STATE OF NEW JERSEY v. CARMELO HERRERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5834-07T45834-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

CARMELO HERRERA,

Defendant-Appellant.

__________________________________

 

Submitted: February 3, 2010 - Decided:

Before Judges Cuff and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-06-1286.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nicole M. Ghezzar, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Carmelo Herrera appeals from the denial of his petition for post-conviction relief (PCR). He is serving a thirty-year prison term subject to a No Early Release Act 85% parole ineligibility term following his conviction of first degree carjacking, N.J.S.A. 2C:15-2, and third degree receiving stolen property, N.J.S.A. 2C:20-7. We affirm.

Following his conviction, defendant appealed and we affirmed his convictions but remanded for resentencing. State v. Herrera, No. A-818-03 (App. Div. Feb. 23, 2005) (slip op. at 18). The Supreme Court affirmed. 187 N.J. 493 (2006). Following resentencing, defendant appealed his sentence, and we affirmed. State v. Herrera, No. A-6589-04 (App. Div. June 4, 2007).

Defendant's initial petition for PCR was dismissed as premature. Following disposition of his direct appeal by the Supreme Court, resentencing as originally directed by this court, and appellate review of the sentence, defendant filed this petition. Assigned counsel submitted a brief on defendant's behalf.

In his petition, defendant asserted that trial counsel failed to properly prepare for trial. Specifically, defendant alleged that trial counsel did not conduct a proper pre-trial investigation, failed to fashion an effective defense, and failed to challenge the identification procedures utilized by the police. He asserted these omissions deprived him of his constitutionally guaranteed right to the effective assistance of counsel.

In the brief submitted in support of defendant's petition, counsel argued that defendant wanted to testify at trial but trial counsel pressured him to remain silent. Counsel also asserted that trial counsel failed to request an intoxication charge that had ample factual support. He reiterated that trial counsel should have requested a more effective identification charge and should have conducted a more thorough investigation of the charges. Finally, assigned PCR counsel asserted that trial counsel did not adequately argue mitigating factors at sentencing. Neither the pro se petition nor the brief submitted by counsel are supported by certifications of defendant or third parties or expert reports.

In a comprehensive written opinion, Judge Kevin G. Callahan held that the petition was timely. The judge determined, however, that defendant failed to establish a prima facie case of ineffective assistance of counsel. He determined that the trial transcripts do not support defendant's contention that he was pressured or coerced to remain silent at trial. The judge also determined that trial counsel performed an adequate investigation and constructed a defense informed by that investigation.

As to the intoxication defense, Judge Callahan held that the failure to pursue this defense was a strategic decision by counsel. Such decisions are insulated from collateral attack in a PCR petition. Moreover, the judge noted that defendant asserted he was not the man who stole the car, and he was the victim of a misidentification. Therefore, Judge Callahan emphasized that the intoxication defense contradicted and undermined the defense. The judge also held that a cross-racial identification was unnecessary in this caes because defendant and the victim were ethnically or racially similar. Furthermore, the victim had seen defendant many times prior to this incident.

Judge Callahan also held that the mitigating factors presently advocated by defendant to reduce this sentence have no factual support. Furthermore, the judge held that the contention that appellate counsel should have urged as error the omission of a trespassing charge was without merit. The judge observed that the events underlying the charges against defendant "go above and beyond the scope of . . . trespass."

On appeal, defendant raises the following arguments:

POINT I -THE COURT ABUSED ITS DISCRETION BY DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM THAT HIS SIXTH AMENDMENT RIGHTS TO CONFRONTATION AND COMPULSORY PROCESS, AND HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, WERE VIOLATED WHEN HE WAS COERCED BY TRIAL COUNSEL NOT TO TESTIFY.

POINT II -THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S COERCION WHICH INDUCED THE DEFENDANT NOT TO TESTIFY; TRIAL COUNSEL'S FAILURE TO REQUEST AN INTOXICATION CHARGE OR TO PRESENT A MEANINGFUL DEFENSE; AND TRIAL COUNSEL'S FAILURE TO ARGUE MITIGATING FACTORS AT SENTENCING; SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON DIRECT APPEAL.

(A)

THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

(B)

THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

POINT III-THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, TO CONFRONTATION, AND TO COMPULSORY PROCESS AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

POINT IV -DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN PCR COUNSEL'S BRIEF AND IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists 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. The precepts of Strickland and its tests have been adopted in this state. Fritz, supra, 105 N.J. at 58.

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 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding; United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

An evidentiary hearing is required only when the facts viewed in the light most favorable to the defendant would entitle the defendant to post-conviction relief. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

As demonstrated by Judge Callahan in his thorough opinion, defendant supports his various allegations of ineffective assistance of trial and appellate counsel with nothing more than unsupported statements. He does not identify witnesses who would contradict the evidence adduced at trial. He offers a defense that undermines his position that he was not in or near the car and did not take the car.

Defendant's argument concerning the identification procedures ignores that the Supreme Court granted certification to review the identification issue framed by him. 185 N.J. 35 (2005). In its opinion, the Supreme Court noted the growing criticism of the established analytical framework governing the admissibility of eyewitness identification, Herrera, supra, 187 N.J. at 499-501, reviewed defendant's argument that the victim's out-of-court identification was impermissibly suggestive and lacked reliability, id. at 501-09, and requested the Criminal Practice Committee and the Model Jury Charge Committee to consider the identification charge, id. at 510. Notably, as to the victim's identification of defendant, the Court concluded that the impermissibly suggestive show-up procedure used in this case was nevertheless "reliable and did not result in a substantial likelihood of misidentification." Id. at 509.

We, therefore, affirm the May 9, 2008 order denying defendant's PCR petition substantially for the reasons expressed by Judge Callahan in his comprehensive written opinion of the same date.

Affirmed.

 

N.J.S.A. 2C:43-7.2.

State v. Cromedy, 158 N.J. 112 (1999).

(continued)

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9

A-5834-07T4

March 8, 2010