STATE OF NEW JERSEY v. JOEL VELEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2550-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEL VELEZ, a/k/a ZIMMER,

SIMMER, SIM,

Defendant-Appellant.

_________________________________________

April 20, 2011

Submitted December 8, 2010 Decided

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94-03-0324.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joel Velez appeals from a September 28, 2007 order denying his petition for post-conviction relief (PCR). He asserts he made a prima facie showing that his constitutional rights were violated by the PCR court's rulings and that he was denied a fair trial due to ineffective assistance of trial and PCR counsel. We have considered his arguments in light of the facts and applicable law, and we affirm the order denying his petition.

A Passaic County grand jury returned an indictment charging defendant with two counts of knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) (counts one and two); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts two and four); third-degree possession of an assault firearm without a license, N.J.S.A. 2C:39-5(a) (count five); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count seven).

Less than two weeks before trial, defendant's attorney moved for a psychiatric examination of defendant to determine his competency to stand trial. The court granted that motion and defendant was examined by the consulting psychiatrist for the Passaic County Jail, Dr. Joel Federbush, who opined that defendant was competent to stand trial. Based on that opinion, the court ruled defendant was competent to stand trial.

Thereafter, defendant filed a motion requesting a continuance of the trial to have defendant examined by a defense psychiatrist to determine defendant's sanity at the time of the crime and his competency to stand trial. The trial court denied the motion. Defendant moved for leave to appeal the motion, and we denied leave to appeal.

Following a trial before Judge Ronald B. Sokalski and a jury, defendant was found guilty of two counts of aggravated manslaughter (the lesser-included offenses counts one and two), two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a), (f); and one count of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1). He was found not guilty on two counts of first-degree murder and an additional count of fourth-degree aggravated assault.

At sentencing, the convictions for possession of a weapon for unlawful purpose (counts two and four) were merged with the aggravated manslaughter convictions (counts one and three). The court sentenced defendant on counts one and three to consecutive thirty-year terms of imprisonment, with fifteen years of parole ineligibility. On counts five and six, the court sentenced defendant to concurrent five-year terms of imprisonment with two and one-half year periods of parole ineligibility to run concurrent with the aggravated manslaughter conviction on count one.

The convictions arose out of a fight between rival groups from the Dominican Republic and Puerto Rico that led to a shooting from the rooftop of defendant's apartment building in Paterson, New Jersey.1 Defendant shot several rounds from a semiautomatic weapon into the street where a crowd had gathered. Two of the members of the group from the Dominican Republic, Havier Diaz and Duarte Vargas, were hit with bullets. Diaz died within minutes and Vargas died several days later.

Defendant appealed his conviction and sentence. In his direct appeal, defendant challenged the trial court's finding of competency to stand trial; challenged, as plain error, a jury instruction; and argued excessive sentencing. In an unpublished opinion, State v. Velez, No. A-1750-00 (App. Div. May 22, 2003), we affirmed defendant's convictions. The Supreme Court denied defendant's petition for certification. State v. Velez, 177 N.J. 577 (2003).

Thereafter, defendant filed a pro se application for PCR. Later, defendant, assisted by counsel, submitted a supplemental petition for PCR. After a hearing, Judge Sokalski denied the petition. Defendant filed this appeal, raising the following points of argument for our consideration.

POINT I: THE COURT ERRED IN RULING THAT THE DEFENDANT HAD NOT ESTABLISHED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL FOR COUNSEL'S FAILURE TO ARTICULATE THE DISTINCTION BETWEEN COMPETENCY AND INSANITY.

With greater specificity, defendant argues he made a prima facie showing that: (1) the trial judge erred in not granting defendant's motion for a second doctor to determine competency; (2) PCR counsel erred by failing to investigate the insanity defense; and (3) the PCR court erred by not finding the prison medical records submitted by defendant constituted newly-discovered evidence of defendant's insanity at the time of trial.

I.

At the outset, we acknowledge certain basic principles that control our review. A PCR claim may not be based on a ground for relief that could reasonably have been raised "in any prior proceeding," unless the bar would create a "fundamental injustice" or an unconstitutional result. R. 3:22-4(a). In addition, if the merits of a claim were adjudicated in a prior proceeding, the adjudication bars reassertion of the same ground in subsequent petitions. R. 3:22-5.

Ineffective assistance of counsel claims are ordinarily exempt from the procedural bar of R. 3:22-4. See, e.g., State v. Harris, 181 N.J. 391, 518 (2004), certif. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However, pursuant to Rule 3:22-5, prior adjudication of an issue, particularly on direct appeal, will ordinarily prohibit post-conviction relief. See, e.g., State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993). A defendant may not use a PCR petition as an opportunity to re-litigate a claim already decided on the merits. State v. McQuaid, 147 N.J. 464, 483 (1997). This bar applies only to reassertion of the same grounds; claims that differ from those previously asserted are cognizable. State v. Afanador, 151 N.J. 41, 5l (1997); McQuaid, supra, 147 N.J. at 484.

With these principles in mind, we conclude that defendant's arguments regarding trial counsel were previously raised on direct appeal or they could have been raised. Further, those claims concerning PCR counsel are without sufficient merit to warrant more than a brief discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add the following comments.

II.

First, defendant contends that the PCR court erred by failing to find that the two medical record documents presented at the PCR hearing constituted newly discovered evidence providing sufficient weight against the jury verdict to require a new trial. We agree with Judge Sokalski that the two documents presented at the PCR hearing did not present evidence of legal insanity.

"The purpose of post-conviction review in light of newly discovered evidence is to provide a safeguard in the system for those who are unjustly convicted of a crime." State v. Ways, 180 N.J. 171, 188 (2004). It is axiomatic that,

[a] jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons. Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial.

[Id.at 187-88.]

In order to grant a new trial, the court must find that the defendant submitted new evidence that was: "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981). A new trial will be granted only if all three prongs of the test have been satisfied. Ibid.

When presented to the PCR court, Judge Sokalski rejected the documents as new evidence, stating:

Those documents really refer to Mr. Velez's problem, his schizoaffective disorder etcetera, which again these are psychological or psychiatric problems that Mr. Velez has, but when we go down to the strengths and limitations, he can communicate, he can comply with his medication, which means he understands that he needs the medication, he's taking it. He's motivated for his treatment which means he understands exactly what his condition is with fair insight.

There's nothing there to indicate any significant problem. More importantly, there's nothing to indicate that at the time of the trial he did have any of these problems. These are simply evaluations at the State Prison of an inmate and his treatment.

So again, I do not find that these statements here, which are not -- again they do not meet the criteria of -- of a finding that he was incompetent at the time of trial -- trial by again either a degree of medical certainty or prob -- or probability which is the requirement.

We discern no basis to disturb this finding. The July 21, 2004 and January 4, 2006 documents include reference to defendant's "MH Treatment Plan" at the New Jersey State Prison and list "schizoaffective disorder" as one of the "Current Problems" affecting defendant. The reports do not suggest that defendant might have been legally insane thirteen years earlier at the time of the crimes. The 2006 report lists "schizoaffective disorder" as a "Current Problem[]" and the "Strengths and Limitations" section indicates that his communication is fair, medication compliance is good, supportive relationship is fair, social skills are fair, insight is fair and motivation for treatment is fair. As such, defendant's argument that the report is "newly discovered evidence" necessitating a new trial falls short.

III.

Next, defendant's claim that PCR counsel was ineffective for failing to investigate and to have defendant examined by a psychiatrist to determine whether his mental illness was active at the time of the homicides, is without merit. Since we agree that the medical documents were not newly-discovered evidence, an investigation by PCR counsel was unnecessary. As such, defendant was not entitled to a full evidentiary hearing on his claim of ineffectiveness.

To maintain a prima facie claim of ineffective assistance of counsel, defendant must show that (1) counsel's performance was deficient; and (2) but for counsel's deficient performance, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. That standard does not require "the best of attorneys," but rather requires that attorneys be not "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000). "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).

We recognize that a claim of ineffective assistance of counsel based on facts outside the record must ordinarily be tested by way of an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). However, in order to qualify for an evidentiary hearing, the defendant must present a prima facie case supporting the application. Ibid. "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." State v. Marshall, 148 N.J. 89, 158 (1997).

Defendant has presented no legally competent evidence in support of his claim regarding PCR counsel's inadequate investigation. Defendant failed to provide certifications demonstrating that there was discoverable evidence prior to trial that would have had the likelihood of successfully rebutting the State's evidence against him. Since defendant did not establish a prima facie showing in this regard, no evidentiary hearing was warranted.

[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. When claiming counsel inadequately investigated his or her case, the petitioner must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).]

As we stated on the direct appeal:

The doctor's report concluded that defendant was competent to stand trial. Defendant was depressed but calm and cooperative, with no evidence of formal thought disorder. His speech was coherent and he was oriented to time, space, and objects. At the subsequent hearing, [Dr.] Federbush said defendant knew he was charged with double murder and had a broad understanding of the roles of the prosecutor, defense counsel, judge, and jury. Defendant understood that if convicted he would go to prison. [Dr.] Federbush said defendant's diagnosis of anti-social personality disorder and depression did not preclude defendant from participating in his own defense. Defendant was not suffering from a mental illness that would interfere with his ability to work with counsel or to understand the proceedings.

[State v. Velez, supra, slip op. at 5-6.]

Given our finding of competency on direct appeal, the fact that the homicides occurred thirteen years ago, and that the prison medical documents support nothing more than that defendant currently suffers from mental illness, the argument that PCR counsel was ineffective for failing to investigate his mental illness is a bald assertion. Cummings, supra, 321 N.J. Super. at 170.

IV.

Finally, we address defendant's contention that he was denied effective assistance of counsel because PCR counsel did not distinguish competency from insanity. In his PCR brief, defendant states:

The fact that the disorder may not outwardly manifest psychosis at a particular time masks the disorder itself so as to deceive the uninitiated to the nature of the illness and a conclusion that the matter only involves competency to stand trial.

It appears defendant is arguing that PCR counsel should have thoroughly explained that "schizoaffective disorder" has latent symptoms making it difficult to diagnose, and as such the PCR court could have reasonably concluded that the medical records constituted newly discovered evidence that defendant was incompetent to stand trial. We are not persuaded by that argument.

As interpreted by the New Jersey Supreme Court, Rule 3:22-6(d) demands that "PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward." State v. Webster, 187 N.J. 254, 257 (2006). "Based on that communication and investigation, counsel then must 'fashion the most effective arguments possible.'" State v. Rue, 175 N.J. 1, 18 (2002) (quoting State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000)). Even if counsel deems some pro se arguments meritless, counsel is nevertheless required to at least incorporate the arguments by reference in the PCR brief. Webster, supra, 187 N.J. at 257. In no case is counsel permitted to "denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition." Rue, supra, 175 N.J. at 19.

At the PCR hearing, counsel argued to the court that the "schizoaffective disorder" was present at the time of defendant's trial and as such defendant was incompetent to stand trial. The PCR judge rejected this argument and agreed with the State that the issue of competency was fully litigated with the trial court and affirmed by us on appeal. We agree with that assessment.

Any criticism of PCR counsel's efforts regarding other issues appears to be misplaced, since the brief and argument indicate he raised claims as to ineffective assistance of trial counsel along with all of the other claims in defendant's petition for PCR. In short, any claim that PCR counsel was ineffective is without merit. See R. 2:11-3(e)(2).

Affirmed.

1 A detailed recitation of the facts can be found in our unpublished opinion in State v. Velez, No. A-1750-00 (App. Div. May 22, 2003).