STATE OF NEW JERSEY v. RAUL CALDERON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3271-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAUL CALDERON,

Defendant-Appellant.

_________________________________

February 29, 2012

Submitted February 8, 2012 - Decided

Before Judges Graves and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-03-0223.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raul Calderon appeals from a June 12, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I.

A.

Following a jury trial in 2005, Calderon was convicted of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3). The trial court granted the State's motion to impose an extended term of imprisonment and sentenced Calderon to eight years with a parole disqualifier of four years. On direct appeal, we affirmed the conviction and sentence. State v. Calderon, No. A-2686-05 (App. Div. Sept. 9, 2008). The Supreme Court denied certification. State v. Calderon, 197 N.J. 13 (2008).

In December 2008, Calderon filed an application for PCR. A non-evidentiary hearing was conducted by Judge Joseph P. Perfilio on June 12, 2009. Judge Perfilio served as the trial judge. After reviewing the submissions of the parties and hearing counsels' arguments, Judge Perfilio rejected Calderon's claims regarding the supposed ineffective assistance of trial counsel, concluding, among other things, that "the allegations of deficient performance [were] not supported by the evidence." This appeal followed.

B.

On September 26, 2003, Calderon was observed by two Elizabeth police officers engaged in what appeared to be a hand-to-hand drug transaction with a man, later identified as Calderon's co-defendant, named Tomas Gonzalez. After Gonzalez was arrested, he inculpated Calderon as the person who sold him the drugs that were found on his person. However, according to the police report, Gonzalez "then began changing his story saying [that] he bought the drugs from another person."

Before jury selection, Calderon's defense counsel indicated that she was considering calling Gonzalez as a defense witness, who by that time had entered a guilty plea to the indictment. Because Gonzalez was then incarcerated in the Mountainview correctional facility, defense counsel requested the assistance of the court to ensure his attendance a few days later. Ultimately, instead of utilizing Gonzalez, who had given disparate versions to the police of who sold him the drugs, Calderon's attorney called a criminal investigator as a witness to testify about the distances involved in making observations of the persons engaged in the hand-to-hand transaction on the date in question.

After appropriate jury instructions were provided, Calderon was found guilty as charged.

II.

On appeal, Calderon presents the following single contention:

POINT I: MR. CALDERON IS ENTITLED TO A HEARING ON HIS CLAIMS THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PRESENT TOMAS GONZALEZ AS A WITNESS AND FAILING TO CHALLENGE THE OFFICERS' OBSERVATIONS.

For Calderon to establish that he was deprived of the Sixth Amendment right to the effective assistance of counsel, he must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987)).

In reviewing such claims, courts apply a deferential standard by adopting the robust presumption that defense counsel exercised "reasonable professional judgment" and "sound trial strategy" in fulfilling her responsibilities. Hess, supra, 207 N.J. at 147. "[C]omplaints '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 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds, State v. Czachor, 82 N.J. 392 (1980)).

Our Supreme Court has observed that

[t]he quality of legal representation cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes 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. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314-15 (2006)).]

Beyond this daunting first threshold, the Strickland test requires that even if actual ineffectiveness is evident, "prejudice must be proved; it is not presumed." Bray, supra, 356 N.J. Super. at 498 (quoting Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97)). "[I]n order to establish a prima facie claim, a [defendant] 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." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

After reviewing the trial proceedings in light of the Strickland paradigm, we conclude that Calderon's arguments are neither persuasive nor supported by the record.

Calderon's first argument posits that his counsel was obliged to call Gonzalez as a witness because, presumably, Gonzalez would have held fast to his exculpatory version of events. This amounts to pure speculation. Calderon has not presented a certification from Gonzalez indicating what he would have said under oath at the trial. Even if there were such a certification, which contained the expected exculpatory information, Gonzalez would have been readily impeachable on cross-examination. The State had evidence that Gonzalez was intimidated by Calderon and that Gonzalez feared for his family's safety if he told the police that Calderon had sold him the drugs. These circumstances were known when the attorneys and the trial judge were discussing bringing Gonzalez to court, and the judge directly advised Calderon of the strategic risks of utilizing Gonzalez's change of heart.

Calderon's further claim that his defense attorney was ineffective by not interviewing Gonzalez suffers from the same defect in proof: there is no certification from prior counsel indicating the details of her trial conduct and strategy vis- -vis Gonzalez. Calderon's arguments that counsel was deficient in this regard invite utter conjecture. We are unable to engage in such speculation, particularly when competent evidence, see Rule 1:6-6, is required to support a prima facie claim of ineffective assistance of counsel. See State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006)(noting the requirement that a defendant must allege specific facts demonstrating the deficient performance).

Calderon also criticizes his trial counsel for failing to challenge the police officers' observations. Judge Perfilio who also presided during the trial found that defense counsel "successfully called into question [the police officer's] observations when she stated on cross-examination that there were times when their view of the defendant was obstructed by the gas station." Also, she "successfully questioned the street lighting in the area, where there was only one light above the Chinese restaurant under which [Calderon] was standing." The judge favorably commented on the use of the criminal investigator, and held "it seems clear to [the court] that the trial counsel's performance was anything but deficient . . . and none serious enough to invoke Sixth Amendment protections."

From our review of the record, we are unable to detect a failure of representation by defense counsel regarding the reliability of the police officers' observations and the supposed neglectful trial preparation. Calderon's attorney invited the jury to reject the testimony of the State's witnesses, using both cross-examination as well as the evidence presented by her criminal investigator. The conviction bespeaks the jury's rejection of this strategy. An unsuccessful defense does not represent per se ineffective assistance of counsel. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

In summary, Calderon has failed to present a prima facie entitlement to either a plenary hearing or the ultimate relief of PCR. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (noting that plenary hearings for PCR applications are not required where the defendant has not made a prima facie showing of a meritorious claim). We are convinced that what Calderon alleges in this appeal clearly fails to meet either the performance or prejudice prongs of the Strickland test.

A