STATE OF NEW JERSEY v. FRANCISCO WILLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2695-08T42695-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCISCO WILLS,

Defendant-Appellant.

________________________________

 

Submitted May 19, 2010 - Decided

Before Judges Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-04-0740.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Thomas Cannavo, Senior Assistant County Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Francisco Wills, a Colombian national, entered into a negotiated plea in 2004 before Judge James Citta to first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The charges arose out of defendant's July 29, 2003 attack upon a woman that he had met at a restaurant where he worked.

During his plea hearing, defendant admitted that he had gained entry to the victim's house through a window at approximately 1:00 a.m. He then accosted the victim and held a knife to her throat while he raped her several times. After the sexual assault, defendant stabbed the victim in the stomach with the purpose to kill her, so she could not testify against him. Defendant then fled the scene, but the victim survived.

The negotiated plea was for an aggregate exposure of twenty-seven years (fifteen years for the attempted murder and a consecutive twelve-year term for the aggravated sexual assault), with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2a. Judge Citta imposed sentence consistent with the plea agreement. The sentence was sustained on direct appeal by this court on the excessive sentencing calendar in 2006.

Defendant then filed the present application for post-conviction relief ("PCR") in the Law Division. He raised two issues. First, he contends that his trial attorney was ineffective in failing to investigate a potential intoxication defense. Defendant contends that he had been seen drinking large amounts of wine at work and had lost his senses when he attacked the victim. He argues that if an intoxication defense had been sufficiently pursued, he either would have gone to trial or would have been able to negotiate a more favorable plea.

Second, defendant contends that he was deprived of his rights under Article 36 of the Vienna Convention on Consular Relations ("Vienna Convention") because the State and defense counsel did not arrange for him to be in contact with the Colombian Consulate while his criminal charges were pending.

After hearing oral argument, Judge James Den Uyl denied PCR relief without requiring an evidentiary hearing.

In his oral ruling, Judge Den Uyl noted that defendant had no problem recalling the events of the attack during the plea hearing. Additionally, there was "no evidence that [defendant] exhibited signs of unconsciousness before, during[,] or after the attack." Defendant also drove successfully both to and from the victim's house without incident, he was able to cut a window screen in entering the victim's house undetected, and he was able to maintain an erection for the duration of the sexual assault. Defendant also was able to fight back when the victim struggled. The judge noted that these are all facts inconsistent with defendant's claim that he had an extremely high level of intoxication, and that his trial attorney was not ineffective in eschewing an intoxication defense.

With respect to the Vienna Convention, Judge Den Uyl likewise found the defendant's claims to be without merit, because defendant admitted to the wrongdoing at the plea hearing and there is no showing of prejudice by the alleged failure to comply with the Vienna Convention. Further, the judge found no facts to substantiate defendant's claim that his rights under the Vienna Convention were ever violated in the first place.

The applicable legal standards are familiar and clearly defined. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense 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; see also State v. Perry, 124 N.J. 128, 153 (1991).

Having reviewed the record as a whole, the applicable law, and the points raised in the brief of defendant's present counsel and in his pro se appellate brief, we are satisfied that the trial court's denial of PCR relief was correct, substantially for the cogent reasons expressed in Judge Den Uyl's oral opinion dated October 24, 2008.

There is nothing we need to add to Judge Den Uyl's thorough discussion of why the hypothetical pursuit of an intoxication defense by defendant's trial counsel would have been exceedingly unlikely to be fruitful. Defendant cites various out-of-state cases in his brief, suggesting that the failure to pursue a intoxication defense can be a violation of Strickland, but none of those cited cases involved a situation like the present one with a negotiated plea and with scant indicia that an intoxication defense could have been successful.

As to the claim of deprivation under the Vienna Convention, we underscore the critical failure of defendant to identify any specific prejudice flowing from the claimed failure to arrange his communication with the Colombian consulate before trial. See, e.g., State v. Jang, 359 N.J. Super. 85, 93 (App. Div.) certif. denied, 177 N.J. 492 (2003) (noting the importance of making more than a generalized claim of prejudice resulting from a violation of the Vienna Convention); State v. Cevallos-Bermeo, 333 N.J. Super. 181, 185-86 (App. Div.), certif. denied, 165 N.J. 607 (2000) (same). Defendant, after his arrest, had the services of an able criminal defense attorney at his disposal. That trial attorney negotiated a plea agreement despite the brutal facts and the strong proofs of guilt that substantially reduced defendant's potential aggregate forty-year exposure under the twenty-two count indictment. It is hard to imagine what more could have been feasibly done for defendant had he been placed in communication with the Colombian consulate.

Lastly, the remaining arguments in defendant's pro se supplemental brief lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).

The dismissal of defendant's PCR petition is affirmed.

 

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A-2695-08T4

July 6, 2010