STATE OF NEW JERSEY v. PEDRO DEJESUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1677-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO DEJESUS,

Defendant-Appellant.

_______________________________

November 9, 2012

Submitted September 11, 2012 - Decided

Before Judges Lihotz and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-03-0479.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Special Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Pedro DeJesus appeals from the October 21, 2009 order denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. On appeal, defendant argues:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

[A.]1 TRIAL COUNSEL'S FAILURE TO ADEQUATELY COMMUNICATE WITH THE DEFENDANT, TO REVIEW ALL RELEVANT DISCOVERY WITH HIM, AND TO PURSUE A MUTUALLY AGREEABLE DEFENSE STRATEGY, WHICH RESULTED IN THE DEFENDANT NOT TESTIFYING AT TRIAL, SERVED TO DENY TO HIM HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

[B.] TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST THE TRIAL COURT CHARGE THE JURY REGARDING PASSION/PROVOCATION MAN-SLAUGHTER.

[C.] SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING HIS PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.

POINT II: RULE 3:22-4 DID NOT PRECLUDE THE PRESENT CONTENTIONS FROM BEING ADJUDICATED ON A SUBSTANTIVE BASIS.

Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

Defendant was tried by a jury and convicted of murder, N.J.S.A. 2C:11-3 (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two), in connection with the November 19, 2009 stabbing death of his live-in girlfriend, Maria Castle. At trial, the State's evidence included Castle's dying declaration to her daughter, stating defendant had stabbed her, and defendant's custodial statement admitting he had done so after an argument. Defendant offered treatment reports and expert testimony opining he suffered from an impaired mental state because of polysubstance dependence. The State countered with its own expert disagreeing with such a conclusion. Defendant was sentenced on count one to a thirty-year prison sentence, without the possibility of parole, and on count two to a concurrent five-year term of incarceration.

In an unpublished opinion, we affirmed defendant's conviction, but remanded for resentencing after the merger of count two into count one. State v. DeJesus, No. A-5066-04 (App. Div. Oct. 30, 2006) (slip op. at 6). The Supreme Court denied defendant's petition for certification. State v. DeJesus, 192 N.J. 68 (2007).

Defendant filed a pro se PCR petition alleging ineffective assistance of counsel. Counsel was assigned and a hearing was held on October 21, 2009. Defendant argued trial counsel was negligent because he failed to "adequately communicate and meet with the defendant during the pendency" of the case, and did not review discovery prior to trial or "properly prepare" a defense. To support his lack of communication claim, defendant offered a June 18, 2003 letter from Theodore V. Fishman, his counsel's supervisor, stating his attorney's trial schedule prevented communication with clients, but he would be in touch shortly after he had completed his next trial. Defendant asserted counsel's oversights left him "unable to speak freely" and unsure of the proposed trial strategy, which caused uncertainty on the issue of whether defendant would exercise his right not to testify. Finally, defendant maintained trial counsel failed to seek a jury instruction for passion/provocation manslaughter.

The court determined defendant's challenge to counsel's alleged lack of communication "[wa]s merely a bald assertion." The PCR judge found:

Defendant's certification in this matter omits the necessary information to support his claim since he does not indicate what information would have been available to counsel had there been more communication, what testimony he would have given had he had the opportunity to communicate, and most importantly, how that would have affected the outcome of the trial.

Further, the court determined the record specifically belied defendant's suggestion he was unaware of defense counsel's general strategy and did not know whether he would take the stand. The PCR judge cited defendant's colloquy with the trial judge, during which defendant responded affirmatively when asked whether defense counsel had discussed his right not to testify. The PCR judge further noted: "Counsel explained the intended course of [trial] events to the defendant on the record in open court"; both "the State's witnesses and defense experts reviewed the facts of the case with the defendant"; and "[d]efendant was present for pretrial evidentiary motions . . . [,] the presentation of the State's case[,] and the testimony of his own expert witnesses." Consequently, the PCR judge found defendant was apprised of the trial strategy. This strategy included a "decision to admit to a lesser included crime to avoid conviction on the greater [offense]," which "has been recognized as [an] effective trial strategy."

Addressing the alleged failure to seek a passion/provocation charge, the PCR judge concluded the claim was procedurally barred by Rule 3:22-4 because defendant should have presented the issue on direct appeal. Moreover, examining the merits of the claim, the PCR judge found "defendant c[ould] point to no fact in the record which would have supported a claim of passion[/]provocation." Moreover, defendant "asserted a diminished capacity defense, which is a defense that negates the mental state. . . . Passion[/]provocation requires defendant to admit that he acted purposefully but that his conduct should nevertheless be excused. Accordingly, only one of these defenses could have been pursued at trial."

At the conclusion of the hearing, the PCR judge discerned no basis to conduct an evidentiary hearing and entered an order denying defendant's PCR petition. This appeal ensued. We granted defendant's motion to accept the appeal as if timely filed.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence[,]" Preciose, supra, 129 N.J. at 459 (citations omitted), satisfying 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) if the PCR petition alleges ineffective assistance of counsel. First, a defendant must show "'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 he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696-97. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58. "Unless both parts of the [Strickland] test are established, defendant's claim must fail." State v. Echols, 199 N.J. 344, 358 (2009) (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

In demonstrating counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., 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).

On appeal, defendant claims the PCR judge erred in summarily rejecting his claims of ineffective assistance of counsel. Defendant's certification asserts counsel's omissions demonstrate egregious errors sufficient to require an evidentiary hearing. He asserts counsel visited him in jail before trial but did not provide a copy of the discovery or adequately discuss trial strategy. He suggests the letter from Fishman verifies counsel's failure to properly communicate and keep defendant informed. Defendant also states he moved for counsel's removal before trial, but his motion was denied.

In his certification, defendant further asserts that during trial, counsel did not confer with him at the jail, but only in the courthouse for a few minutes prior to the start of the proceedings. Because Sheriff's officers and other inmates were present, defendant felt he could not speak freely. Consequently, he suggests counsel's conduct precluded his participation in his defense "in a meaningful way."

Defendant also maintains the lack of communication impaired his ability to understand trial strategy and the tactical consequences of not testifying. Counsel defended against the charge of murder by arguing defendant was only guilty of aggravated manslaughter. Defendant's petition argues had counsel properly communicated with him, he would not have conceded his guilt, especially because given his age, the practical difference in the sentences for these offenses was insignificant. Defendant suggests had counsel properly advised him on these issues, they could have reached "a mutually agreeable trial strategy providing him with the best chance to achieve the most optimal result possible." Finally, defendant's certification suggests counsel's failings resulted in the omission of evidence which could have been elicited had he testified.

As identified by the PCR judge, defendant omits disclosure of the claimed excluded evidence; and his certification articulates no facts which he would have offered had he taken the stand. Thus, the general assertions of error gave the court no basis to assess whether counsel's conduct evinced ineffective assistance resulting in prejudice to defendant. See State v. Mitchell, 126 N.J. 565, 579 (1992) (holding "specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated to prove a basis for PCR).

In order to satisfy Strickland's first prong, a defendant must show how counsel's performance was deficient, not simply say it was so. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "[B]ald assertions" of ineffectiveness will not be sufficient to establish a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, a defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance . . . [,] supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.

Also "complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds, State v. Czachor, 82 N.J. 392 (1980)). See also State v. Perry, 124 N.J. 128, 153 (1991) (refusing to second-guess counsel's trial strategy). In fact, a defendant must demonstrate counsel's action "did not equate to sound trial strategy." State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks and citations omitted). "Trial counsel may not be considered ineffective merely because the trial strategy failed." State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), (citing State v. Davis, 116 N.J. 341, 357 (1989)), certif. denied, 169 N.J. 609 (2001). Strategic miscalculations or trial mistakes by counsel are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial. State v. Thomas, 245 N.J. Super. 428, 432 (App. Div. 1991), appeal dismissed by 130 N.J. 588 (1992).

Here, no evidence suggests counsel was ill-prepared for trial. Defendant's complaint of counsel's limited communication was made eighteen months before trial commenced, and Fishman's letter adequately explains the basis for that lapse. Trial counsel filed a number of pre-trial motions, secured an evaluation to assure defendant's competence to stand trial, challenged the admissibility of proffered State evidence, and vigorously cross-examined the State's witnesses. Defendant offers no basis to challenge the articulated defense strategy of admitting to a lesser offense in light of the State's overwhelming evidence of guilt. Nor does he articulate how he was prejudiced. Also, the PCR judge's reliance on the trial record to reject defendant's claimed lack of understanding of trial strategy, including with respect to the exercise of his right to testify, is well-supported.

Following our review of the arguments advanced, in light of the record and the applicable law, we find no flaw in the PCR judge's determination that defendant's claims of ineffective assistance failed to satisfy either prong of the Strickland/Fritz test.

Defendant next challenges as ineffective assistance counsel's failure to request a passion/provocation jury charge. Defendant maintains his statement to police, describing an argument with Castle culminating in her pushing him, caused him to "los[e] [his] mind," and thus supports reasonable provocation. We reject this claim as unfounded.

We first note the challenge to the jury instructions is procedurally barred as it should have been presented on direct appeal. R. 3:22-4 (prohibiting post-conviction consideration of claims for relief which could have been raised in prior proceedings, including direct appeal). Notwithstanding this procedural bar, the PCR judge considered the merits of defendant's assertions, and properly found no rational basis to support a passion/provocation charge.

"[T]he test for adequate provocation is provocation sufficient to arouse the passions of an ordinary person beyond the power of his or her control." State v. Oglesby, 122 N.J. 522, 536 (1991) (citing State v. Mauricio, 117 N.J. 402, 412 (1990)). Generally, "[a]dequate provocation is not satisfied by 'words alone, no matter how offensive or insulting.'" State v. Docaj, 407 N.J. Super. 352, 368 (App. Div.) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)), certif. denied, 200 N.J. 370 (2009). And "[e]ven in instances of 'mutual combat,' the defendant's response must be proportionate to the provocation." Id. at 369 (citing Oglesby, supra, 122 N.J. at 536).

Defendant's custodial statement asserts he and Castle were arguing when she told him "to get out" and pushed him one time. No other facts significant to passion/provocation were offered. Even evidence revealing Castle actually struck defendant would be insufficient to warrant a passion/provocation charge because the jury could not have found "a single blow by an unarmed woman could have aroused the passions of an ordinary man beyond the power of his control." Oglesby, supra, 122 N.J. at 536. See also Docaj, supra, 407 N.J. Super. at 359 (finding insufficient to support passion/provocation charge the defendant's wife's rejection of his plea to abandon divorce proceedings accompanied by a slap in the face). In light of this record, there was no reasonable and objective demonstration of provocation to warrant a passion/provocation instruction. See State v. Abrams, 256 N.J. Super. 390, 397 (App. Div.) (holding passion/provocation can be charged as a lesser included offense to murder "only when there is a rational basis in the evidence for a verdict convicting the defendant of such an offense") (citations omitted), certif. denied, 130 N.J. 395 (1992). Therefore, we cannot find evidence showing trial counsel's representation was deficient due to the failure to request such a charge.

Absent a prima facie showing of ineffective assistance of counsel, defendant is not entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462. See also R. 3:22-10(b) (stating "[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR]"); Pressler & Verniero, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2012) ("An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record."). We find no error in the denial of defendant's PCR petition and request for an evidentiary hearing.

A

1 We have omitted the statement of prevailing legal standards included as Point IA. in defendant's brief.