STATE OF NEW JERSEY v. FREDDIE CADENA

NOT FOR PUBLICATION WITHOUT THE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.

FREDDIE CADENA,

Defendant-Appellant.

_________________________________

February 6, 2014

Submitted January 13, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-02-0200.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A.

Festa, Senior Assistant Prosecutor, of counsel and on the brief; Catherine E. LaQuaglia,, Legal Intern, on the brief).

PER CURIAM

Defendant Freddie Cadena appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.

Indicted for first-degree murder, N.J.S.A. 2C:11-3a(1) or (2), defendant ultimately pled guilty to the lesser charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), pursuant to an agreement that called for a minimum thirteen-year prison term subject to an eighty-five percent period of parole ineligibility. At the plea hearing, it was established that on October 16, 2005, defendant, an accomplished professional boxer who had won ten of his first fifteen bouts by knockout, went to the Rio Grande nightclub in Paterson where he knew he would find the victim, who was dating defendant's ex-girlfriend and mother of his child. Upset about that situation, defendant confronted the victim, whom he knew had been drinking alcohol, and the two went outside. During the confrontation, defendant struck the victim with a bare-knuckles punch to the head. The victim immediately fell to the ground, unconscious and bleeding from his nose, mouth and ears. Defendant left the scene without notifying anyone of what had happened or calling for help. The victim was eventually brought to the hospital where he died from massive head trauma. During his guilty plea, defendant admitted that he had acted with "extreme indifference" to the victim's life.

At sentencing, defense counsel argued for a sentence less than the minimum thirteen years contemplated in the plea agreement, and offered several mitigating factors in support, including defendant's four dependent children, the particular circumstances surrounding the crime, defendant's state of mind and the fact that he had lived in the area for an extended period of time. Balancing these considerations with the aggravating factors, including most significantly, defendant's extensive criminal record, the judge sentenced defendant in accordance with the plea agreement.

Defendant's direct appeal was heard on our Excessive Sentencing Oral Argument calendar. We affirmed the judgment of conviction save for the portion of the sentence imposing restitution, which was vacated and remanded for an ability to pay hearing.

Defendant filed a timely PCR petition in which he claimed counsel was ineffective for failing: (1) to object to the sentencing judge's weighing of the aggravating and mitigating factors; and (2) to challenge the lack of a factual basis for the indictment and guilty plea. The PCR judge rejected these arguments and denied the petition, finding no basis in the record to challenge either the indictment or guilty plea, or to support the mitigating factors urged by PCR counsel. The judge concluded:

Defense counsel in this case thoroughly tested the process. There were numerous status conferences conducted in this case prior [to] the plea. This defendant had four prior felony convictions and was extended term eligible even if convicted of a lesser included offense to murder. The plea transcript . . . show[s] defense counsel reviewing this with the court, prosecutor and the defendant. The resulting plea of 13 years when defendant faced life in prison is testament to the fact defense counsel thoroughly tested the process.

On appeal, defendant challenges the adequacy of the mitigating factors raised by defense counsel and the failure of trial, appellate and PCR counsel to challenge the sufficiency of the factual basis:

I. THE PCR COURT BELOW ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL FAILED TO ADVANCE ANY MITIGATING FACTORS ON DEFENDANT'S BEHALF.

II. PCR COUNSEL NEGLECTED TO ARGUE THAT TRIAL AND APPELLATE COUNSEL FAILED TO OBJECT TO THE INSUFFICIENT FACTUAL BASIS, WARRANTING A REMAND.

III. DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

We find no merit to these contentions. R. 2:11-3(e)(2).

It is axiomatic that, in order for defendant to

obtain relief based on ineffective assistance grounds, he is

obliged to show not only "that counsel's performance was deficient[,]" but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Defendant argues that counsel did not adequately advocate mitigating factors two, three, eight and twelve, N.J.S.A. 2C:44-1b(2), (3), (8) and (12). We disagree.

In the first place, counsel successfully persuaded the court to sentence defendant to the lowest term recommended under the plea agreement. In this regard, counsel argued in mitigation of the sentence the hardship resulting to defendant's dependents and effectively proffered a self-defense explanation for defendant's actions and state of mind on the night of his encounter with the victim. Counsel also argued against the aggravating factors advocated by the State.

Those additional mitigating factors now being urged find no support in the record. Given defendant's accomplishments and experience as a professional boxer, it cannot reasonably be said that he did not contemplate that his punch to the head would cause his victim serious harm. N.J.S.A. 2C:44-1b(2). Nor did defendant act under "strong provocation[,]" N.J.S.A. 2C:44-1b(3), by virtue of the victim simply being in a relationship with defendant's former girlfriend. Defendant points to no other action or conduct by the victim that would have instigated such a violent response on defendant's part. Relatedly, there is nothing in the record to suggest these circumstances likely will not reoccur, N.J.S.A. 2C:44-1b(8), given defendant's past history of domestic violence and his apparent continuing involvement in his ex-girlfriend's life. Lastly, there is also no basis to find defendant willingly cooperated with the authorities, N.J.S.A. 2C:44-1b(12), since his guilty plea alone does not so qualify. Cf. State v. Dalziel, 182 N.J. 494, 505 (2005). Thus, defendant's blanket claim that he would have received an even lower sentence had counsel more effectively argued in mitigation thereof fails when measured against the record, which contains no support for the factors he argues should have been advanced.

Equally meritless is his claim that counsel failed to challenge the probable cause for the murder charge and the factual basis for the guilty plea to aggravated manslaughter. The grand jury's finding of probable cause for defendant's murder charge is presumptively valid, Zalewski v. Gallagher, 150 N.J. Super. 360, 368 (App. Div. 1977); see generally State v. Ramseur, 106 N.J. 123, 232 (1987); Calafano v. Kuenstler, 53 N.J. Super. 379, 385 (App. Div. 1958), and defendant points to no evidence of false testimony or other bad faith practices to overcome that presumption.

As for the factual basis for the guilty plea, to prove aggravated manslaughter, it must be shown that the defendant recklessly caused death "under circumstances manifesting extreme indifference to human life[,]" thus elevating "the risk level from a mere possibility [sufficient for reckless manslaughter] to a probability." State v. Curtis, 195 N.J. Super. 354, 364 (App. Div.) (quoting N.J.S.A. 2C:11-4a(1)), certif. denied, 99 N.J. 212 (1984). "The relevant 'circumstances' are objective and do not depend on defendant's state of mind." Ibid. Thus, the degree of recklessness is determined by the likelihood that death would result from a defendant's conduct, considering all the surrounding circumstances. Id. at 364-65.

Objectively viewed, the guilty plea record established that defendant's actions created a high probability of death without regard to the consequences. Defendant, a professional boxer, punched the victim in the head, a most delicate part of the body to endure such a violent blow. The victim, known to defendant to have been possibly impaired by alcohol, fell and struck the concrete, rendering him unconscious and bleeding. And most significant in proving "extreme indifference," defendant left his victim bleeding and unconscious without attempting to administer aid or call for help. Under all these circumstances, admitted to at the guilty plea hearing, defendant's reckless conduct exhibited extreme indifference to human life, creating the risk that death would likely follow. Thus, we discern no deficiency on counsel's part in failing to challenge either the indictment charging murder or defendant's guilty plea to the lesser offense of aggravated manslaughter.

Affirmed.