STATE OF NEW JERSEY v. ARIEL FERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARIEL FERNANDEZ,

Defendant-Appellant.

______________________________________

November 19, 2014

Argued October 15, 2014 Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-10-1349.

Jonathan A. Kessous argued the cause for appellant (Garces & Grabler, P.C., attorneys; Mr. Kessous, on the briefs).

Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

Defendant Ariel Fernandez appeals from an order entered by the Law Division on December 21, 2012, denying his petition for post-conviction relief (PCR). We affirm.

Defendant and co-defendant Percy Selles were tried before a jury, and found guilty of first-degree kidnapping, in violation of N.J.S.A. 2C:13-1b, and second-degree burglary, in violation of N.J.S.A. 2C:18-2, and other offenses charged under Union County Indictment No. 00-10-1349.1

At the trial, the State presented evidence that on June 6, 2000, M.M. went to a local store to check the balance on her government-benefits card, which she used to purchase food. As she was returning home, defendant and Selles came up behind her, struck her and pressed what M.M. believed was a gun into her back. They forced her to go to a rooming house, where they took her into a small room.

Defendant removed M.M.'s clothes and performed a variety of sex acts upon her, while Selles watched. Selles took M.M.'s earrings and defendant took her key chain. Defendant broke M.M.'s glasses so that she could not see him. Defendant and Selles departed and went to M.M.'s apartment. M.M. left the room and found Sanabria, who was holding a stick. He did not allow her to leave.

About one hour later, defendant and Selles returned. They insulted M.M. and disparaged the belongings they found in her apartment. Defendant started to remove M.M.'s clothing. Defendant took a bottle and put cream on it. He forced M.M. to put more cream on it and hold it, while he pushed it into her vagina with his foot.

Thereafter, Selles thrust a stick into M.M.'s vagina and twisted it. Defendant forced M.M. to perform oral sex upon him. Selles also had oral sex with M.M. Defendant then forced M.M. to submit to anal sex. Selles hit her with the stick and the two men threatened to kill her if she told the police what had happened.

Defendant and Selles left and eventually Sanabria let M.M. leave. When she returned to her apartment, she saw that it had been ransacked. A ring, some cash and other items had been taken. A neighbor called the police for her. M.M. was taken to a hospital, where she was treated for an injury to her eye, a cut in her mouth, a chipped tooth, injuries to her legs and back, and vaginal pain.

An individual told the police he had seen defendant and Selles on the afternoon of June 6, 2000. They looked "sweaty" and Selles was holding a stick. At the scene, the police found a bottle, used condoms, a lotion bottle, a black leather coat with a BB gun in the pocket, a broken eyeglass frame, two keys on a key chain, pubic hair and what they believed were drops of blood.

On June 8, 2000, defendant turned himself into the police. He claimed that he went to a residence known to house prostitutes, and M.M. told him she wanted to be paid before she went with him. They went to Sanabria's apartment. Defendant said he only had oral sex with M.M. and she had demanded more money. He conceded that he ransacked M.M.'s apartment to recover the money she had been paid.

Defendant did not testify, and his statement was read into the record during the trial.

The trial court sentenced defendant on the kidnapping conviction to a term of twenty-nine years of incarceration, with a 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On the burglary conviction, the court sentenced defendant to a consecutive term of eight years, with a four-year period of parole ineligibility. The court merged some of the remaining charges and imposed concurrent sentences.

Defendant appealed and raised the following arguments

POINT ONE

THE ADMISSION OF TESTIMONY IMPLICATING DEFENDANT IN OTHER SEXUAL ASSAULTS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. MOREOVER, COUNSEL'S FAILURE TO OBJECT TO THIS HIGHLY PREJUDICIAL TESTIMONY DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).

POINT TWO

THE JURY INSTRUCTION DID NOT ADEQUATELY CONVEY TO THE JURY THE BRIDGES/BIELKIEWICZ NOTION THAT DEFENDANT COULD BE LIABLE AS AN ACCOMPLICE TO A LESSER DEGREE THAN THE PRINCIPALS. (Not Raised Below).

POINT THREE

IMPOSITION OF PRISON TERMS ABOVE THE PRESUMPTIVE WHICH INCLUDE PAROLE DISQUALIFIERS VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below).

POINT FOUR

THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S KIDNAPPING AND BURGLARY CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE v. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

POINT FIVE

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF THIRTY-SEVEN YEARS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

POINT SIX

DEFENDANT'S CONVICTIONS FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND CONSPIRACY SHOULD MERGE INTO ONE OF THE GREATER CONVICTIONS. (Not Raised Below).

We rejected these arguments and affirmed the convictions but remanded for reconsideration on a sentencing issue. State v. Fernandez, No. A-2858-03 (App. Div. Feb. 9, 2006) (slip op. at 15-16).

Defendant filed a petition for certification and raised, among other things, issues regarding the sentences imposed. The State filed a cross-petition for certification.

The Court granted defendant's petition on the sentencing issue raised, and remanded the matter to the trial court for re-sentencing. State v. Fernandez, 191 N.J. 313-14 (2007). The Court denied the State's cross-petition. State v. Fernandez, 191 N.J. 317 (2007). On remand, the trial court imposed the same sentences that had been originally imposed.

Defendant thereafter filed a petition for PCR, alleging that his petition was not subject to any procedural bar; he was denied the effective assistance of counsel; and his sentence is illegal. Defendant amended the petition and added a claim that he was entitled to a new trial based on newly-discovered evidence.

On September 4, 2012, the PCR court heard oral argument on the petition. On December 21, 2012, the court filed a written opinion and order denying PCR. This appeal followed.

Defendant argues

POINT I

THE PCR COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING.

A. The PCR Court Erred by Denying the

Defendant an Evidentiary Hearing After He Clearly Established a Prima Facie Case.

B. The Court Erred by Making a Credibility

Finding Without First Conducting an Evidentiary Hearing.

POINT II

THE PCR COURT JUDGE HAS DEMONSTRATED BIAS, AND THIS MATTER SHOULD THEREFORE BE REMANDED FOR AN EVIDENTIARY HEARING BEFORE A DIFFERENT JUDGE.

POINT III

THE PCR COURT ERRED BY FAILING TO RULE ON THE ISSUE RAISED BY DEFENDANT TO CORRECT AN ILLEGAL SENTENCE.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show 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.

Here, defendant claims that he was denied the effective assistance of counsel because his trial attorney failed to adequately investigate certain facts pertaining to M.M.'s use of her government-benefits card on June 6, 2000. He also contends that his attorney erred by failing to present the testimony of D.H.

We note initially that, in the PCR court, defendant argued, among other things, that he was entitled to a new trial based on certain newly discovered evidence. He presented the court with a series of letters, written by the Deputy County Counsel for Union County, in response to questions of PCR counsel concerning M.M.'s use of her benefits card. He also presented a sworn statement from D.H., in which she stated that she and M.M. had engaged in prostitution and the use of illegal drugs. According to defendant, this evidence would have shown that M.M. "lied" in her testimony at trial.

In his opinion, the PCR judge stated that the letters from the Deputy County Counsel concerning M.M.'s use of her benefits card were "of little value" to defendant. The judge noted that the letters indicated that the Union County Division of Social Services (UCDSS) had not been able to answer the questions about M.M.'s use of the card with any certainty. The judge pointed out that the responses to the inquiries were "constantly changing." The judge also stated noted that, as an admitted prostitute and user of illegal drugs, D.H. would have limited credibility.

The judge concluded that the letters regarding M.M.'s benefits card, and D.H.'s statement would not have made a difference in the outcome of the case, in view of the strong evidence of defendant's guilt. The judge stated that M.M. had been a credible witness. He noted that M.M. told a "harrowing story" at trial, which was corroborated by, among other things, the recovery of the stick used in the assault; the physical injuries sustained in the attack; the testimony of a physician, who said that M.M's vaginal injuries were the worst he had ever seen; the ransacking of M.M.'s apartment; the discovery of a bottle with M.M.'s DNA on it; and portions of defendant's statement to the police. The record supports the PCR court's assessment of the evidence.

Furthermore, even if we assume that defendant's attorney was deficient in failing to investigate the facts concerning M.M.'s benefits card, and should have presented testimony from D.H. at trial, we are convinced, for the reasons stated by the PCR judge, that this evidence would not have led to a different result. As the judge found, there was strong evidence of defendant's guilt, which would not have been overcome by the evidence regarding the benefits card and M.M.'s alleged prostitution and drug use.

We also reject defendant's contention that the PCR judge erred by failing to conduct an evidentiary hearing on the petition. An evidentiary hearing is only required on a PCR petition when a defendant establishes a prima facie case in support of PCR, there are material issues of fact that cannot resolved based on the existing record, and the court determines that an evidentiary hearing is required to resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "A prima facie case is established when a defendant demonstrates 'a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).

Here, there was no genuine issue of material fact relative to defendant's claim of ineffective assistance of counsel. The PCR judge viewed the evidence in the light most favorable to defendant, and correctly determined that defendant had not established a prima facie case in support of PCR. The judge correctly found that an evidentiary hearing was not required. Id. at 354; see also State v. Preciose, 129 N.J. 451, 462 (1992).

We have considered defendant's other arguments and find that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 Andres Sanabria was also charged in the indictment. He was tried separately.