STATE OF NEW JERSEY v. ANDREW MANTILLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2786-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW MANTILLA,

Defendant-Appellant.

_______________________________________________________

May 24, 2011

Submitted May 3, 2011 Decided

Before Judges Graves and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-08-1005.

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

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andrew Mantilla appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons expressed by Judge Ralph L. DeLuccia, Jr. in his oral opinion.

Defendant was convicted by a jury of third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). Judge Deluccia, who was also the trial judge, sentenced defendant to a five-year term of imprisonment on the burglary conviction, and a concurrent eighteen-month term on the resisting arrest conviction. Defendant did not file a direct appeal.

Defendant filed a pro-se petition for PCR that was supplemented by appointed counsel's brief. Defendant alleged that trial counsel provided ineffective assistance.1 In this regard, defendant contended that trial counsel told the jury, in his opening and again in summation, that it should find defendant guilty of the resisting arrest charge. Our review of the record supports the conclusion that trial counsel did indeed urge that the jury find defendant guilty of that charge, but vigorously argued that defendant was not guilty of the more serious burglary count.

A brief review of the evidence at trial reveals why counsel adopted this tack. Defendant and another were drinking an alcoholic beverage in a public park in Paterson. Paterson police officer Mahood Rabboh approached the two men in his police vehicle. Rabboh was in full uniform and asked the men to approach the car, intending to issue a summons. Defendant fled.

Rabboh drove around the block and saw defendant scaling a high fence topped with barbed wire. Rabooh ordered defendant down off the fence. Defendant refused the command, successfully scaled the fence and continued to flee. Rabboh drove to the other side of the fence, again established visual contact with defendant, and saw him running toward a house. Defendant passed through a gate and into the backyard of the property. Rabboh followed on foot and checked a shed in the back of the property, but defendant was not there. Rabboh then knocked on the door of the home, and Melvin Lopez answered.

Lopez and his mother were having dinner when defendant entered the apartment. They had never seen him before. Defendant locked the door behind him and eventually ran into a bedroom. When officer Rabboh arrived at his door, Lopez let him in the apartment and showed him to the bedroom where defendant was arrested.

Defendant did not testify and produced no witnesses. On this evidence, the jury convicted him of both counts of the indictment.

We apply well-known standards to our review of defendant's 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. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

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). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing State v. Preciose, 129 N.J. 451, 462 (1992)), certif. denied, 162 N.J. 199 (1999).

One other standard of review is most relevant to our assessment of defendant's claim in this case.

Because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."

[State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95) (additional internal quotation marks omitted).]

In his oral decision, Judge DeLuccia focused on this principle. He noted that there was no viable defense to the resisting arrest charge, and defense counsel, an experienced attorney, adopted a reasonable trial strategy. Judge DeLuccia concluded that the concession made by trial counsel to the overwhelming evidence of defendant's guilt on the resisting arrest count was an attempt to establish some credibility with the jury, thus, leaving counsel free to argue that the evidence was insufficient to prove beyond a reasonable doubt that defendant committed the more consequential crime, burglary.

Defendant argues before us that because the officer was only intending to issue him a summons for public drinking, and because he never told defendant that he was placing him under arrest, there was a viable defense to the resisting charge. We disagree with defendant's assessment of the evidence. A person must submit to an officer's attempt to arrest him even if the arrest itself was constitutionally infirm. State v. Crawley, 187 N.J. 440, 453-54, cert. denied sub nom., Crawley v. New Jersey, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). To violate N.J.S.A. 2C:29-2(a), "a defendant must have reason to know that a law enforcement officer is attempting to effect the arrest." State v. Parsons, 270 N.J. Super. 213, 222 (App. Div. 1994). However, there is no formulaic announcement, e.g., "you are under arrest," required for the police to set an arrest in motion. If a police officer is "engaged in the performance of his duties, . . . it is the duty of the citizen to submit." State v. Mulvihill, 57 N.J. 151, 155-56 (1970) (citation and quotations omitted).

Judge DeLuccia also noted that even if trial counsel's strategy was misguided, defendant failed to satisfy the second prong of the Strickland/Fritz test. The judge characterized the State's evidence as "consistent, uncontradicted and compelling." Even if trial counsel had not told the jury that his client was guilty of resisting arrest in his opening statement and summation, there was no "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

A

1 In his pro-se petition, defendant also asserted, without explanation, that the State failed to carry its burden of proof beyond a reasonable doubt at trial.