant was not at fault for the happening of the accident.

The judge noted that defendant, in the five years that had elapsed since the fatal accident on December 20, 2002, had failed to produce such a report. The judge concluded that in the absence of such proof, defendant could not establish that retaining such an expert would have resulted in exculpatory evidence. The judge also observed that defendant had failed to show what an accident reconstruction expert could have said and how it would have helped his case because defendant's sole claim, even at the time of the PCR hearing, was that there was a curve in the road. The judge reasoned:

[t]he fact that if this -- if any expert had the evidence in this case about the defendant's drug use, ingesting of cocaine, steering with his knees, crossing over the center line, defendant's intoxicated state that he said he couldn't even see the curve in the road, the fact that witnesses saw him swerve several times prior to the accident, there's no expert who could give any type of exculpatory testimony that would aid this defendant.

The judge held that defendant had failed to establish either prong of the Strickland/Fritz test because he did not establish that counsel's performance was deficient or that any expert would have rendered a favorable opinion. In the course of his ruling, Judge Natal noted that trial counsel did obtain approval from the Public Defender to retain two other experts, one of whom was Dr. Richard Saferstein, an expert in the field of analytic chemistry and noted expert in drug use, who had rendered an opinion that defendant's use of cocaine and driving while under the influence of that cocaine were contributing factors leading to the happening of the accident.

Last, the court rejected defendant's claim of ineffective assistance of counsel in relation to defendant's entry of a guilty plea. Judge Natal found defendant had failed to establish that but for counsel's failure to obtain the accident reconstruction expert, defendant would not have pled guilty. The judge reasoned that there was overwhelming proof against defendant, including: his admission that he operated the car under the influence of cocaine; the recovery of drugs from his person and from his vehicle; the testimony his wife and son were prepared to offer against him, which included evidence that he was steering the vehicle with his knees and crossing over the center line of the roadway; and the statement of the person driving behind him, who witnessed him repeatedly swerving over the line prior to the collision. In light of such evidence, the court found that any advice trial counsel offered to defendant encouraging him to enter a negotiated plea of guilty constituted effective assistance as measured against the likely outcome of any trial.

II.

To prove ineffective assistance of counsel, defendant

must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. Fritz, supra, 105 N.J. at 58.

As the Court observed, when evaluating trial counsel's performance, "'[j]udicial 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). Thus, an attorney's strategy decision should not be characterized as ineffective assistance merely because such decision did not produce the desired result. Id. at 37-38. Moreover, we presume that a trial attorney's strategy decisions fell within the broad spectrum of competent legal representation, and the burden is placed on defendant to prove otherwise by a preponderance of the evidence. Fritz, supra, 105 N.J. at 52.

III.

In Point I, defendant maintains that the judge erred when he applied the procedural bar of Rule 3:22-4, thereby refusing to consider two of defendant's PCR claims because they could have been raised on direct appeal had such an appeal been filed. Defendant's claims do not accurately reflect the proceedings before the Law Division because, contrary to defendant's assertions, the judge considered each of defendant's claims even though technically the claims were barred by Rule 3:22-4. In particular, Judge Natal squarely addressed defendant's claim of sentencing disparity between the sentence he received as compared to the ten-year NERA sentence his wife negotiated. The judge rejected defendant's sentencing disparity claim, reasoning that Janice Chinchillo, unlike defendant, was not the driver and she had provided valuable assistance to law enforcement when she provided a statement against defendant. For that reason, she was entitled to mitigation of sentence. See N.J.S.A. 2C:44-1(b)(12). Thus, the judge considered defendant's sentencing disparity claim and rejected it on the merits.

Similarly, the judge considered defendant's claim that he was under the influence of illicit drugs sold to him by jail inmates when he entered his plea and therefore had not entered a knowing plea. The judge observed that defendant had testified under oath during the plea colloquy that he was not under the influence of any drugs or medication. Recognizing the obvious conflict between the testimony provided at the PCR hearing and the statement defendant made under oath during the plea colloquy, Judge Natal pointedly remarked that "[defendant] basically admits that he's a liar." The judge continued, "he's saying that he lied to the court at the time of the plea. . . . This defendant would say anything that he feels would be beneficial to him." For that reason, the judge rejected defendant's claim that because he was under the influence of illegal drugs at the time he entered his plea he was unable to understand the plea proceedings.

We reject defendant's claim that the judge unfairly imposed procedural bars and improperly declined to consider his claims on the merits. The record unmistakably demonstrates just the opposite, that the judge squarely considered each claim on the merits, did not apply the procedural bar of Rule 3:22-4, and reached correct results on each of defendant's arguments. We thus reject the claim defendant advances in Point I.

IV.

In Point II, defendant argues that the judge erred in rejecting his claim that trial counsel rendered ineffective assistance by failing to retain the report of an accident reconstruction expert. We have carefully considered defendant's claim in light of the record and conclude that defendant's contentions in Point II lack sufficient merit to warrant extended discussion in a written opinion. We affirm substantially for the reasons expressed by Judge Natal in his well-reasoned oral opinion of May 30, 2008. R. 2:11-3(e)(2).

V.

In Point III, defendant maintains that the Law Division's May 30, 2008 order denying post-conviction relief violated defendant's due process right to ancillary services, namely the right to an expert report. This argument is subsumed in the claims defendant raised in Point II of his brief and that Judge Natal addressed comprehensively in his oral opinion. We thus reject the claim defendant advances in Point III, as it too lacks merit.

VI.

In Point IV, defendant reasserts, without any

supporting legal argument, the claims raised in his PCR attorney's brief, as well as his own pro se brief, that were submitted in the Law Division. A party must present an adequate legal argument. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). He may not simply adopt by reference a brief submitted to the trial court. For that reason, we reject the claim defendant advances in Point IV.

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-0734-08T4

August 27, 2010